19.53

Bn.sir-ul-Huq

and Others

The State of lV eNt Ben.gal.

. 11'1ohajan J.

19.53

April 14.

SUPREME COURT REPORTS [1953]

offence under section 297 could be said to have been made out. This point, in our opinion, "is not open at this stage, it having been held that all the ingredients of the offence had been established on the record.

Even otherwise there is no substance in the contention because the prosecution evidence is sufficient to hold the offence proved against all the appellants .

For the reasons given above we hold that there is no substance in these appeals and they are accordingly dismissed.

Appeals dismissed.

Agent for the appellants: Sukumar Ghose.

Agent for the respondent: P. K. Bose.

Agent for the complainant: 8. C. Bannerjee.

LAKSHMANA NADAR AND OTHERS

R. RAMIER.

[MEHR CHAND MAHAJAN and S. R. DAS JJ.]

Hindu law-Will--Beqiwst to wife for her lifetime and to daitghter absolutely after wife's lifetime-Estate taken by wife-

TVhether ordinary life estate or Hindn widow's estate-Danghter's estate-Whether vested-Death of daitghter be/ore widow, effect of

-Constrnction of Hindn will-Gnidina principles.

A Hindu Brahmin governed by the l'IIitakshara law made a \vill in \vhich he gave the following directions: "After my life. time, you, the aforesaid Rauganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties ... After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alie.nation such as gift, exchange and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to 0, wife of iny late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed." After the death of the testatol' his \vife entered into possession of his properties bnt Lefore the r1eath of his wifo, his daughter and all her children died: Held, (i) that on a proper constrndion of the will in the light of surrounding circumstances, the testator had conferred on bis

I I

S.C.R.

Sl:PREME COURT REPORTS 849

v-iife only an or<linary life estate, and alien'.ttions made by her would not endnrebeyond her lifeti1ne :

(ii) that tlie testator's <laughter obtained under the will a vested interest in the properties after the lifetime of the widovt, to which her husband succeeded on her death.

The rule of const!uction by analogy is a dangerous one to follow in construing 'i\rills differently \\rorded 1 and executed in different surroundings.

Ram Bahadur v. Jaoer Nath Prasad (3 Pat. L .. J. 199), Pavani Subbamma v. Ammala Rama Naida ([!937] l :II.L.J. 2GS), Natlrn Rain j\fohajan v. Ganqa, Bai ([1938] 2 M.L.J. 562), Vasantn Rao Ammennarnrna v. Venkata Kodanda Rao ([1940] I )'f.L,, T.188), Jlaharaja of Kolhapur v. Sundarmn Iyer (I.L.R. 48 :Vlad. 1), Maha-med Shni11, sool '" Shewakram (2 I.A. 7), Rotna Chetty v. Nara.11anr; swami Chetty (26 :11.L .. J. 616), Mst. Bhaowati Devi v. Chowdry Bholona.t/1 Thttkur (2 !..\. 256) and L•zllu v. Jagmohan (LL.R. 22 Born. 409) re£errecl to.

Jnclgment oft.he }fadras High Court affirmed.

C1vrL

APPELLATE JuRISDIC1'ION; Civil Appeal No. 95 of 1952. Appeal from the judgment and decree dated the 27th February, 1950, of the High Court of Judicature at Madras (Rao and Ayyar , JJ.) in Appeal No. 635 of 194G arising out of judgment and decree dated the 13th August, 1946, of the Court of the Subordinate Judge of Tinnevelly in Original Suit No. 50 of 1945.

K. S. Krishnaswarny Iyengar (S. Rarnachandra Iyer, with him) for the appell::mts.

K. Ra; jah Iyer (R. Ganapathy Iyer, with him) for the respondent.

1953. April 14.

The Judgment of the Court was delivered by

lAHAJAN J.-One Lakshminarayana Iyer, a Hindu Brahmin, who owned considerable properties in the Tirunclveli district, died on 13th December, 1924, leaving him surviving a widow Ranganayaki, and a married daughter Ramalakshmi.

Ramalakshmi had married the plaintiff and had a number of children from him. They were all alive in December, 1924, when Lakshminarayana died, Before his death he .

JlU

195, J

Lakshntana.

Nadar and

Olh61's

R. Ramier

Lakshmana Nadar on.d

Otl1erB ,._

R. Rrunh~

Jfahaja11 J.

SUPREME COUHT REPORTS [1953]

executed a will on 16th November, HJ24, the construction of which is in controversy in this appeal.

By this will he gave the following directions:-

"After my lifetime, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime, enjoy the aforesaid entire properties, the outstandings due to me, the debts payable by me, and the chit amounts payable by me.

After your lifetime Ramalakshmi Ammal, our daughter and wife of Rama Ayyar Avergal of Melagaram village, and her heirs shall enjoy them with absolute rights and powers of alienation such as gift, exchange, and sale from son to gfamlson and so on for generations.

As regards the payment of maintenance to be made to Chinnammal alias Lakshmi Ammal, wife of my late son Hariharamayyan, my wife Ranganayaki Ammal shall pay the same as she pleases, and obtain a release deed".

Ranganayaki entered into possession of the properties on the death of her husband.

On 21st February, 1928, she settled the maintmmnce ulaim of Lakshmi Ammal and obtained a deed of release from her by paying her a sum of Rs. 3,350 in cash and by executing in her favour an agreement stipulating to pay her a sum of lb. 240 per annum.

Ramalak8hrni died on 25th April, 1938 during the lifetime of the widow.

None of her children smvived her.

On the 24th July, 1943, the widow describing hernelf as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for Rs. 500.

On the 18th September, 1945, the suit out.of which this appeal arises was instituted hy the plaintiff, the husband and the sole heir of Ramalakshmi, for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. A prayer was made that the widow be restrained from alienating the other properties in her possession. On the 19th September, 1945, an ad interim injunction was isshed by the High Court restraining the widow from alienating the properties in her possession and forming part of her husband's estate, In

S.C.R.

SUPREME COCRT REPORTS

S51

spite of this i11junetion, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants comprising a number of prnperties.

The plaintiff was allowed to amend his plaint and include therein a prayer for ,,, declarntion in respect of the invalidity of these alienations as well. It was averred in the plaint that Ramalakshrni obtained a ,-csted interest in the suit properties under the will of her father and plaintiff was thus entitled to maintain the suit.

The defendants pleaded that the pfaintiff had no title to maintain the suit, tlmt the widow was entitled

under the will to an absolute estate or at le8, st to an estate analogous to and not less than a widow's est:i, te, that the estate given to Rarnalakshmi 11.ndcr the will was but a contingent one and she having predeceased the widow, no interest in the suit properties devolved on the plaintiff.

The main issue in the suit was whether the widow took under the wilJ >tn 1ilJRolute estate or an estate like the Hindu widow's csbtP and whether the daughter's interest therein was in the nature of a eontingent remainder, or whether she got in the properties a vested interest.

The subordinate judge held that the widow took under the will a limited life interest, and not an atmolute estate or even a widow's estate under Hindu law, and that the daughter got thereunder 11, vested interest in the properties to which the plaintiff succeeded on her death. In view of this finding ho granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in t.lie suit properties and that the alienations made by her would not enure beyond her lifetime.

The question as to the Ya!idity of the alienations was left undetermined. The unsucPessful defendants preferred an appeal against this decree to the High Court of Judicature at Madras.

During the pendency of the appeal the widow died on 14th February, 1948.

The High Court by its judgnwnt under appeal affirmed the decision of the trial

judge 11ml maintained his view on the eonstruction of the will. Leave to appeal to the Supreme Court was

Laf(sh1na.na

1Vadar anrf.

Other,~

R. Rainier

Lahshniana

:::..iadar and

Others

v. .

R. lrr.unier

.ilf ahajan J.

852 SUPREME COtR'.t REPORTS [1953]

granted and the appeal was admitted, on the 27th November, 1951.

The substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a full woman's estate under Hindu law or merely a limited life estate in the English sense of that expression. It was not contested before us that a Hindu can by will create a life estate, or successive life estates, or any other estate for a limited term, provided the do nee or the persons taking under it are ca pable of taking under a deed or will. The decision of the appeal thus turns upon the question whether the testator's intention was to give to his widow an ordinary life estate or an estate analogous to that of a Hindu widow. At one time it was a moot point whether a Hindu widow's estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer by means of a will on his widow the same estate which, she would get by inheritance. The widow in such a case takes as a dernisee and not as an heir. The court's primary duty in such cases is to ascertain from the language employed by the testator "what were his intentions", keeping in view the surrounding circumstances, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc. ; in other words, to ascertain his wishes by putting itself, so to say, in his armchair.

Considering the will in the light of these principles, it seems to us that Lakshrninarayana Iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in those properties should come to an end on her death, that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation, gift, exchange and sale from generation to generation. He wished to make his daughter a fresh stock of descent so that her issue, male or female, may have the benefit of his property. They were the real pe1'sons whom he earmarked with certainty as the ultimate recipients of

S.C.R.

S"GPREME COl'RT REPORTS 853

his bounty. In express terms he conferred on his daughter powers of alienation by way of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such powers.

The direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. Though no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind's eye his daughter and her heirs as the ultimate beneficiarios of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow's estate on her the daughter will, only have a mere speti successionis under the Hindu law which may or may not mature and under the will her interest would only be a contingent one in what was left undisposed of by the widow.

It is significant that the testator did not say in the will that the daughter will enjoy only the properties left undisposed of by the widow.

The extent of the grant, so far as the properties mentioned in the schedule are

concerned, to the daughter and the widow is the same.

Just as the widow was directed to enjoy the entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were it!so directed to enjoy the same properties with absolute rights from generation to generation.

They could not Pnjoy the same prope1ties in the manner directed if the widow had a full Hindu widow's estate and had thl' power for any purpose to dispose nf them and did so. lf that was the intention, the testator would cleal'ly

have said that the daughter would only take the pro- . perties remaining after the death of the widow.

The widow cannot be held to have been given afull Hindu widow's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes, whether in express terms or by necessary implication. As above pointed out, admittedly power of alienation in express terms was not conferred on her.

It was argued

Lnkshtnana

J>ladar and

Others

H. Ramier

1U a.hajan J.

Lr:iksh1nana.

!:'..ndar anrl

Other~

v, R. rlamier

Jfah.itjau J.

SUPREME COURT HEPORTS [1953:

that such a power was implicit within the acts she was authorized to do, that is t"o say, when she was directed to pay the debts and settle the maintenance of Ramalakshmi it was implicit within these directions that for these purposes, if necessity a.rose, she could alienate the properties. This suggestion in the surrounding circumstances attending the execution of this will cannot be sustained.

Tho properties disposed of by the will nnd mentioned in the schedule were considerable in extent nnd it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will.

Indeed we find that within four years of the denth of the testator the widow was able to pay a lump sum of I{s. 3,350 in cash to the daughter-in-law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. It is not shown that she alienated a single item of immovable property till the year 1945, a period of over 21 yearn after the death of her husband, excepting one, which she rdienated in the year 1937 to raioc a sum of Rs. 1,000 in order to buy some land.

Uy this transaction she substituted one property by another. .For the purpose of her maintenance, for payment of debts etc., and for settling the claim of the daughter-in-law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must lmve of necessity intended to confer on the widow power of alienation for those limited purposes ca.nnot he raised. In onr opinion, even if that suggestion is accepted that for the limited purposes meutioned in the will the widow could alienate, this power would fall far short of he powers that a Hindu widow enjoys under Hindu law.

Under that law she has the power to alienate the estate for tho benefit of the soul of the husband, for pilgrimage and for the benefit of the estate and for

__ ..

S.C.H.

SVPREME COFRT REPOitTS 855

other authori.zed purposes. It cannot be said that a Hfodu widow can only alienate her husband's estate for payment of debts, to meet maintenance charges and for her own maintenance.

She represents the estate in all respects and enjoys very wide power except that she cannot alienate except for necessity and her necessities have to be judged on a variety of considerations.

We therefore hold that the estate conferred on Ranganayaki A mrnal was more like the limited estate in the English sense of the term than like a full Hindu widow's estate in spite of tho directions above-mentioned.

She had complete control over the income of the property during her lifetime hut she had no power to deal with the corpus of the estate and it had to he kept intact for the enjoyment of the daughter. Though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time and she thus got, an interest in it on the testator's death. She was given a present right of future enjoyment in the property. According to Jarman (Jarman on Wills), the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator's properties on his death.

It was Btrenuously argued by .Mr. K. S. Krishnaswami lyengar that Lakshminarayana Iyer was a Brahmin gentleman presumably versed in the sastras, living in a village in the southernmost part of the Madras State, that his idea of a restricted estate was more likely tu be one analogous to a Hindu woman's estate than a life estate as understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow's estate and the dnughter got under it a contingent remainder in the nature of 8JJes and on her death tliere was nothillg which

could devolve on the plaintiff and he thus had no loc, us

t(l, ndi to question the alienations made by the widow,

Lakshrnana..

.1..Vadar and

Others

Ji.. Raniier

.1..li ahajan J.

SBPREME COURT REPORTS [1953]

La.ksh1na na Nadar and

Othrrs

The learned counsel in support of his CO\ltention drew our attention to a number of decisions of different High Courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions.

This rule of construction by analogy is a dangerous one to follow in construing wills different.Iv worded and executod in different surroundings. [V.ide Sasiman v. Shib Narain (1)].

However,

v. n. Ramier

Mahajan J.

out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them.

Mr. Krishnaswami Iyengar sought to derive the greatest support for his contention from the decision in Ram Bahadur v. Jager Nath Pmsad ('). The will there recited that if a daughter or son was born to the testator during his lifetime, such son or daughter would be the owner of all his properties but if there was no son or daughter, his niece S. would get a

heque, t of a lakh of rupees, and the rest of the movable and immovable properties would remain in possession of his wife until her death, and after her these would remain in possession of his niece.

The remainder was disposed of in the following words: -

"If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother's daughter, then two-thirds of the movable property will belong to the son and one-third to the daughter. But as regards the immovable property none shall have the lest right of alienation.

They will of course be entitled to enjoy the balance left after payment of rent".

This 'ill was construed as conveying an absolute estate to the son and the daughter of the nieue. It was remarked that in spite of an express restriction against alienation, the estate taken by S. (the niece) was an estate such as a woman ordinarily acquires by inheritance under tho Hindu law which she holds in a completely representative Pha.racter but is unable to

(1) 49 !. A. 25.

(2) 3 Pat. LJ. 199.

S.C.R.

SUPREME COURT REPORTS 857

alienate excep~ in case of legal necessity and that such a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of his property.

The provisions contained in this will bear no analogy to those we have to construe. The restraint against alienation was repugnant to both a life estate and a widow's estate and was not, therefore, taken into account. But there were other indications in that will showing that a widow's estate had been given. The fact that the gift over was a contingent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow's estate. There is no such indication in the will before us.

Reliance was next placed on the decision in Pavani Subbamma v. Ammala Rama Naidu (1).

Under the will there dealt with, the widow S, was to enjoy the prnperties and after her lifetime the properties were to be taken in the ratio of three to five by the son's daughter and the daughter's son 1:espectively. A suit was instituted by the son's daughter for the recovery of possession of her share in one item of property forming part of the estate which had been sold by S.

The question for decision in that case was whether S. was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. Varadachari J. held that since in the will the gift over to the grand-children was of the entire properties, and not a mere gift by way of defeasance, it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest.

This doeision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned Judge proceeded to say " In deference to the view taken in 111ahara; ia of Kolhapur v. Sundararn Iyer('), it may be possible to create an interest analogous to a woman's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by S. need not necessarily be only a life estate in the English law

(1) (1937) l ll.L.j. 268,

JJJ

(2) (1925) l.Ll<. 48 lfad. I.

Laksh1nana

Nadar and

Othera

R .. Rainier

.Ji ahajan J.

Lakshmana

Nadar and

Others

R. Ramier

,"\fahajan J,

SVPREME COURT REPORTS [1953]

sense of the term." We do not understand how such passing observations can be helpful in' deciding the present case. Assuming that it is possible to create a Hindu woman's estate notwithstanding the addition of a gift over, the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration.

The following remarks in the Privy Council decision in Nathu Ram ilfahajan v. Gangabai(') were next cited:-

As the will gave her the right to 'enjoy' the income of the estate during her lifetime, it was evidently contemplated that she should, as provided by the Hindu law in the case of a widow, be in possession of the estate."

Such casual observation made in respect of a will couched in entirely different terms cannot afford much assiHtance in the decision of the case.

In Va.santharao Ammannamma v. Venkata Kodanda Rao Pantulii('), the next case cited, a Hindu testator who was a retired subordinate judge provided by his will as follows :-

"Out of the afore;; tated ancestral lands, the oneninth share to which I am entitled shall be enjoyed after my death by my wife till her death, and after her death it shall pass to S. son of my second elder brother deceased. My self-acquired properties shall on my death he enjoyed by my wife till her death and after her death they shall pass to my daughter. Thereafter they shall pass to my grandson through my daughter".

The will was construed as giving the self-acquired properties ultimately to the grandsons, and the estate of the daughter was likened to an estate which she would take under the law of inheritance, that is a limited estate analogous to a widow's estate. At page 193 of the report it was observed as follows:·-

"The question therefore arises, did he intend to confer only a life estate or a daughter's estate ? It seems

(I) (1938) Z M.L.J. 562. lz) (1940) l M.L.J. 188.

S.C.R.

SL'PREME COl'RT REPOR'l'S 859

to us that he meant to give a daughter's estate rather than a life estate. lie omits the words 'rforing her life' with reference to the disposition in fuvour of the dau{Jhter.

The words 'pass to my daughter' would rather indicate that in the ordinary comse of devolution the estate should pass to her, that is, the daughter and then to the grandsons. The words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons, but on the other hand, what he says is that through his daughter the estate shall pass to his grandsons.

Either he must have intended that the daughter should convey the property either by will or inter vivas to the grandsons or Rhe having taken the estate, through her it should pass to the grandsons in the ordinary course of devolution. If it was the daughter's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a ve1ited interest".

This line of reasoning which appealed to the learned judges is not of much help to us here as the language in this will is quite different. If the same line of reasoning is adopted here, the decision of the case would go against the client of Mr. K. S. K. Iyengar because in the will in this case the widow's estate is delimited by the words " till yom lifetime."

Reliance was next placed on 21Iaharaja of Kolhapur

v. Sundaram Iyer('). That was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. There it was said that "the widows of Sivaji Haja got the gift of a life estate very much resembling the ordinary estate of a Hindu widow and with all the incidents of a widow's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance." These remarks do not throw much light on the point before us.

The last decision referred to was the decision of the Privy Council in Jlfohomed Shumsool v. 8he1rnkram (').

There a Hindu inhabitant of Bihar by a document of

(I) (1925) l.L.R. 48 }lad. 1.

(2) (1874-75) 'I.A. 7

Laksh1nana

1'..tadar an.a

Otheh

H. lfa1nier

Mahajan J.

Lakshmana Nadarand

Others

R. Ranier

MahajanJ.

860 SUPREME COUR'r REPORTS [1953]

a testamentary character declared his daughter who had two daughters, as his heir, and after'her, her two daughters together with their children were declared heirs and malik. One daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son, the respondent in that case. In a suit by the respondent against his grandmother the daughter of the testator for a declaratory order preserving unmolested his future right and title to the said lands, it was held that the daughter took an estate subject to her daughters succeeding her. In this judgment the following obser_vations were emphasized as relevant to this enqmry :-

" It has been contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that 2\'Ist. Rani Dhun Kaur should not take an absolute estate, but that she should be succeeded in her estate by her two daughters. In other words, that she should take an estate very much like the ordinary estate of a Hindu widow.

In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property. It may be assumed that a Hindu generally desires that an estate, especially an ancestral estate, shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule, at all events, women do not take absolute estates of inheritance which they are enabled to alienate."

These observations are unexceptionable but it may also be pointed out that it is open to a Hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every ease he may not confer upon her by will a Hindu widow's estate which she would otherwise get by inheritance. Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise

s.c.:R.

SUPREME COURT REPORTS 861

where a Hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. The question in every case cannot be determined merely on the theory that every Hindu thinks only about a Hindu widow's estate and no more. \Vhat is given must be gathered from the language of the will in the light of the surrounding circumstances.

The learned counsel for the respondent followed the line adopted by Mr. Krishnaswami Iyengar. He also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour.

In the first instance, he placed reliancP on a decision of the Madras High Court in Ratna Chetty v. , Narayanaswami Chetty( 1).

There the testator made a will in favour of his wife providing, inter alia, "all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and Mutha Arunachala Chctty

(nephew) and my wife should live together amicably as of one family. If the two could not agree and live together amicably, my wife would pay Rs. 4,000 and separate him and then my wife would enjoy all the remaining properties with absolute rights. If both of them would live together amicably, :\fothu Arnnachala Chetty himself would enjoy the properties which remain after the death of the widow." It was held upon the construct.ion of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry.

Reference was also made to the decision of their Lordships of the Privy Council in M st. Bhagwati Devi

v. Chowdry Bholonath Thalcur('). This was a case of a gift inter vivos. The gift to Mst. Chunderbutti, his wife, was in these terms :-

(I) I 1914) 20 M.L.J. 616.

12) (1874-75) 21.A 256.

19~3

La!shmna

Nadar and

Others

R. Ra1nier

lfahajan J,

Laksh1naru

Nadar and

Others

ll. Rainier

ilfahaja.n J.

SUPREME COURT REPORTS [1953]

" the remaining ' milkiut ' and • minhai ' estEctes, together with the amount of ready rrionoy, articles, slaves, and all household furniture I have placed in the possession of Mst. Chunderbutti Thakurain, my wife, to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves; that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakur, my karta (adopted son)."

The subordinate judge held that Chunderbutti got an estate for life with the power t, o appropriate profits and Girdhari -got a vested remainder on her death.

The High Court took a different view and held that Chunderbutti took the estate in her character as a Hindu widow. The Privv Council on this will held as follows :--- " " Their Lordships do not feel justified, upon mere conjecture of what might probably have been intended, in so interpreting it as materially to change the nature of the estate taken by Chunderlmtti. If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that. at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other hand, she would have certain rights as a Hindu widow; for example, she would have the right under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether.

She certainly would have the power of selling her own estate; and it would further follow that Girdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute

S.C.l~.

SUPREME COURT REPORTS

of limitations might run against the heirs to the estate, whoever they inight be.

Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing it ttccording to its plain meaning."

These observations have to a certain extent relevance to the present case but on the facts this case is aho distinguishable. This will was couched in different; language than the will in the present case. There was a clear prohibition, forbidding the widow to make any transfers of the milkiut estates and the slaves.

Reference was also made to a decision of the Bombay High Court in Lallu v. Jagmohan('). The will there ran as follows:-

"When I die, my wife named Suraj is owner of that property. And my wife has powers to do in the same way as I have absolute powers to do when I am present, and in case of my wife's death, my daughter Mahalaxmi is owner of the said property after that."

It was held that Suraj took only a life estate under the will, with remainder over to Mahalaxmi after her death and the bequest to Mahalaxmi was not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs.

After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was conistent with the testator's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow's estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance

(r) (1898) I.LR. 22 Born. 409.

Laksh1nana

}.tadar and

Others v.

It. Ramier

Mahajan J •.

Lakshniana.

Nadarand

Others

v, R. Ratn-ier

Mahajan J,

SUPREME COGRT REPORTS [1953]

negatived the view that the testator intended to confer upon his widow a Hindu widow's estate' as she wo,.ild get in case of intestacy.

He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow's estate "till your lifetime " and of the omission from therein of words such as malik etc., while describing the widow's estate.

Mr. Krislrnaswami Iyengar, on the other hand, 0011tended that the absence of any words in the will 1eRtricting her powers of alienatio~1 and putting a restraint on them, suggested a contrary intE'ntion and that the daughter's estate was described as coming into being itfter the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the' notions of Hindus a full Hindu widow's estate. In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated nnd in the result, therefore, we dismiss this appeal with costs.

Appeal dismissed.

Agent for the appellant: JYI. S. K. Aiyangar.

Agent for the respondent : Ganpat Rai.

section 297

Sukumar Ghose

P. K. Bose

C. Bannerjee

LAKSHMANA NADAR AND OTHERS

R. RAMIER

MEHR CHAND MAHAJAN

S. R. DAS JJ.

Rauganayaki Ammal

Ramalakshmi Ammal

Ranganayaki Ammal

Rao

Ayyar

K. S. Krishnaswarny Iyengar

S. Rarnachandra Iyer

K. Ra

R. Ganapathy Iyer

Lakshminarayana Iyer

Ramalakshmi

Ramalakshmi

Lakshminarayana

Lakshmana Nadar

R. Rrunh~

SUPREME COUHT REPORTS

Rama Ayyar Avergal

Melagaram village

gfamlson

Chinnammal alias Lakshmi Ammal

Hariharamayyan

Ranganayaki

21st February, 1928

Lakshmi Ammal

25th April, 1938

18th September, 1945

19th September, 1945

Ramalakshrni

Rarnalakshmi

High Court of Judicature at Madras

Supreme Court

R. lrr.unier

Lakshrninarayana Iyer

S"GPREME COl'RT REPORTS 853

Lnkshtnana

H. Ramier

s. 3

Ranganayaki A mrnal

Jarman

K. S. Krishnaswami

Lakshminarayana Iyer

Madras State

Vadar

Raniier

Mahajan

Krishnaswami Iyengar

S.

Varadachari

R. Ramier

\fahajan

S 859

K. S. K. Iyengar

Sivaji Haja

Lakshmana Nadarand

R. Ranier

MahajanJ.

Krishnaswami

Madras High Court

Mutha Arunachala Chctty

\fothu Arnnachala Chetty

Chunderbutti

La!shmna

Nadar

R. Ra1nier

lfahajan J

Chunderbutti Thakurain

Girdhari Thakur

Girdhari

Chunderlmtti

Bombay High Court

Suraj

Mahalaxmi

Rajah Iyer

Krislrnaswami Iyengar

JYI. S. K. Aiyangar

Ganpat Rai


8.C.R.

SUPREME COURT REPORTS

THE STATE OF ASSAM

KESHAB PRASAD SINGH AND ANOTHER.

GAMIRI KHARI CHAIDUAR FISHERMEN

SOCIETY LTD. v.

KESHAB PRASAD SINGH.

[MEHR CHAND MAHAJAN, VrvrAN BosE and

JAGANNADHA DAS JJ.]

Assam Land and Revenue Regulation (I of 1886), s. 16, Rules 190, 190A, 191-Settlement of fisheries---Direct settleme11t under r. 190A ofter a1wtion by Deputy Commissioner and on his recommendation--Whether settlement of Deputy Commissioner under Rules, or execntive act of State-Appeal to Hic1h Court-Maintaina.bility.

The Government of Assam, desiring to settle a fishery direct under'" 190-A of the rules framed under the Assam Land and Revenue Regulation (I of 1886), directed the Deputy Commissioner concerned to put the fishery to auction and submit the bid list to Government with his recommendation for direct settle~ ment.

The Deputy Commissioner accordingly auctioned the fishery and submitted the bid list with a recommendation in the first respondent's favour.

Government sanctioned the settlement of the fishery wi_th the first respondent and the latter was informed of the acceptance of the bid and directed to make the deposits.

Government received two more petitions on the same day for

reconsideration of the orders passed and three weeks later Government reviewed its order and settled the fishery with another person.

The first respondent preferred an appeal to the High Court under r. 190 which provided that all orders of a Deputy Commissioner passed under these rules were appealable to tee High Court : Held, the words " except with the previous sanction of the Provincial Government" in r. 190-A do not permit the Provincial Government when it so wishes to lift the sa)es completely out of the statutory protection afforded by the Regulation and proceed to dispose of them by executive action.

Such a construction would maker. 190-A run counter to s. 16 of the Regulation which requires these sales to be made under and in accordance \Vith the Rules.

The departure contemplated by r. 190-A was a departure within the Rules.

As the Deputy Commissioner was the only

JJ2

19.)3

April 1-1.

'1 1he State of

A_Hsr1111

Keshab P'/'nsad

S{ngh and

866 Sl'PREiVIE COUI-tT REPORTS [1953]

authority competent to settle these fisheries, subject to sanction, the act of cancellation and the act of resettlemnt were his a.cts, however inucb he ma.y Jiaye actetl nuder the direction and orders of the Government, and the High Court ha<l jurisdiction to entertain the appeal under '" 190.

, Judgment of the High Court of Assam affirmed.

Anothe,..

CTVrL APPELLA'r~1 .TmUSDICTI0"1: Civil Appeals Nos. 176 and 176-A of 1952.

Appeals by Special Leave granted by the Supreme Court on the 20th February, 1952, and 23rd May, 1952, respectively, from the J udgrnent and Order dated tho 6th December, 1951, of the High Court of , Judicature in Assam at Gauhati in its Revenue Appellate Jurisdiction (Deka J.) in Revenue Appeal No. 65 (M) of 1951.

0. K. Daphtary, Solicitor-General for India (Nuruddin Ahmed, with him) for the appellant in Civil Appeal No. 176.

B. B. Tawakley (K. 73. Asthana, with him) for the respondent in Civil Appeal ::'{o. 176.

R. K. Ohmldhury (Jcii Gopal Ghosh and R. N. Tikku, with him) for respondent No. 2. in Civil Appeal No. 176 and appellant in Civil Appeal No. 176-A .

. 1953. April 14. The Judgment of the Court was delivered by

BosE J.---This is a curious case in which the State Government of Assam having granted the first respondent a lease later cancelled its grant and regranted it to another party and now contends that it i& not bound by the Jaws and regulations which ordinarily govern such trnnsactions.

Assam is blest with fisheries which arc under the control of and belong to the State Government.

Periodically the fishing rights arc leased out to licensees and the State derives considerable revenue from this source.

So valuable are these rights that as long ago as 1886 it was considered undesirable to leave such a lucrative source of revenue to the unfettered

" s.c.R.

8UPHEME COURT REPORT8 867

discretion and control of either the Provincial Government or a single individual however eminent. Accordingly, legislation was enacted and Regulation I of 1886 (The Assam Land and Revenue Regulation, 1886) was passed into law.

A Register of Fisheries had to be kept and the Deputy Commissioner was empowered, with the previous sanction of the Chief Commissioner (later Provincial Government), to declare any collection of water to be a fishery.

Once a fishery was so dedared no person could acquire fishing rights in it except as provided by rules drawn up under section

155. These rules, with alterations made from time to time, were still operative at all dates relevant and material to this case.

Put shortlv, the effect of these rules at the dates mentioned hre was to require the fishing rights to be sold periodically by public auction in accordance with a particular procedure which was prescribed. These sales were called" Settlements." Among the conditions of sale were the following :- ( l) The officer conducting the sale does not bind himself to accept the highest bid or any bid.

(2) The purchaser shall immediately a.ft<'r the ticceptance of his bill furnish as security etc.

(3) The annual sale of fisheries in a district should be reported to the Commissioner for sanction in Form No. 100.

The Form shows that each individual settlement had to be sanctioned. But tho rules in force at the dates relevant to this cttse permitted a departure in these words:-

" Ride 190-A.

No fishery shall be settled otherwise tha11 by sale as provided in the preceding instrnctions except with the previous sanction of the Provincial floyernment."

There is also the following rule: -- " 191.

Fisheries should be settled to the best advanta(fc but, subject to this condition, the agency of middlmen tts lessees should be done away with as

1:!5.J

The Swte of

Assa1n

v Keshab Prasad

Singh and

.1nother

Bo8e ,_1,

'1.'he State of

A.11sa1n

v. [{eshab Prasad

Sinyh and

Anothe, r

Bose J.!

868 SUPREiE COURT ltEPORTS [Hl53]

far as possible. To effect this the fishery area should be broken up into blocks of such size that the actual fishers may be able to take the lease, which should be given, for preference, to the riparian land occupants or to the actual fishermen.

The endeavour of the District Officer should be to do away with the middlemen by finding out who the sub-lessees are and trying to come to terms with them."

The Rules also made provision for an appeal to the Revenue Tribunal (the High Court acted as such) in the following words :-

" 190. All orders of a Deputy Commissioner or Sub.

Divisional Officer passed under these rules are appealable to the Revenue Tribunal."

The first respondent held previous leases of the fishery with which we are concerned for a number of years.

The last of these was to expire on 31st. March, 1951.

Shortly before its expiry there was agitation by way of petitions and memorials by some of the local fishermen asking in effect that rule 191 be given effect to though the applications do not actually mention the rule. These applications, six in number, range in date from 27th October, 1950, to 13th March, 1951. They were addressed to various officials ranging from the Chief Minister and the Revenue Minister to the Secretary to Government and the Parliamentary Secretary and the Deputy Commissioner. Government therefore had all the facts fully before it.

In view of these applications Government decided to settle the fishery direct and wrote the following letter to the Deputy Commissioner on 1st February, 1951:--

" Government desirn to settle the above mentioned fisherv direct under rule 190-A. I am therefore directed to "request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement."

By that date Government had four of the six applications to which we have referred before it. In addition, it had the recommendation of the Sub-Deputy Collector

8.C.lt. 8UPREME COUR'r REPOHTS 869

dated 4th Jampry, 1951, in favour of these applications together with the Deputy Commissioner's endorsement letter dated 5th January, 1951, confirming the facts set out in the Sub-Deputy Collectors

endorsement and in the applications. The first respondent also made an application to the Parliamentary Secretary on 13th March, 1951, before any final decision was reached.

The Deputy Commissioner proceeded to auction the fishery on 24th February, 1951, and on 26th February, 1951, forwarded the bid lists to the Government with a recommendation in the first respondent's favour (his was the highest bid) in the following terms :- The present lessee is managing the fishery well and there is nothing against him."

After this, and before the final sanction, Government received still another petition from some of the local fishermen asking for a settlement in their favour.

This ivas on 13th March, 1951. Therefore, by that date Government had six petitions from the local fishermen before it and one by the first respondent as well as the various recommendations made by the District officials. W"ith all this material in its possession Government decided in favour of tho first respondent and on 17th March, 1951, wrote to the Deputy Commissioner, with a copy to tho Development Commissioner, as follows :-

"Government sanction settlement of the Chaiduar-Brahmapntra and Kharoibeel fishery under rule 190-A with the existing lessee Shri Keshab Prosad 8ingh at an annual revenue of Rs. 17,700 for a term of three years with effect from the 1st April, 1951, on the usual terms and conditions."

The Deputy Commissioner conveyed this sanction to the first respondent on 21st March, 1951, and called on him to make the necessary deposits.

The sanction is in the following terms :

"You are hereby informed that Government have allowed settlement of Chaiduar-Brahmaputra and Kharoibeel fishery with you at Rs. 17, 700 per year

'1 1he State of

Assa1n

v. /(e1>hab Prasad

Singh and

Another

BoseJ.

1953 for 3 years with effect from 1st April, 1951. You are

The State of therefore directed to deposit the 1 /4 purchase money amounting to Rs. 4,425 on 28th March, 19;'51, and the .4-ssa1n

v. balance of .Rs. 13,27 5 in cash on 31st March, 1951, failing Keshab Pmsad which the settlement granted is liable to be cancelled."

Singh and•

~4noth1'1'

BoseJ.

According to all notimm of contract current in civilised countries that would hiwe constituted a binding engagement from which one of the parties to it

could not resile at will, and had the first respondent tried to hack out we have little doubt that the State Government of Assam would, and quite justifiably, have insisted on exacting its just clues.

But the State Government did not feel itself hampered by any such old fashioned notions regarding the sanctity of engagements. On the very day on which it passed its orders in the first respondent's favour, 17th Ma, rch, 1951, it received two more.petitions. They emanated from the same sources as before and said nothing new ; but they asked for a reconsideration of the orde.rs just passed.

Had Government recalled its orders then and there, possibly no harm would have been done beyond exposing its vacillations to a limited official eircle. Hut it allowed five days to pass and then the Revenue Secretary wired the Deputy Commissioner not to recall the orders of Government, but to "stay delivery of possession" ponding what the Hevenue Secretary was pleased to call "further orders of Government 011 the revision petitions". But by then it was too late. The acceptance of the bid had already been communicated to the first respondent nnd by nll ordinary notions the contnwt was complete.

The State Govemment now says in effect, somewhat cynically, that it is not bound by the statutory rules and claims that that gives it the right to rec, ill its previous orders and regrant the fishery to some other person or body more to its liking, or rather in whom it has discovered fresh virtues hidden from its view in its earlier anxious and mature deliberations.

Acting on the telegraphic instructions received by him, the Deputy Commissioner conveyed the orders to the first respondent on 22nd March, 1951, and said:-

S.C.R.

SUPRE:JIE COURT REPORTS Sil

"The undermentioned document is forwarded to Sri jut Kes!mb Prosad Singh ......... for information and necessary action.

He is further informed that he is not to deposit the I ;4th purchase money and additional securitv ......... till the decision of the revision petition mei{- tioned in the telegram".

Three weeks elapsed and then on 13th April, 1951, the State Oovemment solernnly "reviewed" its former order and said : -

"It is reported by the Deputy Commissioner that the Gamiri Kharai-Chaiduar. Fishermen Society, Ltd., is constituted by bona .fide fishermen.

Accordingly, in view of the new circumstances brought forward by the above Society the review petition is allowed and the previous orders of Governrnent ......... dated the 17th March, 1951, is modified.

The Chaiduar Brahmaputra and Kharaibeel fishery is accordingly settled with the Gamiri Kliarai-

Chaiduar Fishermen Society Ltd ...... "

The manager of this Fishermen's Society is one Maniram Das.

His name was put forward by 205 members who olaimod to be bona .fide Assamese fishermen in the petitions of 27th October, 1950, and 21st December, 1950, also by Maniram himself on behalf of this Society on 2nd January, 1951. Their claims were endorsed by the Sub-Deputy Collector on 4th January, 1951, and by the Deputy Commissioner on 5th January, 1951. The same claims were again made by Maniram Das on behalf of the Society on 23rd January, 1951.

The "new circumstances" said to have been discovered on review was the following statement made by the Deputy Commissioner on 3rd April, 1951 :-

" Gamiri Kharai-Chaiduar Society is formed by bonri fhle fishermen".

The previous statement of the Sub-Deputy Collector made on 4th .Tanuary, 1951, was:-

"The applicants are all Kaibarta people in the district of Darrang whoHe sole business is to deal with

The State oj

A3sa1n

Keshab JJrasad

Singh and

Another

Bose J,

J9/j3

-The State of Assa1n v.

 S~PREME COURT REPORTS [1953]

fish ............ The applicants are Assamese people. In view of this and in view of the fact that these people have been recommended by respectable persons, I

Keshnb Prasad suggest that Kharai-Chaiduar fishery" (the one in question here) " may be settled with them to encourage them to compete with the other fishermen Singh and

Another

Bose J. coming from outside Assam."

The Deputy Commissioner's endorsement on this (the same Deputy Commissioner) dated 5th January, 1951, runs:-

" The petitioner (Maniram Das) is an actual fisherman as will appear from the report of the Sub- Deputy Collector ...... As observed by the Sub-Deputy Collector ..... .it is a fact that the indigenous fishermen cannot compete with the upcountry people in open auction."

To characterise the later statement of the Deputy Commissioner dated 3rd April, 1951, as disclosure of a new circumstance betrays a cynical disregard for accuracy on a par only with the Assam Government's cynical disregard for its pledged word.

The Deputy Commissioner was informed of the Government's revised decision on 13th April, 1951, and on 16th April, 1951, the fishery was settled with Maniram Das and, according to the first respondent, the settlement in his name was cancelled.

The first respondent's reaction to this was to file an appeal to the High Court under rule 190 and at the same time to apply for a mandamus under article 226 of the Constitution. The relief sought was worded as follows:- -

" The humble appellant, therefore, prays that your Lordships would be pleased to set aside the settlement of the fishery with the respondent and restore the settlement of the same with the humble

appellant."

The High Court, not unsurprisingly on these facts. granted the prayer.

It acted under rule 190 as an appellate tribunitl and the only question for us to de- /' cide is whether it lrnd jurisdiction to do Ro, The

The appellant is 1953 mandamns petition is not before us. the State of Assam.

There is an ancient presumption under section 114,

Th• State of

Assani illustration (h), of the Evidence Act, dating from at v. least 1872, that official acts have been regularly per KMhab p,.asad formed. Strange as it may seem this applies to Govern- Singh anrl ments as well as to lesser bodies and officials, and Another. ancient though it is the rule is still in force. True, the presumption will have to be applied with caution in this case but however difficult the task it is our duty to try and find a ); wful origin for as many of the acts of the appellan~ Government as we can.

Now, as we have seen, prescribed fisheries in Assam were lifted out of the realm of matters which could be disposed of at the executive discretion of either Governments or officials and were placed under statutory regulation and control by sections 16 and 155 of the Assam Land and Revenue Regulation of 1886; and we have already referred to the elaborate set of rules which were drawn up in pursuance of that Regulation. It follows that no fisherv can be "settled" except in accordance with those Ri'ilcs. .

It was not disputed that, apart from rule 190-A/ which we are now called upon to construe, the Deputy Commissioner alone could effect a "settlement" and, as we have shown, he was bound to follow a prescribed procedure; also that his "settlement" was subject to the sanction of the Commissioner.

Rule 190-A permits a departure but we do not con/ sider it n0cessary in this case to determine the exact extent of the departure permitted because the Deputy Commissioner was directed to put the fishery to auction and he did so. The only departure from the rules was that instead of sending the result of the auction to the Commissioner for Settlement it was sent to the State Government direct. ln our opinion, that was a permissible depal'ture but it was for all that a departure within the Rules.

In our judgment, the words "except with the pre vious sanctiorr of thwProvincial Govornment" are

BoseJ.

1953 important. vVo do not consider that tqis permits the Provincial Government when it so wishes to lift the Eales Th.r.State of l h d db Assam complete y out oft e statutory protection affor e y

v. the Regulation and proceed to dispose of them by

Keshnb Pmsnd executive action. Such a construction would make

s; ngh and rule 190-A run counter to section 16 of the Regulation

Another. which requires these sales to be made in accordance with rules framed under section 155, and of course a rule-making authority cannot override the statute.

Accordingly, the law requires the sale to be under and in accordance with the rules. It follows that the departure contemplated by rule 190-A is also a departure within the four corners of the rules read as a whole and is a part of the rules. It is true the departure need not conform to the "preceding instructions " contained in the earlier portion of the rules but the departure once sanctioned itself becomes part and parcel of the rules.

This is important because one of the statutory safeguards against arbitrary executiYe action i~ the appeal to the Revenue Tribuna~ which in this case is the High Court. We would be slow to hold that this safegnard can he circumvented by the simple expedient of lifting a sale out of the rules whenever Government finds that convenient.

It seems to us that if the intention was to authorise Government to lift the matter out of the rules altogether and to proceed in an executive capacity the word " sanction " would be out of place, for Govemment would hardly require its own previous san8tion to something which it is itself authorised to do.

The sanction must therefore refer to something which some other person or body is authorised to do, and in the context we feel that it can only mean sanction to the Deputy Commissioner to proceed in a manner which is not quite in accordance with the instructions contained in the rules.

The next question is, to what extent was a departure sanctioned ? This is to be found in the letter dated 1st February, 1951, addressed to the Deputy Commissioner ;- ·

s.c.k. l:\CPREME COCR'J' REPOR1'S 875

"Government desire to settle the above mentioned fishery direct under rnle 190-A.

I am therefore directed to request you to put the fishery to auction and then to submit the bid list to Government with your recommendation for direct settlement ".

The State of Assam wishes to construe this to mean that the Government of Assam intended to flout the statute and disregard the Rules and proceed by exeeutive action. The words " direct settlement " do lend themselves to that construction but that would be an act which, in our opinion, would not be warranted by the law and, as we are bound to presume until the contrary is shown that the official acts of the Assam Government were regularly performed, we must, if we can, lean against a constrnction which would put that Government more in the wrong than we can help especially as it itself purported to act under rule 190-A.

Now the only act which would be in consonance with rule 190-A and which would at the same time bo in conformity with the letter of the first Febmary would be for the Deputy Commissioner to sell by auction and then send the matter to Government direct for sanction instead of to the Commissioner.

That, in our opinion, would be a permissible departure and would make the action of Government legal and would bring the matter under rule 190-A. In the circumstances, we. are bound to constme this letter in that sense.

Now what did the Deputy Commissioner do ? 80 far as the actual auction was concerned, he followed the Rules.

He held a regular auction anrl recorded the bids in the usual way.

Up to that point ho not only complied with the letter of the 1st February but also with the regular mies. His only departure was to send his choice of a lessee to Government direct instead of to the Commissioner. This, acvording to us, was a permissible departure.

Li pon receipt of the Deputy Commissioner's recommendation Government sanctioned the settlelllent with the first respondent and the Deputy Commissioner co1nmunicitted the sanction.

The State of Assa1n v.

Keshab PrMad

Singh and Another.

Bose J.

L..

The State of

Assani

87G SUPHEME COGRi' RRPOHTS [1953]

It was argued on behalf of the State of Assam that this was not a settlement by the Deputy' Commissioner but by the State Govemment and that the Deputy Commissioner was only acting as its mouthpiece when

[(eahal! Prasad he conveved the orders of Govr; rnment to the :5.rst

Singh and Another.

BPae J.

respondei{t. In our opinion, that is a mere playing with words. The su bstauce of the thing is there.

It would be illegal for Government to setHc the fishery direct by executive action because of the statute.

It would be proper for it to sanction tlw settlement under rule 190-A in the way it did. liovernment said it was acting under rule 190-A. H said it had "sanctioned " the settlement. \Vhose act was it sanctioning?

Certainly not its own, for one cannot sanction one's own act. Sanction can only be accorded to the act of another and the only other person concerned in this matter was the Deputy Commissioner. Accordingly, in spite of the efforts of Government to appear as a bold brave despot which knows no laws but its own, we are constrained to hold that it not only clothed itself with an aura of legality but that it actually acted within the confines of the laws by which it is bound.

It follows that the settlement was the act of the Deputy Commissioner and fell within the four corners of the rules. That vested the first respondent with a good and legal title to the lease.

Next followed a similar series of acts cancelling the settlement \Vith the first respondent and resettling the fishery with the rival body. As the Deputy Commissioner was the only authority competent to settle these fisheries, subject of course to sanction, we are bound to hold that the act of cancellation and the act of resettlement were his acts however much he may have acted under the direction and orders of a third party. That at once vested the High Court with jurisdiction to entertain the appeal against his actions under rule 190.

\Vhen we say the Deputy Commissioner acted under the direction and orders of the State Government, we refer to the actual act of "settling" and not to his choice of a lessee. If this auction had proceeded in the normal

S, C.R.

,. . .

SliPREME uoun:r REPORTS 877

The .State of

Assa1n v.

way, the Deputy Commissioner would have directed the auction and would have made a selection and would then have sent his selection on to a higher authority, the Uommissioner, for sanction.

He would then have "settled" the fishery. In the present case, he carried out every one of those steps except that the higher authority here was the State Government which had substituted itself under rufo 190-A in place of the Commissioner.

It was the Deputy Commissioner who rn ade the initial choice. It was hi.s choice which was " sanctioned " and it was he who in realitv and in fact " settled" the fisherv with the first i:ospondent. The mere fact that the Stte Government in adrlition to " sanctioning" his act also told him to " settle" the fishery could not alter or divest him of his legal authority. This is not a case in which the Deputy Uommissioner having been vested with a

discretion failed to exercise it and acted as the mouthpiece of another. His discretion was to select a bidder

and he did that without any outside pressure.

Thereafter his authority was to " settle " the fishery with the selected bidder once his act was sanctioned and the mere fact 1hat he was directed by another to do that which he would have been bound to do under the law

in any event cannot diYest the settlement of its legal and binding character.

Keshab PrasC11J.

On the nwrits the High Court 1rns abundantly right.

W c accordingly uphold its order and dismiss the appeal with costs pttyable to the first respondent.

Civil Appeal No. 176-A of 1952.

J3osE , J. --For the reasons giveti in our judgment in Civil Appeal l\o. 176 of 1952 pronounced to-day, we dismiss the appeal without costs.

Appeals di:smissed.

Agent for the appella.nt in Appeal No. 176: Naimit Lal.

Agent for respondent No. 1 in Appeal Xo. 176 and respondent in Appeal No. 176-A: A. D. 1vlathur.

Aacnt for respondent No. 2 in Appeal No. 176 and

appllant in Appeal No. 176-A: K. R. Krishnaswamy.

Singh and

Another.

Bosl' .f.

THE STATE OF ASSAM

KESHAB PRASAD SINGH AND ANOTHER

MEHR CHAND MAHAJAN

VrvrAN BosE

Assam Land and Revenue Regulation

s. 16

s. 16

K. Daphtary

Nuruddin Ahmed

B. B. Tawakley

R. K. Ohmldhury

Jcii Gopal Ghosh

R. N. Tikku

BosE

State Government of

Assam

Assam Land and Revenue Regulation, 1886

section

155

State of

A.11sa1n

eshab Prasad

Sinyh

27th October, 1950

13th March, 1951

1st February, 1951:--

24th February, 1951

26th February, 1951

17th March, 1951

Keshab Prosad 8ingh

1st April, 1951

21st March, 1951

State of

Assa1n

hab Prasad

Singh

March, 19;'51

31st March, 1951

Singh

22nd March, 1951

Kes!mb Prosad Singh

13th April, 1951

Maniram Das

Maniram

4th January, 1951

5th January, 1951

23rd January, 1951

3rd April, 1951

Gamiri Kharai-Chaiduar Society

4th .Tanuary, 1951

The previous statement of the Sub-Deputy Collector made on 4th .Tanuary, 1951, was:-

"The applicants are all Kaibarta people in the district of Darrang whoHe sole business is to deal with

The State oj

A3sa1n

Keshab JJrasad

Singh and

Another

Bose J,

J9/j3
The State of Assa1n v.

 S~PREME COURT REPORTS [1953]

fish ............ The applicants are Assamese people.

Darrang

Keshab JJrasad

Singh

Keshnb Prasad

Bose

Maniram Das

Assam Government

16th April, 1951

Maniram Das

article 226

section 114

State of

Assani illustration (h)

sections 16 and 155

section 16

section 155

1st February, 1951

S 875

State of Assam

Government of Assam

Bose

State of

Assani

Singh

BPae

Keshab PrasC11J.

Naimit Lal

A. D. 1vlathur

K. R. Krishnaswamy

Singh