judgement:
Appeal No. 205 of 1954.
On appeal from the judgment and order dated the 978 13th April 1954 of the Bombay High Court in Appeal No. 49 of 1954 arising out of the order dated the 31st day of March 1954 of the said High Court exercising its Ordinary Original Jurisdiction in Misc.
Petition No. 55 of 1954.
K. T. Desai, P. N. Bhagwati, Rameshwar Nath and Rajinder Narain, for the appellants.
C. K. Daphtary, Solicitor General of India, (Porus A. Mehta and B. H. Dhebar, with him), for the respondent.
November 10.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal raises a question as to the powers of a Custodian of Evacuee Property to cancel a lease granted by him under section 12 of the (XXXI of 1950), hereinafter referred to as the Act.
Messrs Abdul Karim and Brothers owned, along with certain other properties which are not the subject matter of the present appeal, three mills with bungalows and chawls at Ambernath in Thana District and the Bobbin Factory at Tardeo in Bombay.
They having migrated to Pakistan, these properties were declared by a notification dated 12 9 1951 issued under section 7 of the Act as evacuee property, and under section 8(1) of the Act, they became vested in the respondent as the Custodian for the State.
The appellants are displaced persons, and on 30 8 1952 the respondent entered into an agreement with them, Exhibit A, which is, as aptly characterised by learned counsel for the appellants, of a composite character, consisting of three distinct matters.
There was, firstly, a demise under which the mills and the factory in question were leased to the appellants for a period of five years on the terms and conditions set out therein.
Secondly, there was a sale of the stock of raw materials, unsold finished goods, spare parts, cars, trucks and other movables which were in the mills and the factory, with elaborate provisions for the determination and payment of the price therefor in 979 due course.
And thirdly, there was an agreement to sell the mills and the factory to the appellants in certain events and subject to certain conditions.
There was also a clause for referring the disputes between the parties to arbitration.
In pursuance of this agreement, the appellants were put in possession of the mills and the factory on 31 8 1952.
On 12 2 1954 the respondent issued a notice to the appellants, Exhibit C, wherein be set out that the appellants had systematically committed breaches of the various terms on which the properties bad been leased to them, and called upon them to show cause why the lease should not be cancelled and why they should not be evicted.
The notice then went on to state that the respondent considered it necessary to issue certain directions for the "preservation of the demised premises and the goods and stock in trade, etc., lying in the demised premises", and the appellants were accordingly required not to remove the stock or raise any money on the security thereof, and to send daily reports to the Custodian, of the transactions with reference thereto.
Presumably, these directions were given under section 10 of the Act.
On 13 2 1954 the appellants appeared before the respondent, and contended that he had no auth ority to issue the notice in question under section 12, and that it was therefore illegal.
Apprehending that the lease might be cancelled, and that they might be evicted, the appellants filed on 16 2 1954 the application out of which the present appeal arises, for a writ of certiorari for quashing the notice, Exhibit C, and for a writ of prohibition restraining the respondent from taking any further action pursuant thereto.
In support of the petition, the appellants urged that section 12 under which the respondent purported to act authorised the cancellation of only leases granted by the evacuee and not by the Custodian himself, and that no directions could be given under section 10 as it applied only to properties of the evacuee, and that by reason of the sale, the movables in question had become the property of the appel 124 980 lants.
The petition was heard by Tendolkar, J., who stated the points for determination thus: (1) "Whether the Custodian has power under section 12 of the , to terminate a lease granted by himself, and (2) Whether the directions given by the Custodian are beyond the jurisdiction conferred upon him by section 10 of the said Act?" On the first question, he held that section 12 applied only to leases granted by the evacuee and not by the Custodian, and that therefore the notice, Exhibit C, was ultra vires the powers of the Custodian under that section.
On the second question, he held that section 10 applied only to properties of the evacuee, and that the movables in respect of which directions were given, ceased to be the property of the evacuee by reason of the sale in favour of the appellants, and that in consequence, the directions with reference to them were unauthorised.
In the result, the application was allowed.
The respondent took the matter in appeal, and that was heard by Chagla, C.J. and Dixit, J.
By their judgment dated 13 4 1954, they held that on the plain language of section 12 it would apply whenever there was a lease, and that lease was in respect of property belonging to the evacuee, that there was no warrant for imposing a further limitation on that section that that lease should also have been granted by the evacuee, and that accordingly the Custodian had power to issue the notice, Exhibit C, for cancelling the lease.
As regards movables, however, they agreed with Tendolkar, J. that for the reasons given by him the Custodian had no authority under section 10 to issue any directions with reference thereto.
The appeal was accordingly allowed in so far as it related to the lease but dismissed as regards movables.
Against this judgment, the appellants have preferred this appeal on a certificate granted by the High Court under article 133(1) (b), and the only point that arises for determination therein is as to whether the Custodian has the power under section 12 to 981 cancel a lease granted by himself and not by the evacuee.
But that question is no longer open to argument, as there has been subsequent to the decision of the court below legislation which concludes the matter.
Section 5 of the Administration of Evacuee Property (Amendment) Act, 1954 (XLII of 1954) enacts the following Explanation to section 12 of Act XXXI of 1950: "In this sub section 'lease ' includes a lease granted by the Custodian and 'agreement ' includes an agreement entered into by the Custodian".
And it provides that the Explanation "shall be inserted and shall be deemed always to have been inserted" in the section.
Mr. Desai, learned counsel for the appellants, concedes that this amendment which is retrospective in operation would govern the rights of the parties in the present appeal, and that under the section as it now stands, the Custodian has the power and had always the power to cancel leases created not merely by the evacuees but also by himself.
But he con tends that this power could be exercised only so as to override a bar imposed by any law but not the contract under which the lease is held, and this result flows according to him from the language of the non obstante clause, which is limited to anything contained in any other law for the time being in force", and does not include "or any contract between the parties".
This was a contention which was open to the appellants on the terms of the section as it stood even before the amendment, but it was not put forward at any stage prior to the bearing of this appeal and that by itself would be sufficient ground for declining to entertain it which it may be noted is now sought to be raised by a supplemental proceeding under Order 16, rule 4 of the Supreme Court Rules.
On the merits also it is without any substance.
The section expressly authorises the custodian to vary the terms of the lease, and that cannot be reconciled with the contention of the appellants that it confers no authority on him to go back upon his own contracts.
The operative portion of the section which confers power on 982 the Custodian to cancel a lease or vary the terms thereof is unqualified and absolute, and that power cannot be abridged by reference to the provision that it could be exercised "notwithstanding anything contained in any other law for the time being in force".
This provision is obviously intended to repel a possible contention that section 12 does not by implication repeal statutes conferring rights on lessees, and cannot prevail as against them and has been inserted ex abundanti cautela.
It cannot be construed as cutting down the plain meaning of the operative portion of the section.
Vide the observations in Aswini Kumar Ghosh vs Arabinda Bose(1) and the Dominion of India vs Shrinbai A. Irani(1) on the scope.
of a non obstante clause.
We must accordingly bold that the respondent was acting within his authority in 'issuing Exhibit C in so far as it concerned the lease granted in favour of the appellants.
It was next contended by Mr. Desai that even if the Custodian had the power under section 12 to cancel the lease in favour of the appellants, be bad no power under that section to cancel the agreement to sell the mills and the factory to them, which was one of the matters contained in Exhibit A, that the notice, Exhibit C, was to that extent without juris,diction, and that the respondent should accordingly be prohibited from cancelling that portion of Exhibit A in pursuance of Exhibit C.
But the notice in terms refers firstly to the lease which it is proposed to cancel, and secondly to the movables in respect of which certain directions were given.
In their petition under article 226, it was the validity of the notice.
, Exhibit C, with reference to these two matters that the appellants challenged.
Tendolkar, J. stated in his judgment and quite correctly that these were the two points that &rose for determination.
The question of the rights of the appellants in so far as they related to the purchase by them of the mills and the factory was not raised in the petition, and no contentions were put forward in support thereof at any stage of the proceedings.
It is for the first time in the argu (1) ; , 21, 24.
(2) ; , 213.
983 ment before us that those rights are sought to be agitated.
Under the circumstances, we must decline to consider them.
It will be sufficient if we observe that the rights of the appellants, if any, other than those arising out of the lease, are left open to the determination of the appropriate authorities, and that nothing in our decision should be taken as a pronouncement on those rights.
In the result, the appeal fails and is dismissed with costs.

summary:
By section
,12, sub section 1, of the (XXXI of 1950) as amended by Act XLII of 1954, notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person, whether such allotment, lease or agreement was granted or entered into before or after the commencement of this Act".
The respondent who was the Custodian of evacuee property granted a lease to the appellants and subsequently issued a notice to them, among other things, calling upon them to show cause why the lease should not be cancelled for committing breaches of the conditions on which the properties had been leased to them.
The appellants contended that the respondent had no power to cancel the lease on the ground that under section 12(1) of the Act the power of the Custodian to cancel the lease could be exercised only so as to override a bar imposed by any law but not the contract under which the lease was held and relied on the language of the non obstante clause contained in the section.
Held, that the operative portion of the section which confers power on the Custodian to cancel a lease is unqualified and absolute and could not be abridged by reference to the non obstante clause which was only inserted ex abundanti cautela with a view to repel a possible contention that the section does not by implication repeal statutes conferring rights on lessees.
Observations in Aswini Kumar Ghose vs Arabinda Bose ([1963] S.C.R. 1, 21, 24) and Dominion of India vs Shrinbai A. Irani ([1955] 1 S.C.R. 206, 213), on the scope of a non obstante clause, relied on.


judgement:
Appeal No. 182 828 of 1975.
Appeal by Special Leave from the Judgment and Order dated the 19th March, 1975 of the Bombay High Court in First Appeal No. 524 of 1966 from original decree.
R. B. Datar for the Appellant.
V. N. Ganpule and (Mrs.) V. D. Khanna for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
It will be easier, with the help of the following pedigree to understand the point involved in this appeal Khandappa Sangappa Magdum Hirabai (Plaintiff) Gurupad Biyawwa Bhagirathibai Dhundubai Shivapad (Deft. 1) (Deft. 3) (Deft.
4)1 (Deft. 5) (Deft. 2) Khandappa died on June 27, 1960 leaving him surviving his wife Hirabai who is the plaintiff, two sons Gurupad and Shivapad, who are defendants 1 and 2 respectively, and three daughters, defendants 3 to 5.
On November 6 , 1962 Hirabai filed special civil suit No. 26 of 1963 in the court of the Joint Civil Judge, Senior Division, Sangli for partition and separate possession of a 7/24th share in two houses, a land, two shops avoid movables on the basis that these properties belonged to the joint family consisting of her husband, herself and their two sons.
If a partition were to take place during Khandappa 's lifetime between himself and his two sons, the plaintiff would have got 1/4th share in the joint family properties, the other three getting 1/4th share each.
Khandappa 's 1/4th share would devolve upon his death on six sharers, the plaintiff and her five children, each having a 1/24th share therein.
Adding 1/4th and 1/24th, the plaintiff claims a 7/24th share in the joint family properties.
That, in short, is the plaintiffs case.
Defendants 2 to 5 admitted the plaintiff 's claim, the suit having H been contested by defendant 1, Gurupad, only.
He contended that the suit properties did not belong to the joint family, that they were Khandappa 's self requisitions and that, on the date of Khandappa 's 764 death in 1960 there was no joint family in existence.
He alleged that Khandappa had effected a partition of the suit properties between himself and his two sons in December 1952 and December 1954 and that, by a family arrangement dated March 31, 1955 he bad given directions for disposal of the share which was reserved by him for himself in the earlier partitions.
There was, therefore, no question of a fresh partition.
That, in short, is the case of defendant 1.
The trial court by its judgment dated July 13, 1965 rejected defendant 1 's case that the properties were Khandappa 's self acquisitions and that he had partitioned them during his lifetime.
Upon that finding the plaintiff.
became indisputably entitled to a share in the joint family properties but, following the judgment of the Bombay High Court in Shiramabai Bhimgonda vs Kalgonda(1) the learned trial judge limited that share to 1/24th, refusing to add 1/4th and 1/24th together.
As against that decree, defendant 1 filed first appeal No. 524 of 1966 in the Bombay High Court, while the plaintiff filed cross objections.
By a judgment dated March 19, 1975 a Division Bench of the High Court dismissed defendant 1 's appeal and allowed the plaintiff 's cross objections by holding that the suit properties belonged to the joint family, that there was no prior partition and that the plaintiff is entitled to a 7/24th share.
Defendant I has filed this appeal against the High Court 's judgment by special leave.
Another Division Bench of the Bombay High Court in Rangubai Lalji vs Laxman Lalji(2) had already reconsidered and dissented from earlier Division Bench judgment in Shiramabai Bhimgonda(1) In these two cases, the judgment of the Bench was delivered by the same learned Judge, Patel J.
On further consideration the learned Judge felt that Shiramabai(1) was not fully argued and was incorrectly decided and that on a true view of law, the widow 's share must be ascertained by adding the share to which she is entitled at a notional partition during her husband 's life time and the share which she would get in her husband 's interest upon his death.
In the judgment under appeal, the High Court has based itself on the judgment in Rangubai Lalji(2) endorsing indirectly the view that Shiramabai(1) was incorrectly decided.
Since the view of the High.
Court that the suit properties belonged to the joint family and that there was no prior partition is well founded and is not seriously disputed, the decision of this appeal rests on the interpretation of Explanation 1 to section 6 of the Hindu Succession Act, (30 of 1956).
That section reads thus "6.
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property (1)(1963)66Bom.
L.R.351.
(2) 765 shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act : Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such a female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation I. For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.
Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
" The Hindu Succession Act came into force on June 17, 1956, Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcenary property, the pre conditions of section 6 are satisfied and that section is squarely attracted.
By the application of the normal rule prescribed by that section, Khandappa 's interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act.
But, since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, the proviso to section 6 comes into play and the normal rule is excluded.
Khandappa 's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorshop.
Testamentary successive is out of question as the deceased had not made a testamentary disposition though under the explanation to section 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition.
There is thus no dispute that the normal rule provided for by section 6 does not apply, that the proviso to that section is attracted and that the decision of the appeal must turn on the meaning to be given to Explanation 1 of section 6.
The interpretation of that Explanation is the subject matter of acute controversy between the parties.
Before considering the implications of Explanation 1, it is necessary to remember that what section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshare coparcenary property at 766 the time of his death.
Since Explanation 1 is intended to be explanatory of the provisions contained in the section, what the Explanation provides has to be correlated to the subject matter which the section itself deals with.
In the instant case the plaintiff 's suit, based as it is on the provisions of section 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary property.
Two things become necessary to determine for the purpose of giving relief to the plaintiff.
One, her share in her husband 's share and two, her husband 's own share in the coparcenary property.
The proviso to section 6 contains the formula for fixing the share of the claimant while Explanation 1 contains a formula for deducing the share of the deceased.
The plaintiff 's share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in sections 8, 9 and 10 of the Hindu Succession Act.
The deceased Khandappa died leaving behind him two sons, three daughters and a widow.
The son, daughter and a widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions of section 8(a) read with the 1st clause of section 9, they take simultaneously and to the exclusion of other heirs.
As between them the two sons, the three daughters and the widow will take equally, each having one share in the deceased 's property under section 10 read with Rules 1 and 2 of that section.
Thus, whatever be the share of the deceased in the coparcenary property, since there are six sharers in that property each having an equal share, the plaintiff 's share therein will be 1/6th.
The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has a 1/6th interest in that share.
Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mistakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
One must, therefore, imagine a state of affairs in which a little prior to Khandappa 's death, a partition of the coparcenary property was effected between him and other members of the coparcenary.
Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son.
(see Mulla 's Hindu Law, Fourteenth Edition, page 403, para 315).
In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa 's wife, the plaintiff.
Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and, his sons Two things are thus clears : One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and 767 two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th.
So far there is no difficulty.
The question which poses a somewhat difficult problem is whether the plaintiff 's share in the coparcenary property is only 1/24th, or whether it is 1/4th plus 1/24th, that is to say, 7/24th.
The learned trial Judge, relying upon the decision in Shiramabai which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter.
The question is which of these two views is to be preferred.
We see no justification for limiting the plaintiff 's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband 's life time between him and his two sons.
We think that in overlooking that 1/4th share, one unwittingly permits one 's imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff 's husband and his sons.
Whether a partition had actually taken place between the plaintiff 's husband and his sons is beside the point for the purposes of Explanation 1.
That Explanation compels the assumption of a fiction that in fact "a partition of the 'property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.
The fiction created by Explanation 1 has to be given its due and full effect as the fiction created by section 18A(9) (b) of the Indian Income tax Act, 1922, was given by this Court in Commissioner of Income tax, Delhi vs section Teja Singh(1).
It was held in that case that the fiction that the failure to send an estimate of tax on income under section 18A(3) is to be deemed to be a failure to send a return, necessarily involves the fiction that a notice had been issued to the assessee under section 22 and that he had failed to comply with it.
In an important aspect, the case before us is stronger in the matter of working out the fiction because in Teja Singh 's case, a missing step had to be supplied which was not provided for by section 18A(9) If b), namely, the issuance of a notice under section 22 and the failure to comply with that notice.
Section 18A(9) (b) stopped at creating the fiction that when a person fails to send an estimate of tax on his income under section 18A(3) he shall be deemed to have failed to furnish a return of his income.
The section did not provide further that in the circumstances therein stated, a notice under section 22 shall be deemed to have been issued and the notice shall be deemed not to have been complied with.
These latter assumptions in regard to the issuance of the notice under section 22 and its non compliance bad to be, made for the purpose of giving due and full effect to the fiction created by section 18A(9) (b).
In our case it is not necessary, for the purposes of working out the fiction, to assume and supply a missing link which is really what was meant by Lord Asquith in his famous passage in East End Dwellings Co. Ltd. vs Finsbury Borough Council.(1) He said if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and (1) [1959] Stipp.
1 S.C.R. 394 (2) 768 incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share, of the deceased in the coparcenary property.
For, by doing that alone can one determine the extent of the claimant 's share.
Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death.
What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death.
That assumption, once made, is irrevocable.
In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it.
The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages.
To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one 's imagination to boggle.
All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased.
The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion.
It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled.
The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased bad in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
The interpretation which we are placing upon the provisions of section 6, its proviso and explanation I thereto will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively.
The Hindu Law of Inheritance (Amendment) Act, 1929 conferred heirship rights on the son 's daughter, daughter 's daughter and sister in all areas where the Mitakshara law prevailed.
Section 3 of the Hindu Women 's Rights to Property Act.
1937, speaking broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family.
The Hindu Succession provides by section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner.
By restricting the operation of the fiction created by Explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu Woman to acquire an equal status with males in matters of property.
Even assuming that two interpretations of Explanation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years.
We are happy to find that the view which we have taken above has also been taken by the Bombay High Court in Rangubai Lalji vs Laxman Lalji (supra) in which Patel, J., very fairly, pronounced his own earlier judgment to the contrary in Shiramabai Bhimgonda vs Kalgonda (supra) as incorrect.
Recently, a Full Bench of that High Court in Sushilabai Ramachandra Kulkarni vs Narayanrao Gopalrao Deshpande & Ors.,(1) the Gujarat High Court in Vidyaben vs Jagdishchandra N. Bhatt(2) and the High Court of Orissa in Ananda vs Haribandhu(3) have taken the same view.
The Full Bench of the Bombay High ,Court in Sushilabai (supra) has considered exhaustively the various decisions bearing on the point and we endorse the analysis contained in the judgment of Kantawala C. J., who has spoken for the Bench.
For these reasons we confirm the judgment of the High Court and ,dismiss the appeal with costs.
S.R. Appeal dismissed.
(1) A.I.R. 1975 (Bombay) 257.
(2) A.I.R. 1974 Guj.
(3) A.I.R. 1967 Orissa 194.

dataset_name: IN-Abs

summary:
Khandappa Sangappa Magdum died on June 27, 1960 leaving behind, his widow Hirabai, two sons Gurupad and Shivapad and three daughters.
On November, 6, 1952 Hirabai filed special civil suit No. 26/53 for partition and separate possession of a 7/24 share in two houses, a land, two shops and mov ables on the basis that these properties belonged to the joint family consisting of her husband, and their two sons.
The case of the plaintiff was that if a partition were to take place during Khandappa 's life time between himself and his two sons the plaintiff would have got a 1/4th share each on the death of Khandappa, Her further case was that Khandappa 's 1/4th share could devolve upon his death on six sharers, entitling her to 1/24th share besides.
The trial Court found that the suit properties belonged to the joint family and that there was no prior partition.
Following the judgment of the Bombay High Court in Shiramabai Bhimgonda vs Kalgonda , limited her share to only 1/24th and refused to add 1/4th and 1/24th together.
Dismissing the defendant 's appeal 524/66 and allowing the cross objections of the plaintiff, the Bombay High Court, by its judgment dated March 19, 1975 following 68 Rom.
L.R. 74 which overruled , held that the plaintiff wag entitled to 7/24th share.
Dismissing the appeal by special leave, the Court.
HELD : 1. (a) What Section 6 of the Hindu Succession Act.
1956 deals with is the devolution of the interest which a male Hindu has in a Mitakshara property at the time of his death.
The proviso to Section 6 contains a formula, for fixing the share of the claimants while Explanation I contains a formula for deducing the share of the deceased.
[765 H, 766 A B] (b) Explanation I which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be, the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
Whether a partition had actually taken place between the plaintiffs husband and his sons is beside the point for the purposes of Explanation 1.
That Explanation compels the assumption of a fiction that in fact "a partition of the property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.
The fiction created by Explanation I has to be given its due and full effect.
[766 E F, 767 C D] Commissioner of Income Tax, Delhi vs section Teja Singh, ; applied.
East End Dwellings Co. Ltd. vs Finsbury Borough Council, 132, quoted with approval 2.
(a) In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as they Very first step to ascertain the share of the deceased in the coparcenary property , by dong that alone can one determine the extent of the claimant 's share.
Explanation 1 to section 6 resorts to the simple expedient, undoubtedly factional, that.
14 315SCI/78 762 the interest of a Hindu Mitakshara coparcener "shall be deemed to be the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death.
What is therefore required to be assumed is that a partition had in fact taken place between the deemed and his coparceners immediately before his death.
That assumption, once made, is irrevocable.
In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference, to it.
The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages.
To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one 's imagination to boggle.
All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life time of the deceased.
The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion.
it has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled.
The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.
[768 B G] (b) Ibis interpretation furthers the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantatively.
Even assuming that two interpretations of Explanation 1 are reasonably possible, Courts must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years.
By restricting the operation of the fiction created by Explana tion I in the manner suggested by the appellant, Courts, shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu women to acquire an equal status with males in matters of pro perty.
[768 G, 769 A B] Rangubhai Lalji vs Laxman Lalji, 68 (Bom) L.R. 74; Sushilabai Ramachandra Kulkarni v, Narayanarao Gopalrao Deshpande and Ors., A.I.R. (1975) Bom.
257; Vidyaben vs Jagadishchandra N. Bhatt, A.I.R. 1974 Guj. 23; Ananda vs Haribandu, A.I.R. 1967 Orissa 194; approved.
In the instant case, (a) There is no justification for limiting the plaintiff 's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband 's life time between him and his two sons.
In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappa 's wife, the plaintiff.
Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself and his sons.
[766 G H, 767 B C] (b) By the application of the normal rule prescribed by Section 6 of the , Khandappa 's interest in the coparcenary property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the provisions of the Act.
But, since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, ,he proviso to section 6 comes into play and the normal rule is excluded.
Khandappa 's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorship.
Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to section 763 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary.
property is capable of being disposed of by a will or other testamentary disposition.
[765 E G] (c) The plaintiff 's share as determined by the application of the rules of intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession .
Act will be 1/6th.
The deceased Khandappa died leaving behind him two sons, three daughters and a widow.
The son, daughter.
and widow are mentioned as heirs in class I of the Schedule and therefore, by reason of the provisions of section 8(a) read with the 1st clause of section 9, they take simultaneously and to the exclusion of other heirs.
As between them the two son 's, the three daughters and the widow will take equally.
each having one share in the deceased 's property under section 10 read with Rules 1 and 2 of that section.
[766 C D]


judgement:
N: Criminal Appeal No. 332 of 1977.
Appeal by Special Leave from the Judgment and order dated 20 10 75 of the Bombay High Court in Criminal Application No. 1 379/75.
77 M. C. Bhandare, A. N. Karkhanis, Miss Malini Panduval and Mrs. section Bhandare for the Appellant.
G. L. Sanghi and A. K. Verma for Respondent No. 1.
M. N. Shroff for Respondent No. 2.
The Judgment of the Court was delivered by A Prefatory statement KRISHNA IYER, J.
In this appeal, by special leave, we are called upon to interpret a benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees, namely.
s 125.
P.C. Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, this spirit of article 15(3) of the Constitution must belight the meaning of the Section.
The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure.
So, section 125 and sister clauses must receive a compassionate expansion of sense that the words used permit.
The Brief Facts The respondent (husband) married the appellant (wife) as a second wife, way back in 1956, and a few years later had a son by her.
15 The initial warmth vanished and the jealousies of a triangular situation erupted, marring mutual affection.
The respondent divorced the appellant around July 1962.
A suit relating to a flat in which the husband had housed the wife resulted in a consent decree which also settled the marital disputes.
For instance, it recited that this respondent had transferred the suit premises, namely, a flat in Bombay, to the appellant and also the shares of the Cooperative Housing Society which built the flat concerned.
There was a reference to mehar money (Rs. 5,000/ and 'iddat ' money, Rs. 180/ ) which was also stated to have been adjusted by the compromise terms.
There was a clause in the compromise: G "The plaintiff declares that she has now no claim or right whatsoever against the defendant or against the estate and the properties of the defendant.
" And another term in the settlement was that the appellant had by virtue of the compromise become the absolute owner of the flat and various deposits in respect of the said flat made with the cooperative housing society.
78 For some time there was flickering improvement in the relations between the quondum husband and the quondum wife and they lived together.
Thereafter, again they separated, became entranged.
The appellant, finding herself in financial straits and unable to maintain herself, moved the magistrate under section 125 of the Criminal Procedure Code, 1973, for a monthly allowance for the maintenance of herself and her child.
She proceeded on the footing that she was still a wife while the respondent rejected this status and asserted that she was a divorce and therefore ineligible for maintenance.
The Magistrate who tried the petition for maintenance held that the appellant was a subsisting wife and awarded monthly maintenance of Rs. 300/ for the son and Rs. 400/ for the mother for their subsistence, taking due note of the fact that the cost of living in Bombay, where the parties lived, was high, and that the respondent had provided residential accommodation to the appellant.
This order was challenged before the sessions Judge by the aggrieved husband, who on a strange view of the law that the court, under section 125, had no jurisdication to consider whether the applicant was a wife, dismissed the petition in allowance of the appeal.
The High Court deigned to bestow little attention on the matter and summarily dismissed a revision petition.
This protracted and fluctuating litigation misfortune has leu to the appeal, by special leave, before this Court.
The Questions Mooted Shri Bhandare appearing for the appellant contended that the Courts below had surprisingly forgotten the plain provision in the Explanation (b) to section 125(1) of the Code, which reads: "wife ' includes a woman who has been divorced by.
or has obtained a divorce from, her husband and has not remarried.
On this foundation, he urged that accepting the contention of the respondent that the appellant was a divorcee? his client was still entitled to an allowance.
This is obviously beyond dispute or.
a simple reading of the sub section and it is curious how this innovative and sensitive provision with a benignant disposition towards destitute divorcees has been overlooked by all the courts below.
We hold that every divorce otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the current Code.
In the normal course, an order for maintenance must follow, the quantum having been determined by the learned Magistrate at the trial level.
79 However, Shri Sanghi, appearing for the respondent, sought sustain the order in his favour on three grounds They arc of pubic importance since the affected party in such a fact situation is the neglected divorcee.
He first argued that section 125(4) would apply in the absence of proof that the lady was not living separately by mutual consent.
His next plea was that there must be proof of neglect to maintain to attract s.125 and his third contention was that there was a settlement by consent decree in 1962 whereby the mehar money had been paid and all claims adjusted, and so no claim for maintenance could survive.
The third contention is apparently based upon contractual arrangement in the consent decree read with section 127(3) (b) which reads: C "(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce cancel such order, (i) in the case where such sum was paid before such order, from the date on which such order was made.
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; We must state, however, that there was no specific plea, based upon the latter provision, set up anywhere in the courts below or urged before us.
But if one were to locate a legal ground to raise The contention That the liability to pay maintenance had ceased on account of the payment of mehar, it is section 127(3) of the Code.
So we must deal with the dual sub heads of the third ground.
The meaning of meanings is! derived from values in a given society and its legal system.
Art.15(3) has compelling, compassionate relevance in the context of section 125 and the benefit of doubt.
If any in statutory interpretation belongs to the ill used wife and the derelict divorcee.
This social perspective granted, the resolution of all the disputes projected is easy.
Surely, Parliament, in keeping with article 15(3) and deliberate by design, made a special provision to help women in distress cast away by divorce.
Protection against moral and material abandonment manifest in article 39 is part of social and economic justice, specificated in article 38, fulfilment of which is fundamental to the governance of the country (Art.37).
From this coign of vantage we must view the printed text of the particular Code.
80 section 125 requires, as a sine qua non for its application, neglect by husband or father.
The magistrate 's order proceeds on neglect to maintain; the sessions judge has spoken nothing to the contrary; and The High Court has not spoken at all.
Moreover, the husband has not examined himself to prove that he has been giving allowances to the divorced wife.
His case, on the contrary, is that she has forfeited her claim because of divorce and the consent decree.
Obviously, he has no case of non neglect.
His plea is his right to ignore.
So the basic condition of neglect to maintain is satisfied.
In this generous jurisdiction, a broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof.
The next submission is that the absence of mutual consent to live separately must be made out if the hurdle of section 125(4) is to be over come.
We see hardly any force in this plea.
The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill.
Do divorcees have to 1) prove mutual consent to live apart? Divorce painfully implies that the husband orders her out of the conjugal home.
If law has nexus with life this argument is still born.
The last defence, based on mehar payment, merits more serious attention.
The contractual limb of the contention must easily fail.
The consent decree of 1962 resolved all disputes and settled all claims then available But here is a new statutory right created as a projection of public policy by the Code of 1973, which could not have been in the contemplation of the parties when in 1962, they entered into a contract to adjust their then mutual rights.
No settlement of claims which does not have the special statutory right of the divorcee under section 125 can operate to negate that claim.
Nor can s.127 rescue the respondent from his obligation.
Payment of mehar money, as a customary discharge, is within the cognisance of that provision.
But what was the amount of mehar ? Rs. 5000/ , interest from which could not keep the woman 's body and soul together for a day, even in that city where 40% of the population are reported to live on pavements, unless she was ready to sell her body and give up her soul ? The point must be clearly under stood that the scheme of the complex of provisions in Chapter IX has a social purpose.
Ill used wives and desparate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets.
This traumatic horror animates the amplitude of s.127.
Where the husband, by customary payment at the time of divorce, has adequately provided for the divorce, a subsequent series of recurrent does is 81 contra indicated and the husband liberated.
This is the teleological A interpretation, the sociological decoding of the text of s.127.
The keynote thought is adequacy of payment which will take reasonable care of her maintenance.
The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute.
The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom.
No construction which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution.
The only just construction of the section is that Parliament intended divorcees should not derive a double benefit.
If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under section 125 not mathematically but fairly then section 127(3) (b) subserves the goal and relieves; the obligor, not pro tanto but wholly.
The purpose of the payment 'under any customary or personal law ' must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself.
The whole scheme of section 127(3) (b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties.
There must be a rational relation between the sum so paid and its potential as provision for maintenance.
To interpret otherwise is to stultify the project.
Law is dynamic and its meaning cannot he pedantic but purposeful.
The proposition, therefore, is that no husband can claim under section 127(3)(b) absolution from this obligation under section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance.
The conclusion that we therefore reach is that the appeal should be allowed and it is hereby allowed, and the order of the trial court restored.
P.B.R. Appeal allowed.

summary:
Explanation (b) to section 125(1) of the Code of Criminal Procedure, 1973 provides that "wife" includes a woman who has been divorced by or has obtained a divorce from her husband and has not re married.
Section 127(3) (b) provides that where any order has been made under section 125 in favour of a woman who has been divorced by or has obtained a divorce from her husband, the Magistrate shall if he is satisfied that the woman has been divorced by her husband and has received, whether before or after the date of the said order, the whole of the sum which under any customary or personal law applicable to the parties, was payable on such divorce cancel such order in the circumstances stated therein.
The respondent (husband) married the appellant (wife) and had a son by her.
A few years later the respondent divorced his wife.
By a consent decree, in the suit filed by the wife, he transferred to her the flat in which she was living and agreed to pay mehar money.
The compromise stated that the "plaintiff declares that she has now no claim or right whatsoever against the defendant".
For some time thereafter they lived together but again separated.
The wife moved the magistrate under section 125 Cr.P. for grant of maintenance to her and her son.
This was granted.
On appeal the Sessions Judge held mat the Court had no jurisdiction under section 125.
The High Court dismissed the wife 's appeal.
On further appeal to this Court it was contended on behalf of the respondent that (i) section 125(4) would apply in the absence of proof that the wife was not living separately by mutual consent; (ii) to attract section 125 there must be proof of neglect to maintain the wife and (iii) no claim for maintenance in this case can survive in the face of the consent decree whereby mehar money had been paid and all claims adjusted.
Allowing the appeal the Court, G ^ HELD: Every divorcee, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the current Code.
[78H] 1.
There is no force in the argument that the absence of mutual consent to live separately must be made out if the hurdle of section 125(4) is to be overcome.
The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill.
Divorce plainfully implies that the husband orders.
the wife out of the conjugal home.
[80D] 76 2.
The husband 's plea is his right to ignore.
So the basic condition of neglect to maintain is satisfied.
In this generous jurisdiction the broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof.
[80C] 3.
(a) The consent decree resolved all disputes and settled all claims then available.
The new statutory right which could not have been in the contemplation of the parties when they entered into the consent decree in 1962 had been created by the Code of 1973.
No settlement of claim which does not have the special statutory right of the divorcee under section 125 can operate to negate that claim.
[80F] (b) No husband can claim under section 127(3)(b) absolution from his obligation under section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance.
[81F] (c) Section 127 cannot rescue the husband from his obligation.
The scheme of Chapter IX has a social purpose.
Ill used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets.
Where the husband, by customary payment at the time of divorce, has adequately provided for the divorcee.
a subsequent series of recurrent doles is contra indicated and the husband liberated.
The key note thought is adequacy of payment which will take reasonable care of the wife 's maintenance.
[80H] (d) The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom.
No construction which leads to frustration of the statutory project can secure validation if the Court is to pay true homage to the Constitution.
The only just construction of the section is that Parliament intended divorcees should not derive a double benefit If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under section 125 then section 127(3) (b) subserves the goal and relieves the obligor.
not pro tanto but wholly the purpose of the payment "under any customary or personal law" must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself There must be a rational relation between the cum so paid and its potential as provision for maintenance.
[81B C] 4.
Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of article 15(3) must belight the meaning of the section.
The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure.


judgement:
: Criminal Appeal No 133 of 1975.
Appeal from the Judgment and order dated 3 2 1978 of the Andhra Pradesh High Court in Crl.
A. No. 628/73.
R. Nagarathnam for the Appellant.
P. Parmeswara Rao and G. N. Rao for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
This appeal has been filed under Section 2(a) of the .
The appellant was acquitted by the learned Additional Sessions judge, Chittoor of an offence under Section 302, Indian Penal Code.
The acquittal was reversed by the High Court of Andhra Pradesh and the appellant was convicted under Section 302 Indian Penal Code and sentenced to suffer imprisonment for life.
365 The deceased Subhadramma was the wife of the appellant.
They were married about one and a half years before the occurrence.
About three months before the occurrence the deceased gave birth to a female child in the house of the accused at Cherlopalle.
After the ninth day the mother and child, according to customary practice, were taken by the mother of the deceased to her house at Krishna Kalva.
Cherlopalle is about 25 miles from Krishna Kalva.
The accused used to visit his wife and often used to stay in the house of the deceased 's mother.
After about one and a half months the, accused asked his mother in law and brother in law to send his wife to his place.
They replied that she had only delivered a child recently and that she would be sent to her husband 's house in the fifth month.
On 18th December, 1972, according to the case of the prosecution the accused once again requested his mother in law to send his wife to his house.
This time he also brought with him P.W. 8, an elderly gentleman from his village.
His mother in law P.W. 2 told him that she would send the girl in the fifth month as she had not yet regained her health after delivery.
The accused and P. W. 8 went away.
That evening the accused again came to the house of his mother in law.
After dinner all of them went to sleep.
The house consisted of only one room.
The accused, the deceased, her brother P.W. 1, her mother P.W. 2 and her grand mother P.W. 3 were all sleeping in the room.
In the middle of the night P.Ws. 1, 2 and 3 were awakened by the cry "Amma" raised by Subhadramma.
On waking up they saw the accused sitting by the side of the deceased with a knife in his hand.
They found the deceased bleeding profusely from the left side of her chest.
P.W. 1 put his foot on the hand in which the accused was holding the knife.
The accused dropped the knife which was then picked up by the grand mother P.W. 3.
Attracted by the cries raised by the P.Ws. 1 to 3, the neighbourers P. Ws. 4, 5, 6 and others came there.
They caught hold of the accused and tied him to a pole in front of the house by means of a rope.
Some of the villagers who had gathered there also gave a beating to the accused P.W. proceeded to the house of P.W. 9 the Village Munsif and reported the occurrence to him.
P. W. 1 affixed his thumb impression on the report exhibit P. 1 prepared by P. W. 9.
P. W. 9 then proceeded to the house of P.W. 1 where the blood stained knife M.O. 1 was handed over to him.
Thereafter, P. W. 9 prepared his own report exhibit P. 4 and sent it alongwith exhibit P. 1 and M.O. 1 to the Police Station at Renigunta.
P. W. 14, the Sub Inspector of Police registered the First Information Report at 5 A. M. on 19th December, 1972 and went ahead with the further investigation which was later taken over by the Inspector of Police P.W. 15.
When the Police officers went to the village, they 366 found the accused tied to a pole.
They arrested him and found that he had injuries on his person.
They got him examined by a Doctor.
After holding the inquest the dead body was sent for postmortem examination.
The Medical Officer, P. W. 12 who conducted the autopsy, found on the dead body a stab wound over the left axila 6 cms.
below the arm pit 1.75 cms x 0.5 cm.
nearly horizontal.
The stab injury had gone through the third intercostal space and through the upper lobe of the left lung in an upward and medial direction.
The upper lobe of the left lung had been cut through and through,, and had collapsed.
P. W. 13 the Medical officer who examined the accused found several abrasions and contusions on the person of the accused.
There was no fracture.
After completing the investigation the Police laid a chargesheet against the accused and he was duly tried.
The plea of the accused was one of denial.
In the Committing Court the accused was content with a bare denial but in the Court of Sessions he stated that he went to the house of his mother in law at about 10 p.m.
On 18th December, 1972.
P. Ws. 1 and 2 taunted him saying "we are maintaining you and your wife, yet you come at any time you like` '.
They insulted him.
There was an altercation.
P.W. 3 hit him with a stone near his left eye.
P. W. 1 beat him with a stick two or three times.
He felt giddy and was about to lose consciousness.
P. W. 1 came upon him with a knife to stab him.
The deceased intervened and interposed herself between P.W. 1 and the accused.
She received a stab injury.
Seeing his wife injured, he fell down unconscious.
He regained consciousness next morning.
The Learned Sessions Judge held that the prosecution had failed to establish any motive and that the evidence of the prosecution witnesses was 'discrepant, conflicting and improbable. ' He thought that the prosecution had made an attempt to improve its case which was originally based on circumstantial evidence to made it appear as if P.W. 3 had also seen the stabbing.
He commented on the failure of the Police to seize the mat or bedding on which the deceased was sleeping.
He referred to the evidence of me Doctor who stated that the injury found on the deceased could have been caused even if she was standing.
The learned Sessions Judge thought that when there were two divergent versions given by the prosecution and the defence and when two views were possible, the benefit of doubt should be given to the accused.
He, therefore, acquitted the accused.
The High Court reversed the finding of acquittal.
The learned Judges pointed out that there was no reason to doubt the testimony of P. Ws. 1 to 3 and that the discrepancies noticed by the learned Sessions 367 Judge were of a minor character.
The High Court observed that the learned Sessions Judge had magnified the importance to be attached to minor discrepancies.
The High Court also concluded from the medical evidence that it was more probable that the deceased was stabbed when she was lying down.
Accepting the evidence of P. Ws. 1 to 3 which was corroborated by the evidence of P. Ws. 4 and 5 who came to the scene soon afterwards, the High Court convicted the accused under Section 302 and sentenced him as aforesaid.
In this appeal the learned Counsel for the appellant argued that the accused had no motive to kill his wife and that his version was more probable than the version of the prosecution.
He submitted that the version of the accused that the occurrence took place at about 10 p.m. was substantiated by what was mentioned in exhibit P. 15 the wound certificate given by P.W. 13 the Medical officer in respect of the injuries which he found on the person of the accused.
He urged that the knife was not seized by the Police under any seizure Memo nor was the knife sent to any finger print expert.
He urged that at the reasons given by the learned Sessions Judge had not been met by the High Court.
He also contended that two views were possible on the evidence and the accused was entitled to the benefit of doubt.
We have perused the relevant evidence as well as the judgments of the Sessions Judge and the High Court.
We are unable to find any substance in the submissions made by the, learned Counsel for the appellant.
The High Court was well justified in commenting that the discrepancies on the basis of which the Trial Court rejected the evidence of P. Ws. 1, 2 and 3 were of a minor character and that they have been unduly magnified by the learned Sessions Judge.
The discrepancies were in regard to which of them woke up first, where was the lantern and which of the neighbours came first to the scene on hearing their cries.
The High Court was also right in holding that the medical evidence supported the prosecution version and not the defence version.
Merely because the Medical Officer stated that the victim could have received the injury if she was standing, it did not follow that the injury could have been received in the circumstances mentioned by the accused.
The injury was inflicted with great force and its direction was upward.
The location of the injury was 6 cms.
below the arm pit on the left side.
According to the accused the deceased received the injury when she placed herself between P. W. 1 and himself.
We do not think that an injury of the nature received by the deceased could have been caused in the manner suggested by the accused.
The injury must have been caused in the manner suggested by the prosecution that 368 is, when the deceased was lying on her right side.
It is true that the accused did not have any deep motive to kill the deceased.
It is obvious that he must have been upset by the persistent refusal of the brother and mother of the deceased to send her with him to his house.
He probably attributed the refusal to reluctance on the part of his wife to accompany him straightaway.
We may also refer here to the comment of the learned Counsel for the appellant that realizing that the motive would assume considerable importance if the case was one based on circumstantial evidence, the prosecution tried to make P. W. 3 depose as if she had witnessed occurrence.
We do not think that the comment is justified.
P.W. 3, an old woman of 69 years, stated in her evidence that she saw the accused who was sitting by the side of the deceased on the cot make a gesture as if he was stabbing the deceased and that the deceased cried out 'Amma. ' In cross examination she stated that she did not remember if she had told the Police that the accused made a gesture as if he was stabbing the deceased.
The Inspector of Police P. W. 15, however, stated that P. W. 3 did not state before him that she saw the accused making a gesture as if he was stabbing the deceased.
We do not think that we will be justified in rejecting the evidence of all the prosecution witnesses on the basis of this statement of P. W. 3.
At the worst the so called improvement made by her may be rejected but no more.
We are unable to discover any good reason to reject the evidence of P. Ws. 1 to 3 or the evidence of P. Ws. 4 and 5.
We are afraid the learned Sessions Judge allowed himself to be assailed by airy and fanciful doubts.
We are satisfied that the High Court was justified in interfering with the order of acquittal.
The learned Counsel for the appellant advanced the usual argument submitted in all cases where an order of acquittal is reversed, namely, that where two views of the evidence are possible, the accused is entitled to the benefit of the doubt arising from the two views and that where the Trial Court has taken a possible view and acquitted the accused, the High Court should not interfere with the order of acquittal merely because another view is also possible.
The principles are now well settled.
At one time it was thou ht that an order of acquittal could be set aside for "substantial and compelling reasons" only and Courts used to launch on a search to discover those "substantial and compelling reasons".
However, the 'formulae ' of "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh & Ors.
vs State of Rajasthan(1).
In Sanwat Singh 's case, this Court harked (1) A.l.
R. 369 back to the principles enunciated by the Privy Council in Sheo Swarup vs Emperor(1) and re affirmed those principles.
After Sanwat Singh vs State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup 's case.
Occasionally phrases like 'manifestly illegal ', grossly unjust ', have been used to describe the orders of acquittal which warrant interference.
But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion.
In some cases Ramabhupala Reddy & Ors.
v The State of A.P.(2), Bhim Singh Rup Singh vs State of Maharashtra(3) it has been said that to the principles laid down in Sanwat Singh 's case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court".
This, of course, is not a new principle.
It stems out of the fundamental principle, of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt.
If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt.
But, fanciful and remote possibilities must be left out of account.
To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.
If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt.
It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason"(4).
As observed by Lord Denning in Miller vs Minister of pensions(5) "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt.
(1) 61 I.A. 389.
(2) A.I.R. 1971 S.C. 460.
(3) A.l.
R. (4) Salmon J. in his charge to the jury in R. V. Fantle reported in (5) 370 The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable ' the case is proved beyond reasonable doubt, but nothing short of that will suffice".
In Khem Karan & Ors.
vs State of U.P. & Anr.(1).
, this Court observed: "Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony".
Where the Trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.
That is what the High Court has done in this case.
The appeal is dismissed.
P. B. R. Appeal dismissed.

summary:
The appellant was charged with the offence of committing the murder of his wife.
The trial court acquitted him on the ground that the prosecution had failed to establish any motive for the offence, that the evidence of the prosecution witnesses was discrepant, conflicting and improbable and that when two views were possible on the basis of two divergent versions given by the prosecution and the defence, the benefit of doubt should be given to the accused.
The High Court reversed the order of acquittal and convicted and sentenced the appellant to imprisonment for life on the view that the trial court had magnified the importance to be attached to the discrepancies which were of a minor nature In appeal to this Court it was contended on behalf of the appellant that in all cases where two views of the evidence were possible the accused was entitled to the benefit of doubt arising from the two views and that on this principle the High Court should not have interfered with the order of acquittal merely because another view was also possible.
Dismissing the appeal: ^ HELD : (1) Where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.
[370D] (2) After the decision of this Court in Sanwat Singh vs State of Rajasthan ; this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup vs Emperor (61 T.A. 389).
Occasionally phrases like "manifestly illegal", "grossly unjust have been used to describe the orders of acquittal which warrant interference.
But such expressions have been used more as flourishes of language to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion.
In two other cases it has been held that to the principles laid down in Sanwat Singh 's case may added the further principle that if two 364 reasonable conclusions could be reached on the basis of the evidence on record the appellate court should not disturb the finding of the trial court.
This principle stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt.
If two reasonably probable and evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
But fanciful and remote possibilities must be left out of account.
To entitle an accused person to the benefit of a doubt arising from the possibility of duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.
If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt.
It is, therefore essential that, any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.
A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the mind of a Judge about almost anything at any time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded upon reason.
"Proof beyond a reasonable doubt" does not mean proof beyond a shadow of doubt The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong against a man be to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible but not in the least probable," the case is proved beyond reasonable doubt but nothing short of that will suffice.
[369A G] Sanwat Singh vs State of Rajasthan, ; applied.
Ramabhupala Reddy & Ors.
vs The State of A.P., AIR 1971 SC 460, Bhim Singh Rup Singh vs State of Maharashtra, AIR 1974 SC 286, Miller vs Minister of Pensions, [1947] 2 All.
E.R. 372; Khem Karam & Ors.
vs State of U.P. & Anr., referred to.


judgement:
Civil Appeal Nos.
1617 and 1640A of 1979.
Appeals by Special Leave from the Judgment and order dated 20 1 1979 of the Madhya Pradesh High Court in Misc.
Petition No 884 of 1978.
R. P. Bhatt and Sri Narain for the Appellant (In CA 1617/79).
G. L. Sahu and Miss Maya Ra for the Appellant (In CA 1640A/79) an R. 54 in CA 1617/79.
Shiv Shankar Rao, H. K. Puri, V. K. Bahl and Miss Madhu Moolchandani For RR 7 10, 13, 14, 16, 18 25, 27 29, 33 36, 39 42, 45, 49 and 50 in CA 1617 and for RR 7, 10, 13 14, 16, 18 25, 27 29, 33 36, 39 42, 45, 49 & 50 in C.A. 1640A/79.
section K. Gambhir for RR.
5 6 in CA 1617/79.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
For the purpose of holding election to the .
Municipal Corporation of Raipur in the month of December, 1978 under the provisions of the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956) (hereinafter referred to as 'the Act '), the Collector of Raipur published the preliminary electoral roll on September 30, 1978 under Rule 4(1) of the Madhya Pradesh Munici 493 pal Corporation (Preparation, Revision and Publication of Electoral Rolls and Selection of Councillors) Rules, 1963 (hereinafter referred to as 'the Rules ') promulgated under the Act by the Madhya Pradesh State Government and issued a public notice under Rule 4(1) of the Rules calling upon persons whose names had not been included in the electoral roll and who claimed to be included in i. and persons who had any objection to the inclusion of the name of any person in the said electoral roll to submit their claims and/or objections within 20 days from the date of the publication of the said notice before Shri K. P. Pande, Deputy Collector, Raipur who had been authorised to pass orders on such claims or objections.
It was also notified that claims or objections which had not been preferred as required under the Rules within the prescribed period would be rejected.
The final publication of the electoral roll under Rule 8 of the Rules was done on November 16, 1978.
Thereafter the calendar of events was published on November 25, 1978 notifying that the poll, if necessary would take place on December 31, 1978 in all the 44 constituencies: Six petitioners including the appellants herein presented a petition under Article 226 of the Constitution before the High Court of Madhya Pradesh at Jabalpur on December 28, 1978 requesting the Court to make an order quashing the electoral roll and the calendar of events issued for the purpose of the said election and directing the respondents to refrain from conducting the poll on December 31, 1978.
They prayed for a further direction to be issued to the respondents calling upon them to hold the election after preparing the electoral roll afresh in accordance with the provisions of the Act and the Rules.
They also prayed for the issue of an interim order staying the poll which had been fixed to be held on December 31, 1978.
On December 30, 1978, the learned Single Judge before whom the case came up for orders directed the issue of notice of the petition and the stay application to the respondents and issued an interim order directing the respondents not to notify the results of the election under Rule 46 of the Rules pending disposal of the petition.
On December 31, 1978, the poll was held and 44 persons were declared elected.
Their names were, however, not published under Rule 46 of the Rules in view of the interim order made by the Court.
Thereafter the successful candidates were also impleaded as respondents and the petition was amended by the inclusion of an additional prayer that the declaration of the results of the election should also be quashed.
After the respondents filed their counter affidavits, the petition was heard and it was dismissed by a Division Bench of the High Court on January 20, 1979.
Aggrieved by the order passed by the High Court, Ashok Kumar Mishra and Bhagwat Singh Thakur (Petitioners No. 1 and 5 respectively in the 494 petition before the High Court) filed a petition for special leave to appeal to this Court and Purshottam Lal Sharma (petitioner No. 6 before the High Court) filed another petition.
On special leave being granted, the above petitions were registered as appeals.
One of the grounds on which the appellants challenged the validity of the electoral roll, the calendar of events and the declaration of results of election was that the entire election process had become vitiated on account of the defect in the notice issued under Rule (1) of the Rules notifying that claims and objections should be preferred within a period of 20 days from the date of the publication of that notice when sub rule (3) of Rule 4 of the Rules prescribed that such claims and objections could be preferred within 30 days from the date of publication of that notice.
It was alleged that by reason of a shorter period being fixed for entertaining claims and objections, a large number or people who could have filed claims and objections were prevented from preferring them within 30 days from the date of publication or the notice which was the prescribed period.
It was alleged that petitioner No. 5 had filed a claim to include his name in the electoral roll on October 19, 1978 and that was rejected by the Deputy Collector without following the procedure prescribed for the purpose.
It was also alleged that on October 20, 1978, 34 persons mentioned in Annexure P 7 approached the Deputy Collector to entertain their claim for inclusion in the electoral roll and he refused to receive their applications.
It was contended that on account of noncompliance with Rule 4(3) of the Rules, which was mandatory, the entire election process held on the basis of the defective electoral roll '.
became a nullity and that therefore, the declaration of results of all the 44 successful candidates was liable to be quashed.
On behalf of the respondents, it was pleaded that while it was true that the period of 20 days had been mentioned in the notice issued under Rule 4(1) of the Rules, it was open to all the persons who were interested in preferring claims or objections to file them within 30 days from the date of publication of the notice under Rule 4(1).
It was pleaded that pursuant to the notice published under Rule 4(1) of the Rules only four claims including that of petitioner No. S were received by the Deputy Collector; that all the applicants were asked to appear on October 30, 1978 to substantiate their claim and that the applications were disposed of on October 30, 1978.
The claim of petitioner No. 5 was rejected as no evidence in support of his claim was produced before the Deputy Collector.
It was further pleaded that no other claims or objections were preferred either on October 20, 1978 or on any other sub sequent date.
The allegation that 34 persons had approached the Deputy 495 Collector requesting him to receive their applications for inclusion of their names in the electoral roll on October 20, 1978 was denied.
They further pleaded that the authorities would have taken action to correct the error in the notice issued under Rule 4(1) of the Rules granting 20 days ' time to prefer claims and objections if it had been brought to their notice by the petitioners immediately after it was noticed by them.
The petitioners were not entitled to any relief under Article 226 of the Constitution on account of the inordinate delay involved in the presentation of the writ petition.
The High Court after hearing the parties dismissed the petition holding (i) that respondent No. 2, the Deputy Collector had asked petitioner No. S to appear before him on October 30, 1978 and that as he did not produce any evidence in support of his claim, his application was dismissed, (ii) that none of the persons mentioned in Annexure P 7 preferred any claim before respondent No. 2 on October 20, 1978 and that he did not refuse to receive any such claim and that no person preferred any claim or objection after October 19, 1978 before respondent No. 2 and (iii) that the petitioners were not entitled to any relief as they had approached the Court after undue delay.
Since one of the grounds on which the High Court dismissed the petition was that the petitioners were not prompt in moving the High Court, we shall first examine whether the High Court was right in doing so, since if we agree with the High Court on the above question, it would become unnecessary to go into the other questions raised before us.
The Collector published the notice under Rule 4(1) of the Rules on September 30, 1978 and also called upon interested persons to prefer claims and/or objections thereto within a period of 20 days.
In paragraph 7 of the notice, it was mentioned that claims and objections received beyond the prescribed period would not be considered.
The period prescribed for preferring claims and objections under Rule 4(3) was 30 days.
It is not the case of the petitioners that they did not know immediately after the publication of such notice that in the said notice a period of 20 days had been mentioned in its preamble as the period within which the claims and objections could be preferred and in paragraph 7 thereof it had been stated that any such claim or objection filed beyond the prescribed period was liable to be rejected.
If they felt that the said notice suffered from any illegality, they could have brought it to the notice of the Collector immediately 496 thereafter.
It was open to them to move the State Government under Rule 6 of the Rules to make an order directing the Collector to follow .
the provisions governing the preparation of the electoral roll.
It was also open to them to file a writ petition immediately after the publication of the said notice questioning its legality.
None of the above courses was adopted by the petitioners.
Persons whose claims were rejected could have filed an appeal under Rule S before the Collector.
No such appeal was presented.
The final electoral roll was published on November 16, 1978.
It was notified that the nominations could be filed on and after November 25, 1978 and the poll, if necessary, would take place on December 31, 1978.
After November 25, 1978, a large number of nominations were received by the Returning officer.
It was only on December 5, 1978 for the first time that a letter was addressed by petitioner No. 6 to the Collector drawing his attention to the error that had crept into the notice published under Rule 4(1) of the Rules.
By that time, the nominations had all been received.
The final list of candidates for the election with their symbols was published on December 20, 1978.
The writ petition itself was filed on December 28, 19?8 when the poll had to take place on December 31, 1978.
When the petition came up for order on December 29, l 978, it had to be adjourned to December 30, 1978 at the request of the counsel for the petitioners.
No satisfactory explanation was given in the course of the petition by the petitioners as to why they delayed the filing of the petition till December 28, 1978 even though they knew that there was an error in the notice issued under Rule 4(1) of the Rules in the month of October, 1978 more than two months before the date on which i, was filed.
It was, however, argued before us relying upon a news item which had appeared in a daily called 'Nav Bharat ' dated October 21, 1978 in which there was a reference to a statement made by the Minister for Local Self Government of Madhya Pradesh regarding the irregularity in the division of Raipur town into different wards for purposes of election.
It was also stated therein that in the course of the discussion with the press reporters on that day, the Minister had stated that he had directed the Commissioner, Raipur Division, Raipur that the date for inclusion of names in the electoral roll could be extended if the election date was not affected.
There was a further reference to dates of election to Bilaspur Municipal Committee having been adjourned twice before.
It is difficult to place any reliance on the above news item for the purpose of concluding that the Collector, Raipur had been informed about the defect in the notice issued under Rule 4(1) of the Rules by October 21, 1978.
The other documents produced alongwith the writ petition referred to omissions of certain names from the electoral roll.
They do not show that any 497 of the petitioners had raised any objection with regard to the date within which the claims and objections could be preferred to the electoral roll mentioned in the notice.
We have, therefore, to proceed on the basis that it was only on December S, 1978 for the first time that the attention of the Collector was drawn to the said error and that the writ petition itself was presented on December 28, 1978.
No satisfactory reason for the delay was set out in the petition.
It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is not satisfactory explanation far the inordinate delay, it may reject the petition if it finds that the issue of Writ will lead to public inconvenience and interference with rights of others.
This rule applies also to a case in which the validity of an election to a local authority is challenged.
The question whether in a given case the delay involved is such that it dissentients a person to relief under Article 226 is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances.
We are not, therefore, impressed by the argument that the petitioners were entitled to the issue of the writ prayed for as of right and the delay in filing the petition should have been ignored.
On the facts and in the circumstances of the case, we are of the view that the writ petition was rightly dismissed by the High Court as there was no satisfactory explanation for the delay in preferring it.
We, therefore, find it unnecessary to deal with the other points urged before us.
For the foregoing reasons, the appeals fail and arc dismissed.
We make no order as to costs.

summary:
On September 30, 1978 the Collector published the preliminary electoral roll under Rule 4(1) of the Madhya Pradesh Municipal Corporation (Preparation, Revision and Publication of Electoral Rolls and Selection of Councillors) Rules, 1963 for the purpose of holding elections in December, 1978 to the Municipal Corporation, and also issued a notice under the said rule inviting claims or objections to be filed within twenty days from the date of publication of the notice.
A period of 30 days was however actually provided in the rule.
The final publication of the electoral roll was made on November 16, .1978.
After November 25, 1978 a large number of nominations were received by the Returning officer arid the final list of candidates for the elections with their symbols was published on December 20, 1978 and the poll took place on December 31, 1978.
The appellants (Petitioners 1, 5 and 6) along with some others in their writ petition filed on December 28, 1978 contended that the entire election process had become vitiated on account of the defect in the notice issued by the Collector under Rule 4 (1) providing 20 days for preferring claims and objections while the rule prescribed 30 days and that by non compliance with this mandatory requirement, the entire election process held on the basis of the defective electoral roll, became a nullity and therefore the declaration of results of the successful candidates was liable to be quashed.
The High Court held that the appellants were not entitled to any relief as they had approached the Court after undue delay.
Dismissing the appeals this Court, ^ HELD: 1.
It is well settled that the power of the High Court under article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue of writ will lead to public inconvenience and interference with rights of others.
This rule applies also to a case in which the validity of an election to a local authority is challenged.
The question whether in a given case.
the delay involved .
is such that it dissentients a person to relief .
under article 226 is a matter within the discretion of the High Court which as in all matters of 492 discretion has to exercise it judiciously and reasonably having regard to The surrounding circumstances.
[497C D] 2.
If the appellants felt that the notice under Rule 4(3) suffered from any illegality, they could have brought it to the notice of the Collector immediately Thereafter.
It was open them to move the State Government under Rule 6 of the Rules to make an order directing the Collector to follow the provisions governing the preparation or the electoral roll.
It was also open to them to file a writ petition immediately after the publication of the said notice questioning its legality.
None of the above courses was adopted by the appellants.
Persons whole claims were rejected could have filed an appeal under Rule 5 before the Collector.
No such appeal was presented.
[495H 496B] 3.
It was only on December 5, 1978 for the first time a letter was addressed by one of the petitioners to the Collector drawing his attention to the error that had crept into the notice under Rule 4(1) of the Rules.
By that time, the nominations had all been received.
The final list of candidates for the election with their symbols was published on December 20, 1978.
The writ petition itself was filed on December 28, 1978 when the poll had to take place on December 31, 1978.
No satisfactory explanation was given in the course of the petition by the petitioners as to why they delayed the filing;, of the petition till December 28, 1978, even though they knew that there was an error in the notice issued under Rule 4(1).
[496C E]