BAI VAJIA (DEAD) BY L. RS .

A • v.

THAKORBHAI CHELABHAI AND ORS.

February 20, 1979 B

[P. S. KAILASAM, D. A. DESAI AND A. D. KosHAL, JJ.]

Hindu Succession Act, 1956, Section 14(1) and (2), Scope of-Interpreta- ) -Oon of Statute-Legislature does not e111ploy n1eaningles~ language . . -~ c -,

As per the decree in a partition suit dated August, 18, 1909 Motabbai an.:t two sons of Mohanbhai being two predecessors in interest of the plaintiffs respondents \Vere burdened with the responsibility of paying an yearly maintenance allowance of Rs. 42/- to Btai Vajia appellant on Magsher Sud 2 of every year. The decree further provided that in the event of default in payment of 'SUCh allowance continuing for a period of a month after the due date, Bai D Vajia_ would be entitled to take possessi9n of the land allotted to them nod.er the decree viz. Survey Nos. 31, 403, 591, 611, 288 and 659/3 in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void . .By clause 8 of the decree Motabhai and, sons of Mohanbbai were also deprived E of the right of alienati., pn of the land during the lifetime of Bai Vajia. Default having been made in the payment of maintenance to her according to the terms of the decree, the appellant, took out execution and obtained possession .of the lands in question, which she continued to enjoy till October 21, 1963 when she made a sale of -Survey No. 31 in favour of one D. P. Desai. The sale was challenged by the plaintiffs in Civil Suit No. 110/66 \1lhich was decreed by the trial court. The District Court in first appeal conftrn1ed it and the lJigh F _,,.........,_Court in second appeal upheld the decree of Ba.i Vajia .

Allowing the appear of the Legal Representative by special leave, the Court.

HELD: 1. A con1bined reading of sub-sections (1) £n1d (2) of Section 14 of the Hindu Succession Act and the Explanation following sub section (1) makes it clear, that sub-section (2) does not operate to take property acquired by a Hindu female in lieu of mainten1111ce or arrears of maintenance (\vhich is property specifically included in the enumeration contained in this Explanation) out of the purview of sub-section (1). [311 D-E]

. 2. For the applicability of sub-section (1) of Section 14 t\vb conditions

must cocxis t namely.

(l) the concerned female Hindu must be possessed of property; and

SUPREME COURT REPORTS (1979] 3 s.c.it.

(2) such property must be possessed by her as a "limited owner".

If these two conditions are fulfilled, the sub section gives her the right to hOld the property as a full owner irrespective of the fact whether she acquiro4 it before or after the commencement of the Act. [309 D-F] A

The Explanation declares that the property mentioned in sub section (1) , includes both n1ovable and immovable property and then proceeds to enume~ rate the mods of acquisition of various kinds of property which the sub-sectio• would embrace. Two such modes are "in lieu of maintenance or arrears of maintenance", and "any such property held by her as Stridhana" immediately before the commencement of the Act. It, therefore, follows that the Leg:islatu~: i. in its wisdom took pains to specify all kinds of "Stridhana" in the Explanatio~ and declared that the same would form "property" within the meaning of that ' word e.s used in sub-section (i). This was done "to achie\le a social purpoSe by ..:-- bringing about change in the social and economic position of women in Hindu Society". It was ao step in the direction of practical recognition of equality of th1 sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which tho will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relatin: to the nature of ownership of 'Stridhana'. This dual purpose underlying the Explanation must be borne in mind and given effect to when the ecction ia aubjected to analysis and interpretation, and sub-section (2) is not to be given u

meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants. [309 F, 311 A-DJ

3. It is true that that it is only some kind of "limited ownership" that Would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu Female, no question of lhe applicability of sub section (1) of section 14 of the Act, would arise. [306 B-C]

4. A plain reading of sub section ( 1) of section 14 of the Act makes~ it _' clear that the concerned Hindu female must have limited O\Vncrship in propert~J'. which limited ownership would get enlarged by the operation of that sub sec~ tion. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owners", would not have been used at all and becomes redundant, which is against the well known principle of interpretation of statutes that the Legislature does not employ meaningless language. [306 H, 307 A]

...

Eran1ma v. Veerappanna and Ors., [1966] 2 SCR 626; Mangat Singh and f Ors. v. Sritnati Rattno & Anr., [1967] 3 S.C.R. 454; reiterated.

5. Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub section (I) of section 14 of the Act. In a case wbcro this condition is fulfilled the Hindu female represents the estate completely and the reversioners of her husband have only a spes succession is i.e. a mere chance of

s1n .. cession which is not a vested interest and a transfer of which is a nullity.

The widow is con1petent to protect the property from all kinds of tresspass and tc sue and be sued for all purposes in relation thereto so long as she is alive .

Ownership in the fullest sense is a sum-total of all the rights which may possibly 11ow from title to property, while limited ownership in its very nature must he a bundle of rights constituting in their totality not full ownership but somef ·,:ng less. [308 E-H]

\\1hen a wido\\' holds the property for her enjoyment as long as she lives, nobody is entitled to d.!prive her of it or to deal with the property in any manner to her detriment. The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion J of all others. Such a relationship to property falls squarely \Vithin the meaning • if the expression "limited owner" as use<l in sub section (1) of Section 14 of the Act. [308 H, 309A]

6. In the instant case : Bai Vajia became a full owner of the land in dispute under the provisions of sub-section (I) of section 14 of the Act and that

subsection (2) thereof has no application to her case, the land having been

given to her as a limited o\vner and in recognition of her preexisting right against property. So long as she lived, she was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was aho taken a\vay from Motabhai and two sons of Mohanbhai. The arrangement meant that whatever rights existed in relation to the land during the life-time of Bai Vajia were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any n1anner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life-time. After the land \Vas made over to her she became its owner for life although \Vith a limited. right and therefore only as a limited owner.

Under the decree the land vested in 1\.-Iotabhai and sons of ~Iohanbhai only so Jong: as they vverc not dispossessed of it at the instance of Bai Vajia in accordance \Vth the tern1s stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajia's life.

[311 G-H, 312 A-DJ

.:;;;.... .,,,, l". Tulasanuna and Ors. v. Sesha Reddy, [19771 3 S.C.R. 261; discussed in- cxtenso •nd. followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2434 of 1977.

Appeal by Special Leave from the Judgment and Order dated T 4/5th November, 1976 of the Gujarat High Court in S.A. No. 685/

69.

U. R. La/it (A.C.), I. N. Shroff and H. S. Parihar for the Appellant.

S. T. Desai, Vimal Dave and Miss K. Mehta for the Respondent.

The Judgment of th~ Court was delivered by,

KosHAL, J.-The facts giving rise to this appeal by special leave against a decree dated November 5, 1976 of the High Court of Gujarat

A may be better appreciated with reference to the following pedigree- • table :

NARANJI

B Dabybhai Haribhai

Ranchhodji

Bhimbhai (died childless in 1913) Mohanbhai

·~ ' .

Bhikbubhai (Plaintiff 5) Thakorbhai (Plaintiff 6)

Parvatiben=Dayalji (Plaintiff 8)

Nirrnalben (Plaintiff 9)

NARANJI (contd.)

Gulabbhai

Motabhai

Dahyabhai

(Plaintiff T}

Padmilben (Plaintiff 10)

Vallabhbhai

Nichhabhai = Surbhai Amba Bai Bai Vijia (Defendant I}

Ghelabhai Lallubhai (Plaintiff 3) Chhotubhai (Plaintiff 4) Manibhai_.._

,,_,..,

Thakobhai

(Plaintiff I)

: Ramanbhai

PlaintiIT 2)

-...t.

2. In the year 1908 Ranchhodji son of Dahyabhai instituted Civil • Suit No. 403 of 1908 against Bhimbhai son of Haribhai, Dayalji and Dahyabhai sons of Mohanbhai, Motabhai son of Gulabbhai, Bai Amba widow of Nichhabhai and Bai Vajia widow of Surbhai, for a partition I of the joint Hindu family properties belonging to the parties. The suit resulted in a decree dated August 18, 1909 which provided, inter alia, that Dayalji and Dahyabhai sons of Mohanbhai, and Motabhai son of Gulabbhai would be full owners of Survey Nos. 31 and 403 and also owners of a half share in Survey Nos. 591, 611, 288

and 659 /3. These persons were burdened by the decree with the responsibility to pay an yearly ml\intenance allowance of Rs. 42/- to Bai Vajia on Magsher Sud 2 of every year and the decree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land above-mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortage, bequeath, gift or otherwise transfer the same. The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that

• _. behalf wonld be void.

By clause 8 of the decree sons of Mohanbhai as well as Motabhai were also deprived of the right of alienation of the land dudng the lifetime of Bai Vajia.

Default having been made in the payment of maintenance to Bai Vajia according to the terms of the decree, she took out execution and obtained possession of the land above detailed. Thereafter Dayalji

and Dahyabhai sons of Mohanbhai deposited in comt the arrears of Th maintenance and filed an application with a prayer that the land of which possession had been given to Bai Vajia in execution of the decree be restored to them.

That application was dismissed on the 8th March 1912 and more than 2t years later, i.e., on 27th October 1914, Dahyabhai son of Mohanbhai instituted Civil Suit No. 576 of 1914 in the court of the Additional Sub-Judge, Valsal, for a declara- E: tion that the dismissal of his application was null and void and for recovery of possession of the land which Bai Vajia had taken in execution of the decree.

The suit was decreed by the trial court but was dismissed in first appeal on the 13th March 1918.

- Bai Vajia continued to enjoy the land till the 21st October 1963 when she made a sale of Survey No. 31 in favour of one Dhirubhat Paragji Desai.

The sale was challenged in Civil Suit No. 110 of 1966 by 10 persons being the heirs of Mohanbhai and Motabhai as shown in the pedigree table above, the defendants being Bai Vajia and the said Dhirubhai Paragji Desai. It was claimed by the plaintiffs that Bai Vajia had no right to alienate in any manner the land obtained I. by her in execution as per the terms of the decree, that sub-section ( 1) of section 14 of the Hindu Succession Act (hereinafter referred to as the Act) had no application to her case which was covered by sub-section (2) of that section and that the sale by her in favour of defendant No. 2 was null and void. Bai Vajia contested the suit and contended that the sale was good in view of the provisions of subsection (1) abovementioned which enlarged her limited ownership

into full and absolute ownership and that sub-section (2) aforesaid did not cover her case.

The suit was decreed by the trial court and Bai Vajia remained unsuccessful in the appeal which she instituted in the court of the District Judge, Bulsar. A second appeal was filed by her before the High Court of Gujarat and during the pendency thereof she expired when one Dhirubhai Dayalji Desai was substituted for her as her sole heir and legal representative. The appeal came up for hearing before a learned Single Judge of the High Court who by its judgment dated 5th November, 1976 dismissed it holding that the decree passed in Civil Suit No. 403 of 1908 did not recognise any "pre-existing" right of Bai Vajia in the property in dispute. In~ coming to this conclusion, the learned Judge followed Narai11i Devi v. ,•.

Smt. Ramo Devi and others.(') ,-

The legal representative of Bai Vajia is the sole appellant in the appeal before us, the respondents thereto being nine of the plaintiffs and six legal representatives of plaintiff No. 5 as also the purchaser from Bai Vajia who is arraigned as respondent No. 11.

2. At the outset it was pointed out by Mr. I. N. Shroff, learned counsel for the appellant, that Naraini Devi's case (supra) has since been over-ruled by the decision of this Court in V.

Tulasamma & others v. V. Sesha Reddi(') and we find that this is so.

In the case last mentioned, the facts were these.

The husband of Tulasamma died in the year 1931 in a state of jointness with his step-brother V. Sesha Reddi. A decree for maintenance was passed in favour of Tulasamma against V. Sesha Reddi on June 29, 1946. On the 30th July 1949, a compromise between the contending parties was certified by the Court executing that decree.

Under the compromise, Tulasamma was allotted certain properties in lieu of maintenance, her r!ght being limited to enjoyment there.of coupled with the specific condi- -~ t1on that she wonld not have any nght of altenatmn whatsoever. , , Tulasamma took possession of those properties and continued to enjoy them till the early sixties.

On 12th of April 1960 she leased out some of the properties to two persons and on the 26th of May 1961 made a sale of some others to another person.

V. Sesha Reddi filed a suit on July 31, 1961 for a declaration that the alienations made by Tulasamma were not binding on him and could remain valid only so long as she was alive.

The basis of the action was that Tulasamma I acquired a restricted estate under the terms of the compromise and that her interest could not be enlarged under sub-section (1) of section 14 of the Act in view of sub-section (2) of that section.

The "'

suit was decreed by the trial court whose decision however was reversed in appeal by the District Judge, with a finding that the allotment of properties to Tulasamma by the terms of the compromise had been made in recognition of a "pre-existing" right-a finding which was reversed by the High Court, who restored the decree passed by the trial court.

The matter came up to this Court in appeal by special leave and Fazal Ali, J., who wrote an exhaustive judgment thus formulated the two points falling for determination :

( 1) Whether the instrument of compromise under which the properties were given to the appellant Tulasamma before the Hirn'- Succession Act in lieu of maintenance falls wi' a section 14 (I) or is covered by section 14(2) of that Act.

( 2) Whet9er a Hindu widow has a right to property in lieu of her maintenance, and if such a right is conferred on her subsequently by way of maintenance 1t would amount to mere recognition of a pre-existing right or a conferment of new title so as to fall sguarely within section 14(2) of the Hindu Succession Act.

FaZ'al Ali, J., was of the opinion that the resolution of the dispute made it necessary that the real legal nature of the incidents of a Hindu widow's right to maintenance be considered.

He referred to various works by celebrated authors on Hindu Law and in doing so cited passages fr<:im 'Digest' of Hindu Law' by Colebrooke, 'Hindu Law' by G. S. Sastri, 'Hindu Law and Usage' by Mayne and 'Principles of Hindu Law' by Mulla and came to the conclusion that the widow's .right to maintenance, though not an indefeasible right to property, is "' undoubtedly a "pre-existing" right.

A survey of various judicial pronouncements was then undertaken by Fazal Alj, 1., and as a consideration thereof he arrived at the following propositions :-

"(l) A Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property.

If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow.

20-196 SCI/79

(2)' Though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right iu property, i.e., it is a jus ad rem, not jus in rem, and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court.

(3) The right of mai'ntenanoo is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notiee of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance.

( 4) The right to maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passing of the Act of 193 7 (') or the Act or 1946, (') and is therefore, a pre-existing right.

. -

( 5) The right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort or co-owner in the property of her husband, though her co-ownership is of a subordinate nature.

(6) Where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make arrangements for her maintenance."

Fazal Ali, J ., then embarked on a consideration of the scope and meaning of section 14 of the Act in the light of various pronounce-~ ments made by this Court as also of the decisions rendered by various High Courts in relation to the points in dispute.

During the course of the discussion he made the following pertinent observations :-

"It is true that a widow's claim for maintenance does not ripen into a full-fledged right to property, but nevertheless it is undoubtedly right which in certain cases can amount to a right to property where it is charged. It cannot be said that where a property is given to a widow in lieu of

(1) The Hindu Women's Right to Property Act.

(2) The Hindu Married Women's Right to Separate Maintenance and Residence Act, 1946.

...

maintenance, it is given to her for the first time and not in lieu of a pre-existing tight.

The claim to maintenance, as also the right to claim, property in order to maintain herself, is an inherent right conferred by the Hindn Law and, therefore, ay property given to her in lieu of maintenance is . merely in recognition of the claim or right which the widow

possessed from before. It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the documnt the widow had no vestige of a claim or right at all.

Once it is established that the instrument merely recognised -the. pre-existing right, the widow would acquire absolute interest. Secondly, the Explanation to section 14 ( 1) merely mentions the various modes by which a widow can acquire a property and the property given in lieu of maintenance is one of the modes mentioned in the Explanation. Sub-

ection (2) is merely a proviso to section 14(1) and it cannot be interpreted in such a manner as to destroy the very concept of the right conferred on a Hindu woman under section 14(1). Sub-section (2) is limited only to those cases where by virtue of a certain grant or disposition a right is conferred on the widow for the first time and the said right is restricted by certain conditions.

In other words, even if by a grant or disposition a property is conferred on a Hindu male under certain conditions, the same are binding

on the male.

The effect of sub-section (2) is merely to .equate male and female in respect of grant conferring a restricted estate."

~· Finally, Fazal Ali, J., made a reference to Naraini Devi's case >

(supra) to which he himself was a party (apart from Sarkaria, J., who delivered the judgment of the Court) and in relation thereto made the following observations : •

"This case is no doubt directly in point and this Court by holding that where under an award an interest is created in favour of a widow that she should be entitled to rent out the property for her !ife"time, it was held by this Court that this amounted .to a restricted estate under section 14(2) of the 1956 Act.

Unfortunately the various aspects, namely, the nature and extent of the Hindu women's right to maintenance, the limited scope of sub-section (2) which

300 SUPREME COURT RllPORTS [1979] 3 s.C.R.

is a proviso to sub-section ( 1) of section 14 and the effect of the Explanation, etc., to which we have adverted in this judgment, were neither brought to ur notice nor were argued before us in that case.

Secondly, the ground on which this Court distinguished the earlier decision of thi>; Court in Badri Parshad v. Smt. Kanso Devi(') was that in the aforesaid decision the Hindu widow had a share or interest in the house of her husband under the Hindu Law as it was applicable then, and, therefore, such a share amounted to a pre-existing right.

The attention of this Court however, was not drawn to the language of the Explanation to section 14(1) where a property given to a widow at a partition or in lieu of maintenance had been placed in the same category, and therefore, the reason given by this Court does not appear to be sound. For the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Nara, ini Devi's case (supra) was not correctly decided and is therefore overruled."

Su=arising the conclusions of law which Fazal Ali, J., reached after an exhaustive consideration of the texts and authorities mentioned by E him, he enumerated them thus :

"(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing right.

• I

"(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be

liberally construed in favour of females so as to advance the object of the 1956 Act and promote the socio-economic end' sought to be achieved by this long-needed legislation.

"(3) Sub-section (2) of section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of section 14(1) materially.

The proviso >hould not be construed in a manner so as to destroy the

effect of the main provision or the protection granted by section l 4 (l) or in a way so as to become totally inconsistent with the main provision.

"(4) Sub-section (2) of section 14 supplies to instruments, decrees, awards, gifts; etc., which create independent and new titles in favour of females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights.

In such cases a restricted estate in favour of a female i~ legally permissible and section 14(1) will not operate. in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the . female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be elllarged into an absolute one by force of section 14 ( 1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted ()r transferred to a female in lieu of maintenance. or a share at partition, the instrument is taken out of the ambit of sub- >ection (2) and would be governed by section 14(1) despite any restrictions placed on the powers of lhe transferee.

"(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears. of maintenance", etc., in the Explanation to section 14(1) clearly makes snb-section (2) inapplicable to these categories which have been expressly e:tcepted from the operation of snb-section (2).

" ( 6) The words "possessed by" used by the Legislature in section 14 (1) are of the widest possible amplitude and include the state of owning a property even though the

<>"Wiler is not in actual or jihysical possession of the same.

Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of section 14(1) she would get absolute interest in the property. It is equally well settled that the po.sscssion of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.

"(7) That the words "restricted estate" used in section 14(2) are wider than limited interest as indicated in section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee".

Applying these principles Fazal Ali, J., held :-

D "(i) that the properties in suit were allotted to the appellant Tulasamma on July 30, 1949 under a compromise certified by the Court;

(ii) that the appellant had taken only a life interest in the pr()perties and there was 'a clear restriction prohibiting E her from alienating the properties;

(iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into force; and

(iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties."

In this view of the matter Fazal Ali, J., allowed the appeal of Tula- ... samma's legal representatives.

Bhagwati, J., wrote a separate judgment in Tu/asamma's case and G A. C. Gupta, J., agreed with him.

He also allowed the appeal substantially for the same reasons as had weighed with Fazal Ali, J., and in doing so observed :

"Now, sub-section (2) of section 14 provides that nothing contained in sub-section (1) shall apply to any pro- H perty acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other

.• ,

.. '

BAI v AJIA v. THAKORBHAI ( Koshal' J.) 303

instrument or the decree, order or award prescribe a restricted estate in snch property.

This provision is more in the natur_e of a proviso or exception to sub-section ( 1) and it was regarded as such by this Court in Badri Pershad v.

Smt. Kanso Devi.(') It excepts certain kinds of acquisition of property by a Hindu female from the operation of subsection (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must re construed strictly so

as to impinge as little as possible on the broad sweep of the ameliorative provision. contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-

ection ( 1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section ( 1).

The language of sub-section (2) is apparently wide enough to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the ins(rument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partitio'n or in lieu of maintenance and the instrument, d•ccree, order or award giving such property prescribes limited interest for lier in the property.

But that would virtually emasculate sub-section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub-section (1), since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu !emale subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of subsection ( 1). The Explanation to sub-section ( 1) which includes within . the scope of that sub-section property -acquired by a fomale Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there

(I) [1970] 2 S.C.R 95.

would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lien of maintenance would not contain a provision prescribing restricted estate in the property ........... . . . . . . . . . . ...... . . . . . . . . . . . . . . . . . . . . . . . . . '.'

The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled.

That surely could never have been the intention of the Legislature in enacting sub-section (2) ."

Bhagwati, J ., laid down the nature of the right which .a Hindu widow has to be maintained out of the joint family estate in the following terms :-

"It is settled law that a widow is entitled. to maintenance out of her deceased husband's estate, irrespecitve whether that estate may be in the hands of his male issue or it may be in the hands of his coparceners.

The joint family estate in which her deceased husband had ll share is liable for her maintenance and she has a right to be maintained out of the joint family properties and though, as pointed out by this Court in Rani Bai v. Shti Yddul!dndan Ram(') her claim for maintenance is not a charge upon any joint family property until she has got her _maintenance determined and made a specific charge either by agreement or a decree or order of a Court, her right is "not liable to be defeated except by transfer to a bonafide purchaser for value without notice of her claim or even with notice of the claim uuless the transfer was made with the intention of defeating her right". The widow can for the purpose of her maintenance follow the joint family property "into the hands of any one who takes it as a volunteer o~ with notice of her having set up a claim for maintenance".

The courts have even gone to the length of taking the *few that where a widow is in possession of any specific property for the purpose of her maintenance, a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her, vide Rachawa & Ors. v. Shivayanappa(') cited with approval in Ranibai's case (supra). It is, therefore, clear that under

(2) I. L. R. 18 Bombay 679.

....

BAI VAJIA v. THAKORBHA! (Koshal, J.).

the Sastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into :a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is -created, this right would be enforceable against joint family property ill the hands of a volunteer or a purchaser taking

 it with notice of her claim.

The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in ihe joint family property but it is certaiO:y jus ad rem, i.e., a right against the family property.

Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. It would not be a grant for the first time without any pre-existing right in the widow.

The widow would be getting the property in virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such preexisting right and not making a grant of the property to her for the first time without any antecedent right .or title. There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, presctibe that she would have a limited interest, she would have no more than a limited interest in the propertl\ under the Hindu Law as it stood prior to the: enactment of the Act and hence a provision in the instrument prescribing that she would have only a 1:mitcd interest in the property would be, to quote the words of this Court in Nirmal Chand's case (supra), "merely rex:ording the true legal position" and that would not' attract the applicability of sub-section (2) hut would be governed by sub-section (1) of section 14.

All the three Judges were thus unanimous in accepting the appeal on the ground that Tulasamma's right to maintenance was a preexisting right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise therefOre did not fall within the ambit of sub-section (2) of section 14 of

the Act but would attract the provisions of sub-section (1) thereof H coupled with the Explanation thereto.

With respect we find ourselves irt complete agreement with the conclusions arrived at by

Bhagwnti and Fazal Ali, JJ., as also the reasons which weighed with them in coming to those conclusions.

4. Mr. S. T. Desai, learned counsel for the plaintiffs-respondents, and Mr. U. R. Lalit who very ably assisted the Conrt at its request, contended that for a Hindu female to be given the benefiL of wbsection ( 1) of section 14 of the Act she must first be an owner, albeit a limited owner, of the property in question and. that Tulasamma not being an owner at all, the Bench presided over by Bhagwati, J .,· did

not reach a correct decision in holding that the sub-section aforesaid . covered her case.

We find that only that part of this argument which ' is interpretative of sub-section ( 1) is correct, namely, that it is only ... some kind of "limited ownership" that would get enlarged into full '

ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub-section would arise.

We may here reproduce in extenso section 14 of the Act with advantage :

"14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner ..

"Explanation :

In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise,· or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before,' at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what-so-ever, and also any such property held by her as "Stridhana" immediately before the commencement of this Act.

"(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or G any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property."

A plain reading of sub-section (1) makes it clear that the con H cerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that subsection. If it was intended to enlarge any sort of a right which could

j...

BAI VAJIA v. THAKORBHAI (Kasha/, ].) 307

m no sense be described as ownership, the expression "and not as a

llmited owner" would not have been used at all and becomes redundant, which is against the well-recogn:seJ principle cf interpretation of statutes that the Legislature does not employ meaningless language.

Reference may also be made in this connection to Er am ma v.

Verrupanna & others(') where in Ramaswami, J., speaking on behalt 0. ot himself, Gajendragadkar, C.J., and Hidayatullah, J., interpreted . the sub-section thus :

"The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Ex- 11lanation to section 14 (1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section appljes only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be.

The words "as full owner thereof and not as a limited owner" as given in the last portion of sub-section (1) of section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership.

In other words, section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section.

The object of the section is to extinguish the estate called 'limited ·state' or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder .... -..

. . . ...

It does not in any way confer a title on the female Hindn where she did not in fact possess any vestige of title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser.

In other words, the provisions of section 14 (1) of the Act cannot be attracted in the case of a Hindu female who is in possession

of the property of the last male holder on the date of the commencement of the Act when she is only a trespaser without any right to property."

This interpretation of sub-section ( 1) was cited with approval in Mangal Singh and Others v. Shrimati Rattno & Another('). by Bhargava, J., who delivered the judgment of the Court and observed:

"This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question.

Even mere physical possession of the property without the right of ownership will not attract the provisions of this section.

This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled.

The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any longer."

. Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub-section ( 1) of section 14 of the Act but then. this condition was fully satisfied in the case of Tulasamma to whom the property was made over in lieu of maintenance

with full rights of enjoyment thereof minus the power of alienation. l_ These are precisely the incidents of limited ownership. In such a-~ ~._ case the Hindu female represents the estate completely and the re-· versioners of her husband have only a spes successionis, i.e., a mern ..

chance of succession, which is not a vested interest and a trans· fer of which is a nullity.

The widow is competent to proteell the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive.

Ownership in the fullest sense is a sum-total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less.

When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment.

The ----

(!) {19671 3 S.C.R. 454.

BAI VAJIA v. THAKORBHAI (Kasha/, J.) 309

property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion or all others.

Such a relationship to property in our opinion falls squarely within the meaning of the expression "limited owner" as used in sub-section ( l) of section 14 of the Act.

In this view of the matter the argument that the said sub-section did not apply to Tulasammas's case

(supra) for the reason that she did not fulfil the condition precedent of being a limited owner is repelled.

5. The next contention raised by Mr. Desai and Mr. Lalit also challenged the correctness of the decision in Tulasamma's case. They _j mgued that in any case the only right which Tulasamma had prior to ... r the compromise dated July 30, 1949 was a right to maintenance

~ slmpliciter and not at all a right to or i\1 property.

For the reasons which weighed with Bhagwati and Fazal Ali, JL in rejecting this 3rgnment we find no substance in it as we are in full agreement with these reasons and the same may not be reiterated here.

However we may emphasize one aspect of the matter which flows from a scrutiny of subsection (I) of section 14 of the Act and the explanation appended thereto.

For the applicability of sub-section (1) two conditions must co-exist, 'namely:

(1) the concerned female Hindu must be possessed of property, and

(2) such properly n1ust be possessed by her as a limited owner.

If these two conditions are fulfilled, the sub-section gives her the right to hold the property as a full owner irrespective of tl1e fact wheiher she acquired it before or after the commencement of the Act. . - - The Explanation declares that the property mentioned in sub- _.,- ' section Cl) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of _ property which the sub-section would embrace.

Such modes of acquisition are:

(a) by inheritance, ( b) by devise, { c) at a partition, ( d) in lieu of maintenance or arrears of maintenance,

(e) by gift from any person, whether a relative or not, before, at or after her marriage, (I) by her own skill or exertion,

(g) by purchase,

(h) by prescription,

(i) in any other manner what-so-ever, and

[1979] 3 s.c.R.

(j) any such property held by her as "stridhana" immediately before the commencement of this Act.

A reference to the Hindu law as it prevailed immediately before .,, the commencement of the Act would lead one to the conclusion that

the object of the Explanation was to make it clear beyond doubt that l.. all kinds of property which fell within the ambit of the term "stric ...>: dhana" would be held by the owner thereof as a full owner and not C as a limited owner.

Reference may in this connection be made to the ~' . ..,

following enumeration of "Stridhana" in paragraph 125 of Mulla's • Hindu law:

( 1) Gifts and bequests from relations.

(2) Gifts and bequests from strangers.

(3) Property obtained on partition. ( 4) Property given in lieu of maintenance. ( 5) Property acquired by inheritance. ( 6) Property acquired by mechanical arts. .

(7) Property obtained by compromise. ( 8) Property acql!ired by adverse possession.

(9) Property purchased with stridhana or with savings of income of stridhana.

(10) Property acquired from sources other than those mentioned above.

' . These heads of property are then dealt with at length by Mulla in paragraphs 126 to 135 of his treatise.

Prior to the commencement-~~ of the Act, the Hindu female did. not enjoy full ownership in respect of all kinds of "Stridhana" and her powers to deal with it further varied from school to school.

There was a sharp difference in this behalf between Mitakshara and Dayabhaga.

And then the Bombay, Benaras, Madras and Mithila schools also differed from each other on the point.

Succession to different kinds of "S'tridhana" did not follow a uniform pattern.

The rights of the Hindu female over "Stridhana" varied according to her status as a maiden, a married woman and a widow .. The source and nature of the property acquired also placed limitations on her ownership and made a difference to the mode of succession thereto.

A comparison of the contents of the Explanation with those of paragraph 125 of Mulla's Hindu Law would show that

the two are practically identical. It follows that the Legislature in jts wisdom took pains to enumerate specifically all kinds of "Stridhana" jn the Explanation and declared that the same would form "property"

within the meaning of that word as used in sub-section (1). This was done, in the words of Bhagwati, J., "to achieve a social ourpose by bringing about change in the social and economic position of women in Hindu society". It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the pro- 1Jerty held by them as owners, untrammelled by artificial limitation~ ,_} placed on their right of ownership by a society in which the will of

A J-- the dominant male prevailed to bring about a subjugation of the -opposite sex.

It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of "Stridhana". This dual 1JUrpose underlying the Explanation must be borne in mind and given

effect to when the section is subjected to analysis and interpretation, ><nd sub-section (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used

o warrants.

A combined reading of the two sub-sections and the Explanation leaves no doubt in our minds that sub-section (2) doe~ not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the 1Jurview of sub-section (1).

6. Tulasamma's case (supra) having, in our opinion been decided <:orrectly, the appeal in hand must succeed as the facts in the latter ><re on all fours with those in the former.

Mr. Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji -< and Dayabhai soru; of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only giv>n the right to possess it for her life-the ownership remaining' all along in the said three persons, but this argument does not find favour with us.

It has to be noted that so Jong as she Jived, Bai Vajia was to have full enjoyment of and complete <:ontrol over the land, barring any right to alienate it.

Such a right

was also taken away from the said three persons.

The arrangement meant that whatever rights existed in relation to the land during the life-time of Bai Vajia, were exercisable by her alone and by nobody else.

Not even the said three persons could deal with the Jana in any manner whatsover, and if they did, Bai Vajia had the right to have -< their acts declared null and void during her life-time.

After the land

-' • was made over to her she became its owner for life although with a limited right and therefore only as a limited owner.

Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein.

As soon as Bai Vajia took possession of the land, no rights of any kind what.soever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajia's. life.

7. Following Tulsamrna's case we hold that Bai Vajia became a full owner of the land in dispute under the provisions of sub-section

(1) of section 14 of the Act and that sub-section (2) thereof has n<>\_ application to her case, the land having been given to her as a limited-IC·-~ owner and in recognition of her pre-existing right against property.

In the result therefore, the appeal succeeds and is .accepted.

The judgment and the decree of the High Court are set aside and the suit giving rise to this appeal is d'smissed.

In the circumstances of the case, however, we leave the parties to bear their own costs throughout.

. S.R.

Appeal allowed.

~ ,.

I:'

BAI VAJIA (DEAD) BY L. RS

THAKORBHAI CHELABHAI AND ORS

P. S. KAILASAM

D. A. DESAI

A. D. KosHAL, JJ.

Hindu Succession Act, 1956

Section 14(1)

Bai D Vajia

The decree further provided that in the event of default in payment of 'SUCh allowance continuing for a period of a month after the due date, Bai D Vajia would be entitled to take possessi9n of the land allotted to them nod.er the decree viz.

Bai Vajia

clause 8

Motabhai

Mohanbbai

October 21, 1963

D. P. Desai

Ba.i Vajia

The District Court in first appeal conftrn1ed it and the lJigh F ,,.........,_Court in second appeal upheld the decree of Ba.i Vajia .

Section 14

Hindu Succession Act

Section 14

section 14

section 14

[1966] 2 SCR 626

[1967] 3 S.C.R. 454

section 14

Section 14

section 14

Mohanbhai

~Iohanbhai

R. La

I. N. Shroff

H. S. Parihar

S. T. Desai

Vimal Dave

K. Mehta

KosHAL

Bhikbubhai

Thakorbhai

Parvatiben=Dayalji

Nirrnalben

NARANJI

Dahyabhai

Gulabbhai

Motabhai

Dahyabhai

(Plaintiff T}

Padmilben (Plaintiff 10)

Vallabhbhai

Nichhabhai = Surbhai Amba Bai Bai Vijia (Defendant I}

Ghelabhai Lallubhai (Plaintiff 3) Chhotubhai (Plaintiff 4) Manibhai..

,,_,..,

Thakobhai

(Plaintiff I)

: Ramanbhai

PlaintiIT 2)
...t.

2.

Padmilben

Vallabhbhai

Chhotubhai

Manibhai

Ramanbhai

Ranchhodji

Bhimbhai

Dayalji

Dahyabhai

Gulabbhai

clause 8

8th March 1912

27th October 1914

Additional Sub-Judge, Valsal

13th March 1918

21st October 1963

Dhirubhat Paragji Desai

Dhirubhai Paragji Desai

section 14

Hindu Succession Act

District Judge, Bulsar

High Court of Gujarat

Dhirubhai Dayalji Desai

5th November, 1976

I. N. Shroff

Naraini Devi

Tulasamma

V. Sesha Reddi

June 29, 1946

30th July 1949

12th of April 1960

26th of May 1961

July 31, 1961

section 14

Fazal Ali

Tulasamma

section 14

section 14(2)

section 14(2)

Hindu Succession Act

FaZ'al Ali

Colebrooke

G. S. Sastri

Mayne

Mulla

Fazal Alj

section 14

Right to Property Act

section 14

section 14(1)

section 14(1)

Sarkaria

section 14(2)

section 14

section 14(1)

Nara

Devi

Yajnavalkya

Manu

Section 14(1)

section 14

section 14(1)

section 14

section 14(1)

section 14

section 14(1)

section 14(1)

section 14

section 14(1)

section 14(2)

section 14(1)

July 30, 1949

Tula-

samma

Bhagwati

asamma

G A. C. Gupta

section 14

[1970] 2 S.C.R 95

Ranibai

Koshal

Nirmal Chand

section 14

section 14

Bhagwnti

S. T. Desai

U. R. Lalit

section 14

section 14

Ramaswami

Gajendragadkar

Hidayatullah

section 14

section 14

section 14(1)

section 14

Bhargava

section 14

section 14

Tulasammas

Desai

Lalit

Bhagwati

section 14

Mitakshara

Dayabhaga

Bombay

Benaras

Madras

August 18, 1909

Dayabhai soru

Jana

Tulsamrna

section 14


• •

KISHAN CHAND

DELHI ADMiNIStRATION AND ANR.

'February 20, i 979

ts. MURTAzA FAZAL ALi AND A. b. kosiiAL, JJ_]

Prevention of Food Adulteration Rules, 1955r. 6.i-Scope oi.

Ruie 60 of the Prevention of Food Adulteration Rules, 1955 defines "emulsifYing a@-ents" and "stabilising agentS" to mean substances which, when added

tci food, are -capable of facilitating a uniform dispersi6ll of oils and fats in acqueous medi:i or vice versa nnd/or stabilising such emulsions. One of the agents mentiorted, among others, in the rule is brominated vegetable oils.

Rhles 61 (IeClafes that no emulsifying or stabilisin~ agents shall be used in ahy fMd eicepl Where. they are used as specifically permitted. The proviso to the rule state& that certain emutsifyiiig or stabilising agents including brominateU vegetable oils shall not be used in riiilk arid cream. ·

A food inspector visited an Jee-cream factory and collected a sample of chocolate ice ct_eam. In the inventory of the samPie prepared, by him it was stated that "this is prepared, of covering chocolate, vegetable ghee and icecream''. The Public Analyst. to whom the sample was sent for analysis, stated that _the salli, J?Ie was adulteated "as the butyro-refractometer reading at 40°C was fonnd 6.4 in excess and the Baudouin test was found positive of the extracted fat."

The factory, its .owner and the employee who sold the ice-cream, were prosecut1.1d under the .Prevention of Food Adulteration Act. The trial court acquitted the factory but convicted and sentenced both its owner and e -employee.

i On appeal the Additional Sessions Judge acquitted both the accused.

On furl.her appeal the High Court acquitted the factory owner but convicted the employee (appellant before this Court). The High Court pointed out that vegetable ghee could not be made to serve as an emulsifying agent because r. 61 forbids addition of brominated vegetable oil to milk or cream and without milk and/ or cream manufacture of ice-cream wao:i i.nconceivable and that the appellruit's stand had been that vegetable ghee had been used and not that any brominated vegetable oil got into the ice-cream by way of an emulsifying or -stabilising ager, t.

Allowing tho appeal,

HELD : 1 (a) The sample of ice-cream obtained from the appellant was not sho'W'.11 to have been adulterated within the meaning of the Act and the Rules. [3i6 DJ

G ..

(b) The prohibition contained in the proviso to r. 61 does not apply to ice- H ->< crarn,.ku!fi and chocolate ice .cream covered by sub-item A.11.02.08, wherein iUs clearly stated that these. three milk PJQdui; ts_ J; lllly .con)ain permitted siabi-

314 SuPREMB COURT REPORTS [1979] 3 s.c.tt.

lisers and emul•ifiers not exceeding 0.5 per eent by weight. Clearly, therefor.,, brominated veaetable oils could have formed a part of the chocolate ic.,. cream to the extent of 0.5 per cent by weight, without the article beini treated as adulterated under the rules. What the provioo to r. 61 prohibits is the use of certain emulsifying and •tabilising agenta only in milk and one of its products, namely, c_rcam and not in other milt products such a malai, dahi, cheese, ice~ cream and chocolate ice-cream. Had the intention of the rule been to prohibit the u•e ol the said agents in all milk products, the expression would have been "shall not be used in milk and milk products" and not "shall not be used in milk and cream". [318 C..El

2. It was for the prosecution to prove affirmatively that the •ample contained an inaredient which made it adulterated and any stand taken by the accused could hardly be used as evidence, unless its truth wai otherwise established. The prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if it was oil of that description, its quantity WM in excess of 0.5% by weight.

The analy•t's report did not indicate the presence in the sample of brominated vegetable oil beyond the prescribed maximum of 0.5 % by wei&ht or of unbrominated vegetable,~ oils.

[318G-HJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 245 of 1975.

Appeal by Special Leave from the Judgment and Order dated 25-3-1975 of the Delhi High Court in Criminal Appeal No. 122/72.

E Harjinder Singh for the Appellant.

' E. C. A.garwala and R. N. Sachthey for Respondent No. 1

-V. S. Desai, B. P. Maheshwari and Suresh Sethi dent No. 2.

The Judgment of the Court was delivered by

for Re_spont

KosHAL, J.-This is an appeal by special leave against a judgment of the High Court of Delhi dated 25th March, 1975 convicting the appellant of an offence under clause (i) of sub-section (1) of section 16 read with clause (i) of section 7 of the Prevention of Food Adulteration Act 1954 (herei"nafter called the Act) and sen~ncing

him to rigorous imprisonment for six months and a fine of Rs. 1000/-, the sentence in default of payment of fine being rigorous imprisonment for three months.

2. The facts giving rise to the appeal may be briefly stated.

Food Inspector V. P. Anand, (P.W.2) visited the premises of Messrs Mebrose Ice-Cream and Frozen Foqd Co. (which carries on business in .Greater Kailash No.I, a locality of New Delhi and is hereinafter , eferred to as the Company) on the 22nd May 1970 and bought for

.. ""

...

....

purposes of analysis a sample of chocolate ice-cream from the appellant A who was one of the employeeo of the Company.

An inventory of the sample was prepared by the Food Inspector and at the foot of the same the appellant made the following endon; ement:

"A sample of Chocbar Ice-Cream (Chocolate Ice-Cream) manu.factured by Mebrose Ice-Cream and Frozen Food Co., M-67, Greater Kailash, given as per above.

This Ice-Cream Chocolate is of one lot.

This is prepared of covering Chocolate, vegetable ghee and Ice-Cream."

The sample was forwarded to the Public Analyst who thus details the conclusions arrived at by him on analysis thereof, in report exhibit

PE:

"Total solids by Weight :-45 per cent.

Protein by weight : 4.4 per cent.

Chocolate :-Present.

Bntyro-refractometer reading at 40'C of the fat ex- D tracted from ice-cream :-49.4.

Baudouin test of the extracted fat : Positive.

Melting point of the extracted fat :-34'C."

In his report the Public Analyst further stated that in his opinion lhe sample was adulterated "as the Butyro-refractometer reading at 40'C was round 6.4 in excess and the Baudouin lest wao found positive of the extracted fat ............ "

A complaint was lodged by the Municipal Corporatio~ of Delhi against the appellant, the Company and its managing partner Avtar Singh in respect of an offence under section 7 read with section 16

~·- of the Act.

The trial court acquitted the Company but convicted the other two accused, sentencing each of them to rigorous imprisonment

for six months and a fine of Rs. 1000/-, the sentence in default of payment of fine being rigorous imprisonment for four months. Both the convicts appealed to the Seosions Court and were acquifted by an order dated 9th March 1972 pased by an Additional Sessions Judge.

The Municipal Corporation of Delhi then knocked at the door of the High Court which upheld the acquittal of Avtar Singh but convicted and sentenced the appellant as aforesaid by the impugned judgment,

mainly for the reasons reproduced below :

"It is established Qn the record beyond doubt that this endorsement was made by Kishan Chand and it contains an admission that vegetable ghee was used in the preparation of

316 SUPREME COURT IUlPORtS

[1979) 3 S.C.R.

the jce-cream sold by him, The judgment of the learned Addition; tl Sessions Judge reveals that the corttention of the

defence before him was that Variaspati was nsed in the preparation of the .relevant ice-cream by way of emulsifier but the plea was misconceived because vegetable ghee cannot be made to serve as an emulsifying agent.

A reference to the Prevention of Food' Adulteration Rules, i955 shows that as per Rule 60 'brominated' vegetable oil is one of the recognised emulsifying and stahilffiing agents but Rule 61 forbids addition of brominated vegetable oil to milk or cream and without milk and/ or cream manufacture of ice-cream is inconceivable.

Mo.reover, the stand of the accused from the very start has been that 'vegetable ghee' had been used

in the preparation of ice-cream and not that any 'brominated' vegetable oil got into the ice-cream by way of an emulsifying or stabilising agent.

The evidence would not countenance the contention raised before, us."

3. Having heard learned counsel for the parties at length we are of the opinion that the sample in question is not shown to have been. , adulterated within the meaning of the Act.

4. The case is admittedly governed by the Prevention of Food Adulteration Rules 1955 which have been framed by th1!

Central a Government in exercise of the pqwers conferred on it by section 23 of the Act and which are hereinafter called the Rules.

Rule 6Q defines "emulsifying agents" and "stabilising agents" to mean sub-•' stances which, when added to food, are capable of facilitating a uniform dispersion of oils and fats in aqueous media, or vice versa, and/ or stabilising such emulsions.

The rule then proceeds to specify nume- F rous agents of the type mentioned and they include brominated vegetable oils.

Rule 61 declares that no emulsifying or stabilising agents shall be used in any food except' where their use fa specifically permitted.

A proviso added to the rule states that certain emulsifying or stabilising agents, including brominated vegetable oils, shall not be used in milk and cream.

Appendix B to the Rules specifies the G standard of quality of various articles of food.

Milk and milk: products are dealt with in that Appendix under Group A.11 which is divided into various items.

Item A.11.01 which is fnrthe.r dMded into sub-items A 11.01.01 to A 11.01.11 contains definitions and standards of purity of various kinds of milk:

H- Item A.11.02 defines milk products.thus:

"MILK PRODUCTS means the products obtained froµi milk snch as cream, malai, curd, skimmed milk curd,

• --

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chhanna, skimmed milk chhanna, cheese, processed cheese, ice-cream, milk ices, condensed milk sweetened and unsweetened, cond.ensed .skimmed milk sweetened and unsweetened, milk powder, skimmed milk powder, partly skimmed milk powder, khoa, infant milk food, table butter and deshi bntter."

Then follow definitions of different kinds of milk products in sub-items A.11.02.01 to A.11.02.21. "Cream" is Jefined as follows in subitem A.11.02.02 :-

"CREAM excluding sterilised cream means the product of cow, or buffalo milk or of a combination thereof which contains not less thap. 25.0 per cent milk fat."

Chocolate ice-cream forms the subject matter of sub-item A.11.02.08 which runs thus :

"ICE-CREAM, KULFI, AND CHOCOLATE ICE- CREAM mean the frozen product obtained from cow or buffalo milk or a combination thereof or from cream, and/or other milk products, with or without the addition of cane sugar, eggs, fruits, fruit juices, preserved fruits, nuts, chooc- Iate, edible flavours and permitted food colours.

It may contain permitted stabilizers and emulsifiers not exceeding 0.5 per cent by weight.

The mixture shall be suitably heated before freezing.

The product shall contain not less than 10.0 per cent milk fat, 3.5 per cent protein and 36.0 per cent total solids except that when any of the aforesaid preparations contain fruits or nuts or both, the content of milk fat may proportionately reduced but shall not be lesi than 8.0 per cent by weight.

"Starch may be added to a maximum extent of 5.0 pe.r cent under a declaration on a label ai specified in sub-rule

(2) of Rulo 43. ·

"The standards for ice-<:ream shall also apply to softy G ice cream."

From the abo'l'e examination of the provisions of. Appendix B to the Rules, it is clearly made out that the standard of purity for each milk product has been separately laid down and that ice-c.ream, kulfi -· -..: and chocolate ice-cream are treated as a clasi by themselves, which H is differ_ent, for the purpose of purity from other milk products including cream.

The classification employed leaves no room for doubt that

SUPREME COURT REPORTS [1979] 3 s.c.R.

wben the proviso to rule 61 states that certain emulsifying and ; tabilising agents shall not be used in milk and cream, it prohibits the use of those agents only in milk and one of its products, namely, cream and not other milk products such as malai, dahi, cheese, ice-cream and chocolate ice-cream.

Had the rule-making authO'fity meant by the proviso to prohibit the use of the said agents iu all milk products,

tlie expression used would have been "shall not be used in milk and milk products" and not ''!; ball not be used in milk and crean1". The prohibition contained in the proviso thus does not apply to ice-cream, kulfi, chocolate ice-cream cove.red by sub-item A.11.02.08, wherein it is clearly stated" that these three milk products may contain permitted stabilisas and emulsifiers not exceeding 0.5 per cent by weight.

In equating the words "mill:: and cream" with milk and all'its products, the High Court was clearly in error and this is so in spite of the fact that ice-cream, kulfi and chocolate ice-cream must have milk or cream as a necessary ingredient. It follows that brominated vegetable, oil~ could have formed a part of the chocolate ice-cream sold by the appellant, to the extent 0.5 per cent by weight, without the article being treated as adulterated under the Rules.

Before the appellant could be convic'ed, therefore, it was incumbent on the prosecution to establish that the sample taken from him contained either brominated vegetable oils or other permitted stabilisers and emulsifiers exceeding 0.5 per cent by weight or that it did not conform to the prescribed standard in some other detail.

Apart from falling into the error of misreading rules 60 and 61, the High Court considered the sample taken from the appe.Uant to be adulterated by reason of the stand he had taken from the very beginning to the effect that he had used "vegetable ghee'' in the preparation of the chocolate ice-cream and because, according to the High Court, "vegetable ghee" was not brominated vegetable oil.

This is again an erroneous approach to the problem in hand. It was for the prosecution to prove affirmatively that the sample ini question contained an in!j!'edient which made it adulterated and any stand taken by the accused could hardly bo used as evidence, unless its truth was

otherwise established which is not the case.

All that was made out from the evidence before the court was that the Butyro"refractameter reading at 40° C was higher than the maxinmm prescribed for milk fat by 6.4 and that the Baudouin test was positive. These two factorn indicated that either vanaspati or milk fat to which ti! oil had been. added was one of the ingredients of the sample.

There is not an iota of evidence on the record to show whether or not such ti! oil was bro-· minated, which means that the prosecution )lad completely failed to prove that the ingredient objected to by it was a substance other than

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KISHAN CHAND v. DELID ADMINISTRATION (Koshal, !. ) 31 9

a brominated vegetaJ:ile oil or that if it was oil of that description its quantity was in excess of 0.5 per cent by weight The Butyro-refractometer reading did no doubt exceed the maximum of the prescribed standard by 6.4 and the Baudouin test was also positive but these factors did not Indicate the presence in the sample of brominated vegetable mI beyond the prescribed maximum of 0.5 per cent by weight or of unbrominated vegetable oils.

5. The sample of: chocolate ice-cream obtained by the Food Inspec- . tor from the appellant not having been shown to be adulterated, the

appeal is accepted, the judgment of the High Court in so far as it relates to the appellant is reversed, the conviction recorded against and the sentence imposed upon the appellant by the High Court are set aside and he is acquitted of the charge. The bail bood executed by him shall stand cancelled:

P.B.R.

Appeal allowed.

KISHAN CHAND

DELHI ADMiNIStRATION AND ANR

February 20, i 979

ts. MURTAzA FAZAL ALi

Prevention of Food Adulteration Act

E Harjinder Singh

E. C. A.garwala

R. N. Sachthey

V. S. Desai

1
V. S. Desai, B. P. Maheshwari and Suresh Sethi dent No.

B. P. Maheshwari

Suresh Sethi

KosHAL

High Court of Delhi

section 16

section 7

V. P. Anand

Mebrose Ice-Cream and Frozen Foqd Co.

New Delhi

section 7

section 16

9th March 1972

Avtar Singh

Kishan Chand

section 23

Appendix B to the Rules

Appendix B to the Rules

SUPREME COURT REPORTS [1979] 3 s.c.


GAYARAM PATEL & ORS.

KAILASH CHAND P ANIGRAHI

f ef?ruary 20, 1979

[S. MURTAZA FAZAL ALI AND A. D. KOSHAL, JJ.J

Orissa Estates Abolition Act, 1951-S.1-"lntermediary" who is -Gaonda thik<1dari' whether intermedia,:Y.

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The ancestors of a former Zamindar dedicated their maufi interest in a 'Yillage in favour of a deity. Acting on behalf of the deity the ex-zamindar created a lease of thikadari rights in the village in favour of the appellant for ten years. The lease deed termed the appellant .. "legal guardian of gaontia thikadari patta". While the lease was in force the Orissa Estates Abolition A':~ 1951 which •ought to abolish all intermediaries in land and vest their intell'.S! in the State came intO force. The Act however protected certain interme.tiarie& thereby carving out an exception to the scheme of the Act.

Meanwhile the Managing Trustee of the Board of Trustee• appointed under the Orissa Hindu Religious Endowments Act, 1951 to look after the affairs of the deity filed a petition under s. 7 of the Abolition Act claiming that the deity was in Khas possession of certain lands including the land lease to the appellant and prayed that the same be settled on the Board of Trustees as an occupan::y tenant. The question was eventually settled in favour of the Truateet and agair1st the appellant.

fo the Managing Trustee's application under s. 145 Cr. P.C. aasertina that the appellant was disturbing peaceful possession of the deity over the land, the Magistrate held that it was the appellant who was in poaseaaion of the land and directed that the land should be restored to him.

The High Court in revision set aside the order of the Maai1trate.

In appeal• to this Court the appellant contended that it was he and not the deity, who was the thikadar and therefore an intermediary within the meaning of the definition of that term in the Abolition Act and WM in Khaa possessi1)n ef the land in dispute and so the land should be restored to him.

Allowing the appeals,

HELD : 1. It was the appellant who had the Khas possssion of the land,. and therefore, the land must be deemed to have been vested in him, and not in the deity, as an occupancy tenant under the provisions of 11. 7 of the Abolition Act. [328 F]

2. Apart from the description of the appellant as gaontia thikadari patta. condition 8 contains a. sure indication of the nature of the tenancy agreement.

It states "that the cultivable lands cannot be utilised for any other purpose nor can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants." [328 B-C]

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GAYARAM PATEL v. j(AILAS\I CHANp (mbal, J.) 321

3. The reference to tenants in !his condition points to the land bejng under the cuthvatiOn' of persons Other than the 3.ppellant ai the mo'ment the lease was granted. This position was incompatible with the grarit of~ an ordinary lease to

him. The tenure. granted in his favour was on the other band one conferring on him a right to collect the rents from the tenants of the deity and in lieu thereof pay a fixed sum to it. He was, therefore, correctly described as gacmtia or thikadar, both of which expressions describe an intermediary as distinguiihed from a raiyat or an acfoal tiller of the soil. [328 D-EJ

I}, a CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 286 a' ' of 1973. ) Appeal by Special Leave from the Judgment and Order dated

~. ,_ 16-5-1973 of the Orissa High Court in Crl. Revision No. 645 of 1972.

AND CIVIL APPEAL No. 2036 of 1973

Appeal by Special Leave from the Judgment and Order dated 6-3-1973 of the Orissa High Court in O.J.C. No. 491/72.

J. L. Jain and Mrs. S. Gopalakrishnan for the Appellants.

G. Dass, Mrs. S. Bhandare and A. N. Karkhanis for the Respondent.

The Judgment of the Court was delivered by

KosHAL, J. By this judgment we shall dispose of Civil Appeal No. 2036 of 1973 and Criminal Appeal No. 286 of 1973, both of which have arisen from a dispute over a single piece of land and the facts leading to which may be briefly stated.

Long before the year 1949, the ancestors of Shri Lal Anup Singh Dea, ex-zamindar of 'i<hariar dedicated their maufi interest in village Konabira in favour of Sri Samaleswari Devi (hereinafter referred to as the deity). On the 10th May 1949 Shri Lal Annp Singh Dea aforesaid, acting on behalf of the deity, created a lease of thikadari rights in the vilJage for a

eriod of 10 years beginning with the 1st of June 1950 and ending on the 31st May 1960 in favour of Gayaram Patel, who figures as the !\Ppellant in each of the appeals and is hereinafter called Patel. The geed of lease appears at pages 5 and 6 of the paper book in Civil Appeal No. 2036 of 1973 and describes Patel thus :

"Gayaram Patel son of Bisram Patel, the legal gnardian of gaonila thikadari patta"

The terms on which the lease was granted to Patel arc reproduced below:-

(i) That the yearly rent payable shall be Rs. 109/- to be paid before January of every year.

(ii) That in case of non-payment the lease is liable to be cancelled.

(iii) That all the repairs, upkeep and development works should be executed and for such works no compen- 5ation can be claimed. All the repairs, maintenance of tanks, garden, buildings, etc., shall be carried ont 11t your responsibility.

(iv) That no injustice should be done to the community in maintaining the abovementioned works.

(v) That no transfer is permissible in respect of the property.

(vi) That the property is to be maintained for the exclusive welfare of the community with the help, directions, orders and co-operation of the Estate Officer.

(vii) That the rules and regulations for forest lands are to be obeyed.

(viii) That the cnltivable lands cannot be utilised for any other purpose, nor can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. If any land is abandoned and (?) takes a new land for cultivation he will be liable nnder the law and be subjected to the payment of the usual rent.

The lease was acted upon and while it was in force, the Orissa Estates Abolition Act, 1951 (hereinafter called the Abolition Act) was promulgated. The object of that Act was to abolish all intermediaries and rent-receivers, to vest their interest in the State, and to establish a direct relationship between the State and the tillers of the soil. Section 3A of the Abolition Act authorised the State Government to declare by notification that such interests have passed to and become vested in the State free from all encumbrances. A notification of that type was issued by the State Government and became effective from the 1st of June 1959.

In the meantime a Board of Trustees had been appointed under the Orissa Hindu Religious Endowments Act, 1951 (for short Endowments Act) with Shri Kailash Cha11dra Panigrahi as the Managing Trustee to look after the affairs of _the deity on whose behalf an application under section 7 read with section 8-A ( 1) of the Abolition Act was made by the Managing Trustee after the said

- 1 • "

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notification had come into force.

It was claimed in the application that the deity was in "Khas possession" of certain lands in village Konabira and prayed that the same be settled on it as an occupancy tenant.

The. application was resisted by Patel who claimed that it was lie and not the deity who enjoyed the "Khas possession" of the said land. The application was decided by the Tehsildar Khariar, Tehsil Nawapara, acting as Collector under the Abolition Act.

He . held that Patel was in "Khas possession" of o'nly one plot of land which was designared by No. 5 and had an area of 20.14 acres but j that such possession was held by him on behalf of the deity and not .. . on his own account. In this view of the matter he passed the order

, dated 13th June 1962, the operative part of which runs thus :

"Sir lands in village Konabira bearing plot No. 5 with an area of 20.14 acres are settled on occupancy rights with Gayaram Patel s/o Bisram Patel of Konabira, P. S. Kamna Distt. Kalahandi for and on behalf of Samaleswari Devi of Kemna, the Maufidar, u/s 7(1) (b) of the Orissa Estates Abolition Act, 1951. A fair and equitable annual rent of Rs. 6.75 np. is determined from the date of vesting release rent from 1959-60 onwards."

On the 21st of October 1963, the Managing Trustee -0f the deity made an application to the Assistant Commissioner of Endowments under section 68 of the Endowments Act complaining that he had been resisted by Patel in obtaining possession of the land of the deity and praying for recovery of possession thereof from Patel. In his order dated the 12th of January 1970, the Assistant Commissioner of Endowments allowed the application holding that it was the deity and not Patel who had been declared to be the occupancy tenant in the order dated 13th June 1962 abovementioned. Patel went up in revision to the Conunissioner of Endowments but without success and thereafter knocked at the door of the Orissa High Court with a petition under Articles 226 and 227 of the Constitution of India seeking to have the orders of the Assistant Commissioner of Endowments and the Commissioner of Endowments set aside. The High Court however took the same view of the matter as was expressed by authority appointed under the Endowments Act and negatived the contentions raised on behalf of Patel, in its order dated 6th March 1973. It is that order which is challenged before us in Civil Appeal No. 2036 of 1973 instituted by special leave.

In the meantime litigation had started between the deity and Patel on the criminal side also. Claiming that the de, ity had recovered

SUPREME COUR1' REPORTS [1979] 3 s.c.R.

P<Jl>Session of plot No. 5 abovementioned (which had by then come !Cl 1:le designated by No. 15 and to have an area of 22.58 acres) on t!ie 9th of Decell!ber 1970 through a warrant of possession dated 14th Febrµary 1970 issued by the Assistant Co=issioner of Endowments, the M anagjng Trustee filed an application dated 28th October 1 ~71 under section 145 of the Code of Criminal frocedure before. a l\.fagistrate of the First Class at Nawapara against Patel, who was alleged to be disturbing the peaceful possession of the deity over the h,)nd ill di, spute. A Preliminary order attaching the property was passed by the Magistrate on the same day, i.e., 28th October 1971.

That order was however cancelled and the proceedings were dropped on the 15th November 1971 in pursuance of a report dated 6th November 1971 made by the officer incharge of the Police Siation, Kemna (within the territorial limits of which lay the land in dispute) to the effect that there was no apprehension of a breach of peace by the parties. Nevertheless, on the 20th November 1971, another report was received by the Magistrate from the same officer revealing "an emergency" whereupon the Magistrate made a direction that the preliminary order dated 28th October 1971 re given effect to and that the land be attached along with the crops standing thereon. Ultimately, the proceedings were finalised through an order dated 21st September 1972 passed by the Magistrate who held that it was Patel who was in possession of the land in dispute

oll' the 20tJ1 November 1971, and directing that the land be restored to him.

Aggrieved by the order of the Magistrate the Managing Trurtee or the deity went up in revision to the H'gh Court, a learned Single Judge of wl1ich set aside the same and directed delivery of possession of the land to the deity on the basis of the findings given below :

(1) The proceedings had. terminated on the 15til

November 1971 and the Magistrate has no jurisdiction to revive them five days later and to give effect

t0 the order of attachment which already stood vacated.

(2) There had been a civil suit and a writ application in

rtspect of the land which has terminated in favour of the deity.

(3) The matter had been taken up by the Endowments

Department which had delivered all properties to the deity before the 29th April 1970.

It is this order of the High Court which is impugned in Criminal Appeal No. 286 , of 1973 by special leave of this Court.

• ..

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_,.

GAYARAM PATEL v. KJllLASH CHANt:J (Kvshal, J.) 325

2. In order to appreciate. the rival contentions of learned counsel for the parties it is necessary to make a refetehee to the relevant pruvisions of the Abolition Act and to determine the party in whom the occupancy temlllcy vests under section 7 there9f, As already pointed -Oui the object of the .Aboiition Act was to 90 away with all

interfueiliries and rept:reeeivers aJ\d to estblish a djrect relationship between the .State and thoo actual tillers of the soil. The preamble of the Act states :

"Whereas in pursuance of the Directive Pdnciples of State Policy laid dowh by the Constitution of India it is incumbent on the State to secure economic justice for all and to . that end to secure the ownership and control of all material resources of the community so that they may best subserve the common good, and to prevent the concentration of wealth and means of production to the common detriment;

"AND WHEREAS in order to enable the state to discharge the above obligation it is expedient to provide for the abolition of all the rights, title and interest in land of Intermediaries by whatever name known, including the mortgagees and lessees such interest, between the raiyat and the

State of Orissa for vesting in the said State of the said rights, title and interest and to make provision for other matters connected with; .............. "

Section 2 contains definitions. Clauses (f), (g), (h), (hh) and (j) thereof are relevant to the dispute and are extracted below :

(f) "date of vesting" means in relation to an estate vested in the State the date of publication in the Gazette of the notification under sub-section (1) of section 3 or sub-section (1) of section 3-A in respect of such estate and in the case of surrender by an intermediary under section 4 the date of the

execution of the agreement;

(g) 'estate' includes a part of an estate and means any land held by or vested in an Intermediary and included under one entry in any revenue roll or any of the general registers of revenue-paying lands and ievenue-free fands, prepared aild maintained under the law relating to land revenue for the time being in force or urtder any rule, order, custom or usage having the foree of law, and inc1udes tevenue-free

lands not entered in any register or revenue-roll and all classes of tenures or under-tenures and any Jagir, iham or maufi or other similar i:rant;

(h) 'Intermediary' with reference to any .estate means a proprietor, sub-proprietor, landlord, landholder, malguzar, thik:adar, gaontia, tenure-holder, undertenure-holder, and includes an inamdar, a jagirdar, Zamindar, Ilaquadar, Khorposhdar, Parganadar, Sarbarakar and Maufidar including the Ruler of an lndian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State;

(hh) 'Intermediary interest' means an estate or any rights or interest therein held or owned by or vested in an Intermediary and any reference to 'state' in this Act shall be construed as including a reference to 'intermediary interest' also;

( j) .. Khas possession" used with reference to the possession of an Intermediary of any land used for agricultural or horticultural purposes, means the possession of such in'ermcdiary by cultivating such land or carrying on horticultural operations thereon himself wHh his own stock or by his own servants or by hired labour or with hired stock;

The provisions of section 3A have already been noted.

Then comes section 7 which is all-important for the purpose of resolving the present dispute. It states :

"7. ( 1) On and from the date of vesting-

( a) all lands used for agricultural or horticultural purposes which were in Khas possession of an Intermediary on the date of such vesting,

(b) lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an Intermediary who owns either as Intermediary or in any other capacity less than thirty"three acres of land in total extent situated within the State,

( c) lands used for agricultural or horticultural purposes and in possession of a mortgagee, which immediately before the execution of the mortgage bond were in Khas possession of such intermediary,

. ,,,

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shall, notwithstanding anything contained in this Act, be deemed to be settled by the State Government with such Intermediary and with all the shareholders owning the estate and such Intermediary with all the share-holders shall be entitled to retain possession thereof and hold them as raiyats under the State Government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner :

Sub-section (1) of section SA requires Intermediaries to file their claims in the prescribed manner for settlement of fair and equitable rent in respect of land and buildings, which are deemed to be settled with them under section 6 or section 7, before the Collector within the specified period.

3. It would be seen that clauses (a), (b) and (c) o{ sub-section

(1) of section 7 protect certain Intermediaries and thus form exception> to the scheme of the Act which, generally speaking, conforms to the object detailed in the preamble. In the present case we are not concerned with clause (c). According to learned counsel for Patel his caoc falls within the ambit of clause (a). It is claimed on his behalf that he was not merely a lessee or a temporary lessee under the deity but was a thikadar aud, therefore, himself an Intermediary within the meaning of the definition of that word occurring in clause

(h) of section 2 and that he being in "Khas possession" of the land , in dispute on the elate of vesting was an Intermediary described in clause (a). On the other hand, for the deity it is argued that Patel was granted only a temporary lease in 1949, that he did not have any status better than that of a Jessee, temporary or otherwise, and that therefore his case was covered by clause (b) and not clause (a) so that it was the deity who was entitled to be regarded as the occupancy tenant on and from the date of vesting. The whole controversy thus turns rouqd the position which Patel came to hold in respect of the land in dispute under the 181lSe deed of 1949 and in order to assess that position it is necessary to refer to the lease deed dated 10th May

1949. As noted earlier that deed itself describes Patel as "gaontia thikadari patta". Learned counsel for the diety has contended that

328 supitliME COURT !U!PORTS [1979] 3 s.c.R.

this description is really not correct and that the conditions of the lease clearly make out a case of Patel being inducted into the land as an ordinary lessee who was to till the land against payment of rent.

The ccirttetition (foes not appear to us to have any force. Apart from the description of Patel as "gaoniia thikadari patia" the deed contanis a sure inditatioh of the natute of the tenure granted in condition (8) which states specilically :

'"fhat the cultivable lands cannot be utilised for any other purpose, nor can they be transrerred or sold or otherwi5e dealt with lo the hardship of the vi:lagers or the tenants. ..

The reference to tenants is of considerable significance and points to land being under the cultivation of persons other than Patel at the moment the lease was granted. This state of affairs is focoinpatible with the grant of an ordinary lease to Patel. The tenure granted in his favour was on the other hand one corJerring on him a right to collect the rents from the tenants of the deity and in lieu thereof pay a fixed sum of Rs. 109 /- per annum to it so that he wak correctly described in the lease deed as a gaontia or thikadar, bnth of

which expressions describe an Intermediary as distinguished from a raiyat or an actual tiller of the soil.

4: Once Patel is found to be an Intermediary his case must fall within clause (b) of sub-section (1) of section 7 as it was he who had the "Khas possession" of the land now in controversy, according to the findings contained in the order dated 13th January 1962 pa.Ssed by the Collector and mentioned above, which have not been F shown to us to suffer from any infirmity. And if that be so, the land must be held to have vested in him, and not in the deity, as an occupancy tenant under the provisions of that section.

5 .. In the result both the appeals sncceed and are accepted, the order of the High Court impugned in each being set aside and it being directed that the possession of the land in dispute attached by the order of the Magistrate in the proceedings nnder section 145 of the Code of Criminal Procedure be delivered to Patel as an occupancy tenaht under the State. the parties are however left to bear their own costs throughout.

N.V.K..

Appeals allowed.

11roiPF-!9li SCI/79-27-9-79.:._1000

GAYARAM PATEL & ORS

KAILASH CHAND P ANIGRAHI

S. MURTAZA FAZAL ALI

A. D. KOSHAL, JJ

Orissa Estates Abolition Act, 1951

s. 7

s. 145

J. L. Jain

S. Gopalakrishnan

G. Dass

S. Bhandare

A. N. Karkhanis

KosHAL

Lal Anup Singh Dea

Konabira

Samaleswari Devi

10th May 1949

Lal Annp Singh Dea

Gayaram Patel

Patel

Gayaram Patel

Bisram Patel

Orissa Estates Abolition Act, 1951

Section 3A

1st of June 1959

Religious Endowments Act

Kailash Cha11dra Panigrahi

In the meantime a Board of Trustees had been appointed under the Orissa Hindu Religious Endowments Act, 1951 (for short Endowments Act) with Shri Kailash Cha11dra Panigrahi as the Managing Trustee to look after the affairs of _the deity on whose behalf an application under section 7 read with section 8-A ( 1) of the Abolition Act was made by the Managing Trustee after the said
1 • "

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section 7

section 8

Nawapara

Collector under the Abolition Act

13th June 1962

P. S. Kamna Distt. Kalahandi

Kemna

s 7(1)

Orissa Estates Abolition Act, 1951

21st of October 1963

section 68

12th of January 1970

Orissa High Court

Articles 226 and 227

Constitution of India

6th March 1973

Cl 1

9th of Decell!ber 1970

28th October 1 ~71

section 145

28th October 1971

20th November 1971

21st September 1972

15til

November 1971

section 7

Constitution of India

State of Orissa

Section 2

section 3

section 3

section 4

Zamindar

Ilaquadar

Khorposhdar

Parganadar

section 3A

section 7

section 6

section 7

section 7

section 2

10th May

1949

section 7

13th January 1962

section 145

Code of Criminal Procedure