judgement:
Civil Appeal Nos. 285 89 of 1969.
(From the judgment and order dated 7th December, 1966 of the Bombay High Court in Special Civil Appeal Nos. 4 to 8 of 1965) 610 G.L. Sanghi and A.G. Ratnaparkhi for the Appellant.
M.C. Bhandare, Mrs. Sunanda Bhandare, T. Sridharan and Miss C.K Sucharita, for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
In the wake of agrarian reforms initiated by the Bombay Tenancy and Agricultural Lands Act, 1948 ( 'Tenancy Act ' for short) an amendment of far reaching and revolutionary character was introduced in 1956 so as to eliminate every intermediary between the tiller of the soil and the state.
The title of the landlord to the land passes immediately to the tenant on the tillers ' day and there is a completed purchase or sale thereof as between the landlord and the tenant.
The title of the land which was vested originally in the landlord passes to the tenant on the tillers ' day or the alternative period prescribed in that behalf.
This title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Agricultural Lands Tribunal (See Sri Ram Ram Narain Medhi vs The State of Bombay.
Section 32 provided that on April 1, 1957 styled the tillers ' day, a tenant of agricultural land covered by the Tenancy Act would become the owner of the land held by him if other conditions specified in the section were fulfilled.
A forum styled Agricultural Lands Tribunal was set up and a procedure was prescribed in the Act to determine the price payable by such tenant to the erstwhile landlord on becoming owner of the land held by him.
Accordingly five tenants of five different pieces of agricultural land made five separate applications on August 27, 1962 against a common landlord, the appellant herein before the Agricultural Lands Tribunal ( 'ALT ' for short), Raver, under section 32 of the Tenancy Act for determining the price of land held by each of them as tenant.
The land lord appeared in each proceeding and contested the right of the tenant to purchase the land, inter alia, contending that under a deed of settlement dated May 22, 1930, she acquired a right only to usufruct of land involved in the dispute and thus she is a limited owner and the settlement imposes certain disability on her precluding her from dealing with the property which would indicate that she 611 could not have leased out the land thereby creating an encumbrance which would be impermissible under the deed of settlement and consequently the tenant of each piece of land could not be said to be lawfully cultivating the land so as to become the deemed tenant under section 4 of the Tenancy Act.
It was also contended that, the applicant (respondent herein) before ALT was not a tenant within the meaning of the Tenancy Act and therefore he could not have become the owner of the land on the tillers ' day.
Alternatively, it was contended that the minor children of the landlord who being the limited owner, had acquired a vested right in the land involved in the dispute under the deed of settlement and therefore as the landlords were minors the date of compulsory purchase in the case of such minor landlord would be postponed under section 32 and therefore the ALT had no jurisdiction to determine the price under section 32 G.
The ALT held that the appellant was the landlord and the tenant in each case was a deemed tenant under section 4 of the Tenancy Act and on 1st April, 1957 by the operation of law he became the owner thereof.
It was also held that the ALT was under a statutory obligation to determine the price under section 32 G.
The ALT accordingly proceeded to determine the price in each case.
Five separate appeals were preferred by the appellant landlord in each case to the Collector of Jalgaon.
The Collector held that the present appellant landlord had a limited interest in the land and thus as her interest fell short of ownership, she could not be regarded as landlord within the meaning of the expression in the Tenancy Act, Consequently, the Collector held that the tenant in each case could not be deemed to be a tenant within the meaning of the expression in the Tenancy Act.
It was accordingly held that the tenant in each case did not become the deemed purchaser under section 32 and therefore the ALT had no jurisdiction to determine the price.
The Collector allowed all the five appeals and dismissed the five applications preferred by the tenant in each case.
The tenant in each case preferred a revision petition under section 76 of the Tenancy Act before the Maharashtra Revenue Tribunal.
The Special Bench of the Maharashtra Revenue Tribunal by a common judgment allowed five revision petitions preferred by the tenants and set aside the order of the Collector and restored the order made by the ALT holding that even though the landlord in these cases was a limited owner the instrument settling the property 612 on the landlord did not prohibit the landlord from leasing the land and lease was accordingly valid and therefore under section 4, the tenant would be a deemed tenant within the meaning of the Tenancy Act and such deemed tenant would become the owner of the land held by him on the tillers ' day.
The landlord approached the High Court under article 227 of the Constitution.
The Division Bench of the Bombay High Court by a common judgment disposed of the five special civil applications filed by the landlord.
The High Court relying on the decision of this Court in Dahya Lal and Others vs Rasul Mohammed Abdul Rahim held that the deed of settlement did not prohibit the landlord from leasing the land and if the lease is created by such a limited owner not precluded from leasing the land, it would confer on the J tenant of such landlord, the status of a deemed tenant under section 4 and such a tenant would be deemed to have purchased the land held by him on the tillers ' day.
The High Court negatived the contention that the children of the landlord had a vested interest in the land involved in the dispute during the life time of the landlord and The children being minors, the date of purchase would be postponed under section 32 F. The High Court accordingly rejected the special civil applications but remanded the case to the Collector to give an opportunity to the landlord to agitate the contention about the quantum of price which Contention was not dealt with by the Collector on merits.
The landlord by certificate under article 133 (1) (a) and (b) of the Constitution preferred these five appeals Expression 'Tenancy ' has been defined in section 2 (17) of the Act to mean "relationship of landlord and tenant". 'Tenant ' is defined in section 2 (18) as under: 'Tenant" means a person who holds land on lease and includes: (a) a person who is deemed to be a tenant under section 4; (b) a person who is a protected tenant; and 613 (c) a person who is a permanent tenant;" Section 4 which is material for the present appeal reads as under: "4.
A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not: (a) a member of the owner 's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner 's family, or (c) a mortgagee in possession.
" There are two explanations appended to this section which are not material for the present purpose.
Section 32 (1) which was introduced in 1956 provided that on the 1st day of April, 1957, called the tillers ' day, every tenant, subject to the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant if he satisfied the conditions set out in the section.
Section 32G provided that as soon as may be after the tillers ' day, the ALT shall publish or cause to be published a public notice in the prescribed form in each village within the jurisdiction calling upon: (a) all tenants who u/s 32 are deemed to have purchased the lands: (b) all landlords of such lands, and (c) all other persons interested therein; to appear before the ALT on the date specified in the notice.
The ALT shall then proceed to record statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant If the tenant is willing to purchase, the Tribunal shall after giving an opportunity to the tenant and landlord and all the other persons 614 interested in such land to be heard and after holding an enquiry determine the purchase price of such land in accordance with the provisions of section 32 and sub section 3 of section 63A. Section 32 post pones the date of statutory purchase in the case where a landlord is a minor or a widow or a person subject to any mental or physical disability or a serving member of the armed forces to a date one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31.
Having noticed the relevant provisions of the Act, it is necessary first to refer to the deed of settlement under which the landlord acquired land involved in this appeal.
By the deed of settlement Exh.
2 A dated May 22, 1930 Devidas Devlal Seth father and Sheo Parshad Devidas Seth, brother of the appellant landlord settled on trust the properties more particularly described in the deed.
At the time of settlement, appellant the beneficiary under the trust was a minor and the deed provided for the consequences to ensue on her attaining majority.
The relevant portion of the deed of trust in this behalf reads as under: "After the girl completes 21 years and while she is physically and mentally in good condition, the right of carrying on the 'vahivat ' (management) of the estate and of spending the income thereof is with her alone, during her life time.
However, she has no right in any way either to purchase the aforesaid estate or to create in any way a charge (Translation is disputed and is stated that 'encumbrance ' is the appropriate rendering) thereon; nor she has a right to dispose of the said estate under a will.
" The deed provides for the disposal of the estate on the death of beneficiary, the appellant giving 2/3rd of the estate to her male issues and 113rd to the female issues.
In this behalf the recital in the deed is: that the children as many as will be alive at the time of her death are to get the estate according to the terms mentioned in the deed and if no child will be living the estate is to go to her grand children according to the terms in the deed.
The direction was given that 2/3rd and 1/3rd share shall be given to the children who will be living at the time of her death and in the event that there is no child of a particular sex the whole estate was to go to the children 615 of the other sex.
There is also a provision about disposal of the estate in the event the appellant has no child of her own.
The contention which Mr. G.L. Sanghi, the learned counsel for the appellant put in the forefront was that the appellant being a limited owner under the deed of settlement was not entitled to lease the land and therefore respondents could not be said to be said to be lawfully cultivating the land and therefore could not become deemed tenants under section 4.
Consequently, they could not have become deemed purchasers on the tillers ' day.
As a corollary it was contended that in any event as the children have a vested remainder in the estate the date of purchase would be postponed as provided in section 32 of the Act, and therefore ALT could not entertain an application under section 32 and proceed to determine the price on the footing that the tenant has become a deemed purchaser.
Under the deed of settlement appellant acquired a life interest and the reversion remainder was in her children.
During her life time she was entitled to enjoy the income of the property but she could not dispose of the property by will, gift or sale.
She was also under a disability to encumber the estate and it was urged that lease is an encumbrance.
The substantial question is whether a limited owner of agricultural land governed by the Tenancy Act during his/her life time was entitled to lease the land and if he or she did lease the land whether the tenant inducted by the holder of life estate could be said to be lawfully cultivating the land so as to acquire the status of a deemed tenant under section 4 and as a corollary would become a deemed purchaser on the tillers ' day.
Section 4 has been extracted hereinbefore.
It comprehends within its sweep any person lawfully cultivating any land belonging to another person.
If land belongs to one person and another is lawfully cultivating it, unless such person falls under any of the excepted categories; he would acquire the status of a deemed tenant.
The excepted categories are: (a) a member of the owner 's family, or (b) a servant on wages payable in cash or kind but not in crop share of a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner 's family, or (c) a mortgagee in possession.
It would thus appear that if the land belonging to one person is being lawfully cultivated by another person and that such other person is not a member of the owner 's family or a servant on wages payable in cash or kind but not in crop share or a hired labourer or a mortgagee in possession then such cultivator lawfully cultivating the land would be deemed 616 to be a tenant.
The legal fiction of clothing a lawful cultivator of land belonging to other person has widened the traditional concept of expression 'tenant ' which would normally imply contractual relationship.
Under the deed of settlement appellant was given a life estate.
She was the owner of the land during her life time with a limitation that she could not will, gift or sell the property or encumber the same.
In view of these four limitations she is undoubtedly a limited owner.
But this limited owner holding the life estate has been given the right to administer the estate after she attained majority.
Administration of the estate would normally include leasing of the property except where a specific condition is prescribed precluding the administrator from leasing the property.
There is no such limiting or restrictive condition prohibiting the appellant in the course of her management from leasing the land.
The appellant beneficiary being a woman, the settlors must have thought that she may not be able to personally carry on agricultural operations and therefore when the settlors authorised her, on attaining majority, to administer the estate it would per se in the absence of a limiting or restricting condition to the contrary enable her to lease the land.
Thus, if the appellant as beneficiary after attaining majority took over the administration and as part of the administration leased the land, the person so inducted by her on the land would be lawfully cultivating the land belonging to the appellant and being not in any of the excepted categories would be deemed to be a tenant.
On a plain reading of the deed and the admitted position that she had leased the land to each of the respondents and keeping in view the requirements of section 4, the conclusion that the respondents would be deemed tenants under section 4 of the Act is inescapable.
The view which we are taking, is borne out by the observations of this Court in Dahyalal and Ors.
vs Rasul Mohammed Ahdul Rahim (supra).
In that case the tenant was inducted on the land by a mortgagee in possession and the contention was that as the mortgagee in possession would not be deemed to be a tenant because he is in the excepted categories set out in section 4, the tenant inducted by him would not acquire the status of a deemed tenant.
After analysing the provisions of the Tenancy Act, this Court held that all persons other than those mentioned in clauses (a), (b) and (c) of section 4 who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed tenants of the land.
The execution of 617 mortgagee in possession from the category of deemed tenant was explained on the ground of public policy in that to confer such status upon mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character.
However, the tenant inducted by a mortgagee in possession in discharge of his liability of prudent management cast by section 76(a) of the Transfer of Properly Act as also under the authority derived from the mortgagor would be lawfully cultivating the land.
Accordingly the person inducted would be a deemed tenant who would be entitled to the protection of the Act even after the mortgage is redeemed.
Once such a tenant enjoys the status of a deemed tenant and holds land in that capacity, on the tillers ' day he would become the deemed purchaser.
A contention was raised that this Court overlooked in Dahyalal 's ease a vital point that a transferor cannot confer a better title on another than he himself possesses and that therefore in view of section 76(a) of the Transfer of Property Act a mortgagee in possession cannot create an interest to endure beyond redemption of mortgage to bind the mortgagor.
It was urged that if a mortgagee in possession is specifically excluded from acquiring status of a deemed tenant, ipso facto tenant inducted by him cannot acquire that status.
The court negatived the contention.
It would be advantageous in this context to refer to Prabhu vs Ramdeo and Ors.
where this Court held that a tenant of a mortgagee in possession can invoke the benefit of subsequent tenancy legislation which provided that such a tenant could not be evicted except in the circumstances set out in that legislation.
The mortgaged property in that case was land used for agricultural purposes and the mortgage was usufructory mortgage.
After redemption the original mortgagor sued for actual possession from tenant inducted by the erstwhile mortgagee alleging that on redemption of mortgage, the tenant has to surrender possession.
In the meantime, Rajasthan Tenancy Act of 1955 had been introduced and the tenant claimed protection against eviction under it.
This Court after referring to Mahabir Gope and Others vs Harbans Narain Singh and others and Harihar Prasad Singh and Another vs Must.
of Manshi Nath Prasad and Others held that rights of the tenants inducted by the mortgagee may 618 conceivably be improved by virtue of statutory provisions which may meanwhile come into operation.
Such a case would clearly be an exception to the general rule prescribed by the Transfer of Property Act that mortgagee in course of management cannot create an interest which would endure beyond the redemption of mortgage.
It was next contended that in any event the appellant having been given a life estate with the vested remainder in her children, she had no vested interest in the property during her lifetime but her interest would be contingent interest and therefore even during her lifetime, the children would be the owners and as they were minors the date of statutory purchase would be postponed under section 32 F. Looking to the terms of the deed of settlement, subject to the limitations therein prescribed the appellant had a vested interest with a right to take over management on attaining majority and to deal with the property in her own way.
Assuming without deciding that she had no right to will, gift, sell or encumber the property yet assuming she did deal with it in the manner prohibited it would nonetheless be binding during her lifetime.
The property would devolve on the heirs named in the deed and the devolution would take place on her death.
Therefore, upon a pure literal construction of deed coupled with intendment of the settlement it is difficult to accept Mr. Sanghi 's submission that her interest in the property during her life time was contingent interest.
This will further be borne out by the provision contained in section 13 of the Transfer of Property Act inasmuch as she was given life or limited interest and the remainder to her children none of whom was in existence at the time of transfer.
Even if transfer is in favour of unborn person, at the date of transfer to be valid there has to be a prior interest created by the very transfer.
This prior interest though limited would not be contingent but vested interest.
In fact the interest of future born children would be contingent till the death of the appellant.
The deed of settlement cannot be construed as a transfer in favour of unborn person, yet it settles property on trust and the unborn children, under trust, may be beneficiaries but they can claim interest only after the death of the appellant and no interest in her life time.
Under the deed of settlement an interest is created in favour of the children of the appellant and the interest would take effect on the happening of specified uncertain event uncertain as to time namely, the death of the appellant, then till the death of the appellant the interest of the children would be contingent.
It is nothing short of spes 619 successionis.
Mr. Sanghi, however, referred to Rajes Kanta Roy vs Santi Debi and urged that by a parity of reasoning we must hold that the interest of the appellant was a contingent interest.
In that case one Ramani created an endowment in respect of some of his properties in favour of his family deity and appointed his three sons as shebaits.
After the death of one of his sons, widow of the deceased son instituted a suit against other members of the family for a declaration that she as an heir of her deceased husband, was entitled to function as shebait, in place of her husband.
The suit ended in a consent decree recognising the right of the widow as a co shebait.
Subsequently the settlor Ramani and his two other sons filed a suit against widow of the pre deceased son for a declaration that the consent decree was null and void.
During the pendency of the suit the settlor Ramani executed a registered trust deed in respect of his entire property.
The eldest son was appointed trustee to hold property under trust subject to certain powers and obligations.
The second suit which was pending at the death of settlor Ramani ended in a consent decree.
One of the terms of the consent decree was that widow of the predeceased son gave up her rights under the earlier consent decree by which she obtained status of co shebait and she was paid Rs. 475/ per month as allowance.
Complaining of a default in the payment of allowance she filed an application for execution to realise the arrears and she sought attachment and sale of certain properties.
The eldest son filed an objection contending that under the settlement of trust his interest in the property was contingent till the debts are paid and as the precondition is not satisfied the contingent interest is not attachable.
Negativing this contention, it was held that the determination of the question as to whether any interest created by trust deed is vested or contingent has to be guided by the principles recognised under sections 19 and 21 of the Transfer of Property Act and the Indian Succession Act.
After referring to certain English authorities and text books by writers it was held that the question is really one of intention to be gathered from a comprehensive view of all the terms of a document.
After examining all the terms of the deed of trust, this Court held that even though the debts were not discharged the appellants, namely, the sons acquired a vested interest and not a contingent one.
Having examined the trust deed before us, we are satisfied that the appellant had the vested interest in the property during 620 her life time and the children had only contingent intermediating that period.
It was lastly contended that as the appellant was prohibited from creating an encumbrance on the property, she had no right to lease the property because in a certain way lease is also an encumbrance.
Without going into the wider question whether the expression 'encumbrance ' in the context in which it is used would comprehend lease within its fold we would dispose of the contention on the short ground that the right to administer the property confined on the appellant on her attaining majority inheres the right to lease the property.
If it be so, it is futile to contend that restraint on the right to encumber would preclude her from leasing the land.
The right to manage or administer an immovable property such as agricultural land as a prudent man, comprehends the right to lease, save where the contrary intention is indicated.
It is equally well recognised that a limited owner or a life estate holder in agricultural land, unless a clear intention to the contrary is expressed, would be entitled to lease the land during his or her life time.
Reading the deed of settlement as a whole, we do not find any such contrary intention and, therefore, we must negative the contention .
Having examined all the contentions of Mr. Sanghi, we find no merit in any of them and therefore all these appeals fail and are dismissed with costs.
Hearing fee in one set.
V.D.K .
Appeals dismissed.

dataset_name: IN-Abs

summary:
Under the deed of settlement (exhibit 2A) dated May 22,1930, the appellant landlady acquired a life interest in certain agricultural lands under dispute and the reversion remainder was in her children.
During her lifetime she was entitled to enjoy the income of the property but she could not dispose of the property by will, gift or sale.
She was also under a disability to encumber the estate though she had the right of carrying on the "vahivat" (management).
By virtue of the provisions of section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, providing that on April 1, 1957 styled as tillers ' day, a tenant of Agricultural land covered by the said Act would be the owner of the land held by him, if other conditions specified therein are fulfilled, the respondents made five separate applications on August 27, 1962 against the appellant before the Agricultural Lands Tribunal, Raver under section 32G for determining the price of the land held by each of them as tenant.
The appellant contested the right of the tenant to purchase the land, inter alia contending that under the deed of settlement she acquired a right only to usufruct of land involved in the dispute and she being a limited owner and the settlement imposing certain disability on her precluding her from dealing with the property which would indicate that she could not have leased out the land thereby creating an encumbrance which would be impermissible under the deed of settlement and consequently the tenant of each piece of land could not be said to be lawfully cultivating the land so as to a become the deemed tenant under section 4 of the Tenancy Act.
The respondents not being tenants within the meaning of the Tenancy Act could not have become the owner of the land on the tillers ' day.
Alternatively it was contended that the minor children of the appellant, she being a limited owner had acquired a vested right in the land and, therefore, as they were minors the date of compulsory purchase would be postponed under section 32F ousting the jurisdiction of the tribunal to determine the price under section 32G.
The Tribunal allowed 608 the applications and negatived the appellant 's contentions.
All the five appeals preferred by the appellant were allowed by the Collector of Jalgaon.
The revision petitions filed by the tenants under section 76 of the Tenancy Act before the Maharashtra Revenue Tribunal were allowed holding that even though the landlady in these cases was a limited owner the instrument settling the property on the landlady did not preclude her from leasing the land and the lease was accordingly valid under section 4, the tenant would be a deemed tenant within the meaning of the Tenancy Act and such deemed tenant would become the owner of the land held by him on the tillers ' day.
The appellant approached the High Court under Article 227 of the Constitution.
While rejecting the special civil applications the High Court remanded the case to the Collector to give an opportunity to the appellant to agitate the contention about the quantum of price as it was not dealt with by the Collector on merits.
The appellant having obtained a certificate under Article 133(1) (a) and (b) of the Constitution preferred these five appeals.
Dismissing the appeals, the Court, ^ HELD: 1.
On a plain reading of the deed and the admitted position that the appellant had leased the land to each of the respondents and in view of the requirements of section 4 of the Tenancy Act, 1948, it is clear that the respondents would be deemed tenants under that section.
[616 E F] 1 :1.
Section 4 comprehends within its sweep any person lawfully cultivating any land belonging to another person.
If land belongs to one person and another is lawfully cultivating it, unless such person falls under any of the excepted categories; he would acquire the status of a deemed tenant.
The excepted categories are: (a) a member of the owner 's family, or (b) a servant on wages, payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner 's family, or (c) a mortgagee in possession.
It would thus appear that if the land belonging to one person is being lawfully cultivated by another person and that such other person is not a member of the owner 's family or a servant on wages payable in cash or kind but not in crop share or a hired labourer or a mortgagee in possession then such cultivator lawfully cultivating the land would be deemed to be a tenant.
The legal fiction of clothing a lawful cultivator of land belonging to other person has widened the traditional concept of expression "tenant" which would normally imply contractual relationship.
[615 E H, 616A] 1:2.
Under the deed of settlement appellant was given a life estate.
She was the owner of the land during her life time with a limitation that she could not will, gift or sell the property or encumber the same.
In view of these four limitations she is undoubtedly a limited owner.
But this limited owner holding the life estate has been given the right to administer the estate after she attained majority.
Administration of the estate would normally include leasing of the property except where a specific condition is prescribed precluding the administrator from leasing the property.
There is no such limiting or restrictive condition prohibiting the appellant in the course of her management from leasing the land.
The appellant beneficiary being a woman, the settlors must have thought that she may not be able to personally carry on agricultural operations and therefore when the settlors authorised her, on attaining majority, to administer the estate 609 it would per se in the absence of a limiting or restricting condition to the countrary enable her to lease the land.
Thus, if the appellant as beneficiary after attaining majority took over the administration and as part of the administration leased the land, the person so inducted by her on the land would be lawfully cultivating the land belonging to the appellant and being not in any of the excepted categories would be deemed to be a tenant.[616 B E] Dahyalal and Ors.
vs Rasul Mohammed Abdul Rahim, ; , followed.
Upon a pure literal construction of deed coupled with intendment of the settlement, the appellants ' interest in the property was a vested interest during the life lime with a right to take over management on attaining majority and to deal with the property in her own way, and the children had only contingent interest during the period.
The property would devolve on the heirs named in the deed and the devolution would take place on her death.
Section 13 of the Transfer of Property Act makes this position clear since none of her children to whom the remainder was given was in existence at the time of transfer.
Even if transfer is in favour of unborn person, at the date of transfer to be valid there has to be a prior interest created by the very transfer.
This prior interest though limited would not be contingent but vested interest.
In fact the interest of future born children would be contingent till the death of the appellant.
The deed of settlement cannot be construed as a transfer in favour of unborn person, yet it settles property on trust and the unborn children, under trust, may be beneficiaries but they can claim interest only after the death of the appellant and no interest in her life time.
Under the deed of settlement an interest is created in favour of the children of the appellant and the interest would take effect on the happening of specified uncertain event uncertain as to time namely, the death of the appellant the interest of the children would be contingent.
It is nothing short of spes successionis [618 D H, 619 A] Rajes Kanta Roy vs Santi Debi, ; , discussed and distinguished.
The right to administer the property conferred on the appellant on her attaining majority inheres the right to lease the property.
If it be so, it is futile to contend that restraint on the right to encumber would preclude her from leasing the land.
The right to manage or administer an immovable property such as agricultural land as a prudent man, comprehends the right to lease, save where the contrary intention is indicated.
It is equally well recognised that a limited owner or a life estate holder in agricultural land, unless a clear intention to the contrary is expressed, would be entitled to lease the land during his or her life time.
Reading the deed of settlement as a whole no such contrary intention could be found.
[620 B D]


judgement:
: Criminal Appeal No. 90 of 1981.
From the Judgment and order Dated 7th August 1980 of the High Court of Punjab and Haryana at Chandigarh in Crl.
Appeal No. 909 of 1979.
Prem Malhotra for the Appellant.
K.G. Bhagat and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
The question for consideration in this appeal by special leave is whether a person under 16 years of age and accused of an offence under section 302, Penal Code can get the benefit of the Haryana Children Act, 1974 (hereinafter 'the Act ').
The undisputed facts are that the appellant along with three others was convicted of the offence of murder and sentenced to imprisonment of life by the Sessions Judge.
The appeal was dismissed by the High Court.
The appellant then filed an application for special leave to appeal under Article 136 of the Constitution.
Leave was 688 granted confined to the question of the applicability of the Act to his case.
It is also not disputed that the appellant was less than 16 years at the time he first appeared before the Trial Court.
He was thus a 'child ' within the meaning of that term under clause (d) of section 2 of the Act.
Mr. Prem Malhotra, learned counsel appearing for the appellant, submitted that in view of Section 5 of Criminal Procedure Code, 1973 (hereinafter called 'the Code '), the appellant would get the benefit of the Act; while on the other hand, Mr. Bhagat appearing for the State, relying on section 27 of the Code submitted that an offence punishable with death or imprisonment for life would not be triable under the Act.
There is a decision of this Court on the point in the case of Rohtas vs State of Haryana reported in ; , that held the trial of a child under the provisions of the Act was not barred.
In that case, however, it appears, section 27 of the Code was not brought to the notice of the Court.
In that view of the matter, the Bench consisting of two members including one of us (Baharul Islam, J.) before whom this appeal came up for hearing referred it to a larger Bench, in order to avoid possible conflict of decisions.
This is how this appeal came up for hearinbefore this Bench consisting of three members.
Mr. Malhotra submits that section 5 of the Code leaves special and local laws unaffected by the provisions of the Code and that, therefore, the Act remains wholly intact.
On the other hand, Mr. Bhagat 's submission is that all offences are triable under the Act by reason of the provision of section 27 of the Code so long as they fall within the category of offences "not punishable with death or imprisonment for life.
In the Act, 'child ' has been defined as meaning a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. 'Delinquent child ' has been defined as meaning a child who has been found to have committed an offence.
Apart from procedural differences in the Act and the Code, for the trial of a child for murder, the outstanding difference is that the trial of the child under the Code may end in the sentence of death or imprisonment for life while a child cannot be sentenced to death or imprisonment for life under the Act.
In order to better appre 689 ciate the differences, it is necessary to refer to some of the salient A provisions of the Act.
Sub section (1) of section 4 provides for the constitution of a children 's court.
It provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898 (hereinafter the 'Old Code '), the State Government may constitute one or more children 's courts for exercising the powers and discharging the duties conferred or imposed on such court in relation to delinquent children under the Act.
Sub section (3) of section 5 provides that a person may be appointed as a member of the Board or as a magistrate in the children 's court only where he has in the opinion of the State Government, knowledge of child psychology and child welfare.
Sub section (1) of section 6 of the Act provides that where a Board or a children 's court has been constituted for any area, such Board or court shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in the Act, have power to deal exclusively with all proceedings under the Act relating to neglected children or delinquent children, as the case may be.
Section 8 provides for establishment of children 's homes, section 9 for Special Schools, section 10 for observation Homes and section 11 for the establishment of Aftercare organisations.
Section 17 provides for the bail and custody of delinquent children.
It provides that a child accused of any non bailable offence, notwithstanding anything contained in the old Code or in any other law for the time being in force be released on bail with or without surety unless such release defeats the purpose of the Act.
Section 19 provides that the children 's court shall hold an inquiry against the child charged with an offence in accordance with the provisions of section 37 of the Act and may, subject to the provisions of the Act, make such order in relation to the child as it deems fit.
Section 20, inter alia, provides that where a children 's court is satisfied on inquiry that a child has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the children 's court may, if it thinks fit, (a) allow the child to go home after advice or admonition; (b) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian, or other fit person on his 690 executing a bond with or without surety as the court may require for the good behaviour and well being of the child for any period not exceeding three years; and (c) make an order directing the child to be sent to a special school.
Section 21 is important.
It prohibits passing of certain orders against delinquent children.
It provides, inter alia, that notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent child shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security.
Section 23 bars the joint trial of a delinquent child with any other person who is not a child.
Sub section (2) of section 23 enjoins separation of trials of a delinquent child and a person who is not a child, when they are sent up in the same case.
Sub section (1) of section 65 which is important is in the following terms: "The (Central Act 8 of 1897), and sections 29B and 399 of the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), shall cease to apply to any area in which this Act has been brought into force.
" Section 29B of the old Code is equivalent to section 27 of the Code.
Section 399 of the old Code provided for confinement of the delinquent children in reformatories after conviction instead of sending them to prison.
It may be mentioned that there are similar provisions in the central (Act LX of 1960) which is applicable to the Union Territories only.
Section 22 of this Act is in pari materia with section 21 of the Haryana .
A perusal of the above and other provisions of the Act and those of the central shows that the procedure for trial, conviction and sentence under the Children Acts are simple, humane and by courts manned with persons with knowledge of child psychology and child welfare; but not so under the Criminal Procedure Codes of 1898 and 1973.
The intention of the State Legislature of Haryana and of the 691 Parliament in enacting the Children Acts was to make provisions for trial of delinquent children and dealing with them in accordance with such procedures, so that the delinquent children do not come in contact with accused persons who are not children and but are hardened criminals.
The purpose undoubtedly was to reclaim delinquent children and rehabilitate them in such a way that they become useful citizens later in life.
It may be mentioned at this stage that the Act came into force on March 1, 1974 while the Code of Criminal Procedure, 1973 came into force on April 1, 1974.
If there be any conflict between any provisions of the Act and the Code, in view of Article 254(1) of the Constitution, the provision of the Act repugnant to any provision of the Code will be void to the extent of repugnancy.
It was not the contention of Mr. Bhagat appearing for the State that the Act was bad for lack of legislative competence of the State Assembly or for any other reason.
The sheet anchor of his submission was section 27 of the Code of 1973.
Let us now set out the relevant provisions of the Code of Criminal Procedure Code, 1973 with which we are directly concerned.
Section 4 reads: "(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
" Section 5 reads: "Nothing contained in this Code shall, in the absence of a special provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
" 692 Section 27 reads: "Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the , or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders." Putting emphasis on the expressions, "in the absence of any specific provisions to the contrary", occurring in section 5, Mr. Bharat submits that section 27 is the specific provision to the contrary and as such this provision shall affect the Haryana which is a local law for the time being in force.
We are unable to accept the submission.
As it has been pointed out above, the purpose of the Haryana Legislature as well as of the Parliament in enacting the Haryana and the Central (Act LX of 1960) respectively was to give separate treatment to delinquent children in trial, conviction and punishment for offences including offences punishable with death or imprisonment for life.
In our opinion, section 27 is not 'a specific provision to the contrary ' within the meaning of section 5 of the Act; the intention of the Parliament was not to exclude the trial of delinquent children for offences punishable with death or imprisonment for life, inasmuch as section 27 does not contain any expression to the effect "notwithstanding anything contained in any passed by any State Legislature".
Parliament certainly was not unaware of the existence of the Haryana coming into force a month earlier or the Central coming into force nearly fourteen years earlier.
What section 27 contemplates is that a child under the age of 16 years may be tried by a Chief Judicial Magistrate or any court specially empowered under the .
It is an enabling provision, and, hl our opinion, has not affected the Haryana in the trial of delinquent children for offences punishable with death or imprisonment for life.
Criminal Procedure appears in Item 2 of the Concurrent List of the Seventh Schedule of the Constitution.
One of the circumstances under which repugnancy between the law made by the State and the law made by the Parliament may result is whether the provisions of a Central Act and a State Act in the Concurrent List 693 are fully inconsistent and are absolutely irreconcilable.
In the A case in hand as we have shown that the relevant provisions of the Code and the Act can co exist.
Their spheres of operation are different.
Mr. Bhagat in support of his contention has relied on a Full Bench decision of the Madhya Pradesh High Court reported in The Full Bench of three judges considered the jurisdiction of the Madhya Pradesh Bal Adhiniyam, 1970 (15 of 1970) to try a juvenile offender for offences punishable with death or imprisonment for life.
There was a difference of opinion.
The view of the majority was that the juvenile courts constituted under the Madhya Pradesh Bal Adhiniyam has exclusive jurisdiction to try a delinquent child (a person under 16 years of age for all offences except those punishable with death or imprisonment for life even after the commencement of the Code of Criminal Procedure, 1973 (Act 2 of 1974), while the minority view of Verma J. was to the contrary.
With respect, the majority view is erroneous.
Verma J. has observed as follows: "The only question before us is whether the provisions of the New Code have brought about any change in this position.
There can be no doubt that if there is an irreconcilable conflict between the provisions of the New Code and those of the Bal Adhiniyam, then the New Code being the later Central enactment it will supersede Bal Adhiniyam the earlier State enactment to the extent of repugnancy by virtue of Cl.
(1) of article 254 of the Constitution.
The real question, therefore, is whether there is any such repugnancy between the two enactments so as to attract article 254.
It is equally clear that in case there is no such repugnancy and the relevant provisions of the two enactments are capable of co existence, then article 254 would not be attracted, and the provisions of the Bal Adhiniyam conferring exclusive jurisdiction on the Juvenile Courts to try all offences including those punishable with life imprisonment or death would continue to operate.
Such a conclusion is supported also by the fact that the Bal Adhiniyam is a special local Act while the New Code is a general enactment applicable throughout the country on account of which the special Local Act would apply within this State in preference to the general law on the subject.
It is in this light that the question has to be examined with a view 694 to determine whether there is any such irreconcilable conflict so as to attract article 254 of the Constitution.
This is the real question for decision." He has held: "Applying the tests indicated by the settled principles.
I have no hesitation in holding that there is no real conflict between the provisions of the New Code, particularly section 27 thereof, and the provisions of the Bal Adhiniyam.
In short, the provisions of the New Code clearly save any special or local law like the Bal Adhiniyam and section 27 of the New Code is merely an enabling provision which does not express any contrary intention to undo the saving provided in section 5 of the New Code.
There being thus no conflict or repugnancy, the question of article 254 of the Constitution being attracted does not arise.
" With respect, Verma J. has expressed the correct opinion.
As a result of the foregoing discussions, we allow the appeal, set aside the conviction and sentence imposed upon the appellant and quash the entire trial of the appellant.
We direct that the appellant shall be dealt with in accordance with the provisions of the Haryana .
It is a pity that the point urged before us was not urged in any of the Courts below.
S.R. Appeal allowed.

summary:
Allowing the appeal, the Court.
^ HELD: 1.
The trial of a chid under the provisions of the Haryana Children Act, 1974 for the offence of murder was not barred.
The appellant here was a child within the meaning of that term under clause (d) of section 2 of the Act.
[689 A, C] 2.
A perusal of section 22 of the Central (Act LX of 1960) which is in pari materia with section 21 of the Haryana and other provisions of the State and Central Children Acts shows that the procedure for trial, conviction and sentence under the Children Acts are simple humane and by Courts manned with persons with knowledge of child psychology and child welfare; but not so under the Criminal Procedure Codes of 1898 and 1973.
The intention of the State Legislature of Haryana and of the Parliament in enacting the Children Acts was to make provisions for trial of delinquent children and dealing with them in accordance with such procedure so that the delinquent children do not come in contact with accused persons who are not children and but are hardened criminals.
The purpose undoubtedly was to reclaim delinquent children and rehabilitate them in such a way that they become useful citizens later in life.
[691 G H, 692 A B] 3:1.
The purpose of the Haryana Legislature as well as of the Parliament in enacting the Haryana and the Central respectively was to give separate treatment to delinquent children in trial, conviction and punishment for offences including offences punishable with death or imprisonment for life [693 C D] 3:2.
Section 27 of the Criminal Procedure Code, 1973 is not 'a specific provision to the contrary ' within the meaning of section S of the Code the intention of the Parliament was not to exclude the trial of delinquent children for offences punishable with death or imprisonment for life, inasmuch as section 27 does not contain any expression to the effect "notwithstanding anything contained in any passed by any State Legislature".
Parliament 687 certainly was not unaware of the existence of the Haryana coming into force a month earlier or the Central coming into force nearly fourteen years earlier.
What section 27 contemplates is that a child under the age of 16 years may be tried by a Chief Judicial Magistrate or any court specially empowered under the .
It is an enabling provision and has not affected the Haryana in the trial of delinquent children for offences punishable with death or imprisonment for life.
[693 C, D G] 4:1.
If there be any conflict between any provisions of the Act and the Criminal Procedure Act, in view of Article 254(1) of the Constitution, the provision of the Haryana repugnant to any provision of the Criminal Procedure Code will be void to the extent of repugnancy [692 B C] 4:2.
Criminal Procedure appears in Item 2 of the Concurrent List of the Seventh Schedule of the Constitution.
One of the circumstances under 'which repugnancy between the law made by the State and the law made by the Parliament may result is whether the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable.
In the case in hand the relevant provisions of the Criminal Procedure Code and the Haryana can co exist.
Their spheres of operation are different.
[693 G H, 694 A] Dev Singh and 2 Ors.
vs State of Madhya Pradesh, Madhya Pradesh, overruled.