judgement:
Criminal Appeal No. 559 of 1983.
From the Judgment and Order dated 7.1.1982 of the Punjab and Haryana High Court in Crl.
Appeal No. 537 (SB) of 1980.
Harbans Lal, I.S. Goel and K. Chaudhri for the Appellant.
Govind Mukhoty (Amicus Curiae) for the Respondent.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
Uttam alias Cheaku, the respond ent herein along with three others was tried by the learned Additional Sessions Judge, Gurgaon for alleged commission of offences under Sections 395,397 and 4 12 of the Indian Penal Code.
By judgment dated July 21.
1980, the learned Addition al Sessions Judge held that the charge against Uttam under Section 395 I.P.C. was proved beyond all reasonable doubt and he was accordingly convicted and sentenced to undergo rigorous imprisonment for four years.
The other three ac cused were acquitted on the ground that their participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt.
The respondent carried the matter in appeal to the High Court of Punjab and Haryana.
The High Court by its impugned judgment dated January 7, 1982 allowed the said appeal, extending the benefit of doubt to the respondent, and set aside his conviction and sen tence.
The State of Haryana has come up to this Court with this appeal against the said order of acquittal after ob taining Special leave from this Court.
Briefly stated, the prosecution case i.s that on October 24, 1978, Om Parkash (P.W. 5) accompanied by his wife Jai Rani (P.W. 6) and their daughter Neelam left Delhi in the early hours of the morning for Jaipur by car.
Om Parkash and his wife Jai Rani were in the front seat of the vehicle while their daughter was occupying the rear seat.
When their car had reached about 10 12 Kms.
beyond Gurgaon on the Delhi Jaipur Road, another car bearing registration No. DEA 2914 came 1067 from behind and attempted to overtake their vehicle.
Even though Om Parkash had made way for the other car to pass, that car deliberately swerved to the left side and struck against the front wheel of his car, whereupon Om Parkash stopped his car on the left side of the road in the kacha portion.
In the meantime, the other car also stopped at a distance of about ten paces ahead and five persons came out of that vehicle.
It is stated that two or three out of them were armed with revolvers and others with daggers.
Om Par kash got out of the vehicle and asked the assailants as to why they had caused the accident.
In the meantime, Jai Rani also came out of the car.
One of the assailants then gave a couple of knife blows in the chest of Om Parkash, whereupon he tried to raise an alarm.
Hearing the said cry ' for help, some trucks which were passing along that road tried to stop but one of the assailants who was armed with a pistol, fired shots in the air and scared away those truck drivers.
There after one of the assailants removed the ear rings, necklace and wrist watch from the person of Jai Rani and in that process one of her ear lobes was cut as under.
The wrist watch and purse of Om Parkash were also removed by one of the culprits.
Apart from that, three attache cases which were on the luggage carrier of the car were also forcibly removed and taken away by the miscreants.
Before the cul prits left the spot in their car with all the booty, a shot was fired by one of them which hit Om Parkash on his fore head.
After inflicting the said injury, the miscreants made good their escape.
Om Parkash somehow managed to drive back his car to Gurgaon and there he contacted his partner Joginder Singh (P.W. 7) to whom he narrated the whole incident.
Om Parkash was immediately taken to Civil Hospital, Gurgaon where he was medically examined and various injuries were found on his person.
Jai Rani also medically examined and the injury on her right ear lobe was declared to be grievous.
The other injuries were found to be simple for which she was given first aid.
The first information report was thereafter lodged with the police by Om Parkash and Sub Inspector Tilak Raj (P.W. 21) carried out the investigation.
He recovered empty cartridge cases (Exhibits P. 15 and P. 16), one wad (Exhibit P. 17) and one Ball Point Pen (Exhibit P. 18) from the place of occurrence.
During the investigation it was found that the car used by the culprits had been stolen on October 23, 1973 from the house of its owner, one S.K. Mahajan.
Subsequently, on October 27, 1978, the car was found lying abandoned in the Ghaziabad factory area and it was taken into police custody.
The accused were arrested after a fairly long delay since it so happened that subsequent to the occurrence in question the accused 1068 persons had been allegedly involved in the commission of other crimes in the State of Uttar Pradesh and they were lodged in the Meerut jail.
After the accused were brought from Meerut, two test identification parades were held, one separately for Uttam at his request and the other for the remaining suspects.
In the first parade, Uttam was correctly identified by both Om Parkash and Jai Rani.
In the second identification parade, Om Parkash failed to identify any of the other accused whereas Jai Rani identified Trilok Singh, who was accused No. 2.
On the basis of the information furnished by the accused the Investigating Officer and the police party led by him recovered some of the articles which formed the contents of the suit cases removed from the car of the victims.
They consisted of new suit length cloths, sarees, trousers, blouses, petti coats etc.
The Prosecution examined in all 22 witnesses in its endeavour to establish the guilt of the accused in relation to the the charges framed against them.
The learned Addi tional Sessions Judge after an elaborate and analytical discussion of the whole evidence recorded the conclusion that the participation of the respondent Uttam in the com mission of the crime was established beyond all doubt inas much as he had been identified by both Om Parkash (P.W. 5) and Jai Rani (P.W. 6), and the testimony given by these two witnesses narrating the details of the incident of robbery and assault was not in any manner shaken in cross examina tion and deserved to be accepted as wholly truthful.
The remaining three accused were given the benefit of doubt mainly on the ground that excepting the second accused who had been identified only by Jai Rani at the identification parade, the others were not identified either by Jai Rani or by Om Parkash and hence there was no satisfactory proof of their participation in the crime.
In the light of the afore said conclusion reached by him, the learned Additional Sessions Judge convicted the respondent Uttam under Section 395 I.P.C. and sentenced him to undergo rigorous imprison ment of four years.
The High Court by a judgment which we are constrained to characterise as most perfunctory has set aside the judgment of the learned Additional Sessions Judge in so far as he was convicted the respondent herein and acquitted him.
We regret to have to remark that the High Court has dealt with the case in a very superficial and casual manner and has not even taken to,trouble to discuss the evidence adduced in the case before it proceeded to interfere with the well consid ered judgment of the trial court.
Both Om Parkash (P.W. 5) and Jai Rani (P.W. 6) had clearly identified the respondent at the test identification parade as well as in the Court and they had 1069 clearly and unequivocally deposed that he was one of the assailants who took part in the robbery and assault.
Their testimony has been discussed at length by the learned Addi tional Sessions Judge and he has given sound and convincing reasons for accepting and acting upon the same.
The whole discussion of the case by the High Court is contained in one short paragraph of its judgment namely, paragraph 6.
It is not disclosed anywhere therein as to why the High Court considered that the testimony of these two witnesses who were the victims of the crime could not be accepted and why it could not form the foundation for the conviction of the respondent.
A case of highway robbery, such as this, should have been dealt with much more seriousness and care than has been bestowed on it by the High Court.
The approach of the High Court to the case and the conclusion recorded by it cannot but be characterised as manifestly illegal and per verse.
In the absence of any discussion of the evidence by the High Court, we have ourselves gone through the entire evi dence adduced in the case with the assistance of the Counsel appearing in both sides.
We are in complete agreement with the conclusion recorded by the learned Additional Sessions Judge that from the evidence of Om Parkash (P.W. 5) and Jai Rani (P.W. 6), the participation of the accused in the commission of the offence has been proved beyond all reason able doubt.
The respondent was, therefore, rightly convicted by the learned Additional Sessions Judge and the only mis take committed by the learned Additional Sessions Judge was in not in awarding a more severe sentence commensurate with the gravity of the offence.
In the result, we allow the appeal, set aside the judg ment Of the High Court and restore that of the learned Additional Sessions Judge convicting the respondent under Section 395 I.P.C. and sentencing him to undergo rigorous imprisonment of four years.
The Bail Bond of the respondent will stand cancelled.
He shall be taken into custody forth with to serve out the remaining portion of the sentence.
N.P.V. Appeal allowed.

summary:
The respondent.
along with three others, was tried for offences under sections 395,397 and 412 of the Indian Penal Code.
The prosecution alleged that the respondent had delib erately dashed his car against the car of P.W. 5 on the Delhi Jaipur Road, while the latter was traveling to Jaipur alongwith his wife, PW 6 and daughter.
Five persons, two or three of them armed with revolvers and others with daggers came out of the respondent 's car.
One of them gave a couple of knife blows in the chest of PW 5, and another.
who was armed with a pistol, fired shots in the air and scared away drivers of some trucks who were passing along that road and tried to come to the aid,of PW 5 who was crying out for help.
One of the assailants removed the ear rings, necklace and wrist watch from the person of PW 6.
and in that proc ess, one of her ear lobes was cut as under.
The wrist watch and purse of PW 5 and three attache cases on the luggage carrier of his car were also forcibly removed and taken away.
Before the culprits left the spot in their car with all the booty.
a shot was fired by one of them which hit PW 5 on the forehead.
PW 5 somehow managed to drive back his car to Gurgaon and narrated the whole incident to his part ner and thereafter he and his wife were medically examined and treated at Gurgaon Civil Hospital, for the various injuries that were found on them.
Thereafter an F.I.R. was lodged with the Gurgaon Police.
The accused were arrested after a fairly long delay and two test identification pa rades were held.
one separately for the respondent accused at his request and other for the remaining suspects.
The respondent was identified by the victims.
On the basis of the information furnished by the accused some of the arti cles of the victims were recovered.
1065 The trial court held that the charge against the re spondent under section 395 I.P.C. was proved beyond all reasonable doubt and convicted and sentenced him to undergo rigorous imprisonment for four years.
The other three ac cused were acquitted on the ground that their participation in the crime was not sufficiently proved and hence they were entitled to the benefit of doubt.
The High Court, however, allowed the appeal of the respondent by extending the benefit of doubt to him and set aside his conviction and sentence.
Allowing the State 's appeal by Special leave.
HELD: 1.
A case of highway robbery, such as this, should have been dealt with much more seriousness and care than has been bestowed on it by the High Court.
Its approach to the case and the conclusion recorded by it cannot but be cha racterised as manifestly illegal and perverse.
The trial court has rightly concluded that from the evidence of the victims the participation of the respondent in the commis sion of the offence had been proved beyond all doubt.
[1069B C] 2.1 The High Court, by a most perfunctory judgment, set aside the judgment of the trial court, insofar as the trial court had convicted the respondent herein, and acquitted him.
It has dealt with the case in a very superficial and casual manner and has not even taken care to discuss the evidence adduced in the case, before it proceeded to inter fere with the well considered judgment of the trial court.
[1068G H] 2.2.
The trial court after an elaborate and analytical discussion of the whole evidence recorded the conclusion that the participation of the respondent in the commission of the crime was established beyond all doubt inasmuch as he had been identified by the both the victims, and their testimony narrating the details of the incident of robbery and assault was not shaken in cross examination and deserved to be accepted as wholly truthful, [1068D E] 2.3 Both the victims, PW 5 and 6, had clearly identified the respondent at the test identification parade as well as in the court and they had clearly and unequivocally disposed that he was one of the assailants who took part in the robbery and assault.
The trial court has given sound and convincing reasons for accepting and acting upon their testimony.
The High Court has, however.
not discussed in its judgment as to why it considered that the testimony of the victims of the crime could not_be accepted and why it could not form the foundation for the conviction of the respond ent.
[1068H; 1069A B] 1066 3.
The judgment of the High Court is set aside and that of the trial court convicting the respondent under section 395 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment of four years is restored.
Necessity for awarding severe punishment in such cases of proven highway robbery stressed.
[1069F]


judgement:
vil Appeal Nos.
2050(N) of 1974 and 1026 (N) of 1975.
From the Judgment and order dated 10.10.1969 of the Calcutta High Court in Appeal from Original Decree No. 303 of 1961.
P.K. Chatterjee, and Rathindas for the Appellants in C.A. No. 2050 of 1974.
1113 S.C. Majumdar, P.B. Chatterjee, A.K. Sen and N.R. Choudhary for the Appellants in C.A. NO. 2026 of 1975.
P.K. Banerjee and N.R. Choudhary for the Respondents in C.A. No. 2050 of 1974.
Sukumar Basu for the ReSpondent in C.A. No. 1026 of 1975.
The Judgment of the Court was delivered.by SINGH, J.
These two appeals are directed against the judgment of the High Court of Calcutta dated 10.10.1969 awarding a sum of Rs.18,74,089.75 aS compensation to the claimants.
During the second World War the property in dispute which consisted of an area of 199.04 acres of land situate in village Brindabanpur, District Burdwan in West Bengal was requisitioned by the Collector for the purpose of cohstruc tion of a military aerodrome.
As there was extreme urgency, the authorities took possession of the property on 1, 10.1942 and to regularise the possession the Collector of District Burdwan, West Bengal issued order on 8.6.1943 under subrules (1) (2) and (5) of Rules 75A of the Defence of India Rules 1939 framed under the Defence of India Act 1939 requisitioning the property.
Nirode Kanta Sen the owner of the property, predecessor ininterest of the claimants sub mitted a claim petition to the Collector.
Burdwan, claiming a sum of Rs.1,83,432 as compensation for the property requi sitioned from him.
Later he made another petition claiming further compensation.
and the total claim raised by him amounted to Rs.2,40,720.
The Special Land Acquisition Col lector, Burdwan after making inquiry and local inspection, awarded a sum of Rs.11,878.50 as recurring compensation to the claimant for 1349 to 1359 B.S.i.e.
(1942 to 1952).
The claimant was not satisfied with the amount offered to him he applied for reference, at his instance District Judge, Burdwan was appointed Arbitrator to determine the compensa tion, Nirode Kanta Sen and the State both produced evidence before the Arbitrator.
It appears that Nirode Kanta Sen died, thereafter his two sons, namely, Mihar Kanta Sen and Nirmal Kanta Sen and his widow Smt.
Hiranmoyee Debi were brought on record.
The Arbitrator by his order dated Septem ber 10, 1950 awarded a sum of Rs.444,591 as compensation to the claimants.
The Union of India preferred appeal before the High Court against the Arbitrator 's award, the claimants also preferred cross objection to the appeal.
A Division Bench of the High Court of Calcutta by its order dated 1114 10.10.1969 dismissed the appeal preferred by the Union of India and allowed the claimants ' cross objection by enhanc ing the compensation to a sum of Rs. 18,74,089.75 for the period 1.10.1942 to 1.10.1969.
Aggrieved the Union of India has preferred this appeal (C.A. No. 2050 of 1974) and the claimants have also filed appeal before this Court by spe cial leave being (Civil Appeal No. 1026 of 1975).
Both the appeals were consolidated, heard and are being disposed of by this Judgment.
The requisitioned land was continued in the occupation of the State and it has not been acquired under the provi sions of the Land Acquisition Act, 1894.
The Defence of India Act 1939 and the Rules framed thereunder expired on September 30, 1946, but the requisition of the property continued under the provisions of the Requisition Land (Continuance of Powers) Act 1947.
Subsequently, the 1947 Act was replaced by the Requisitioning and Acquisition of Immov able Property Act, 1952 which continued the requisition of property, made before the commencement of the Act.
Initially the period of requisition was to expire after three years from the date of commencement of the 1952 Act but by subse quent amendments the period of requisition was extended.
The Parliament enacted the Requisitioning and Acquisition of Immovable Property (Amendment) Act 1975 fixing the maximum period for which property could be retained under requisi tion.
It is not necessary to refer to the provisions of this Act, suffice it to notice that the property in dispute which had been requisitioned in 1942 continued to be under requi sition during the relevant period of respect of which the dispute with regard to compensation is involved.
The total area of the requisitioned land was 199.04 acres, out of which an area of about 176.91 acres was full of jungle and forest containing various kinds of trees including Sal trees.
The remaining area was occupied by tank, homestead, road danga and about 50 bighas was culti vated area.
There was a building standing on the land, some quantity of extracted gravels and building material was stacked near the building.
In their statement of claim the claimants stated that they had Patni right in respect of 8 annas and 12 annas share in Mouza Brindabanpur, under a deed of lease in respect of Patni taluk which conferred right to excavate and prospect minerals including stone chips and clay and moorams.
The claimants stated that they had been extracting and selling minerals and Nirode Kanta Sen had built a homestead and also kutcheary on a portion of the land, and building being one storeyed three roomed bungalow made of brick walls and cemented floors.
It was further stated that Wirode Kanta Sen intended 1115 to build a farm house on the land and a factory for the purpose of developing the business of manufacture of bricks from the sub soil clay of very good quality available in the area in dispute.
They further asserted that the entire land had Sal trees which contained valuable timber and forest yielded fuel wood.
Nirode Kanta Sen used to sell sal, murgas as timber and also used to sell fuel wood as produce of the forest.
On these allegations compensation was claimed for cultivated land including land cultivated after reclamation, trees, timber wood and fuel wood, homestead including build ing and fixtures; furniture and other movables within the homestead area; and mooram and other underground deposits including coloured clay.
The claimants further claimed terminal compensation for the destruction of the property which included the homesteads, the building furniture, building material and the mooram which had been taken into possession by the military authorities and for the rest of the items they claimed recurring compensation.
For determin ing fair compensation the Arbitrator categorised the claims so raised under six different heads; 1) Homestead 2)Trees timber, wood and fuel 3) Culturable land including lands cultivated after reclamation 4) Furniture and other movables within the homestead area, 5) Morams excavated from the land and 6) other underground deposits like coloured clay etc.
Before the Arbitrator the State urged that the claimants were not entitled to any recurring compensation as their right, title and interest in the property vested in the State of West Bengal on 15.4.1955 under the provisions of the Bengal Estates Acquisition Act, 1953.
The Arbitrator rejected the State 's plea and determined compensation on the assumption that claimants continued to be owners of the property.
Terminal claim for the building, furniture etc.
was rejected by the Arbitrator on the ground that the claim ants were denied use of the bungalow, so he awarded as recurring compensation on rental basis.
The Arbitrator awarded compensation in respect of other items also, it is not necessary to enter into details, however, in all the Arbitrator awarded a sum of Rs.4,44,581 as compensation to the claimants.
In appeal High Court held that claimants were entitled to terminal compensation as well as to recurring 'compensa tion.
As regards terminal compensation it held that the claimants suffered total loss on account of the destruction of property which included bungalow (Rs.15,000) furniture in bungalow (Rs.500), building material stacked on the ground (Rs.14,500), Sal timber destroyed(Rs:l,60,000), moorams kept on surface (Rs.3,000) and fuel wood destroyed (Rs.7,300).
Thus in all a sum of Rs.2,00,000 was awarded as terminal compensation to the claimants in respect of the aforesaid items.
The 1116 High Court awarded interest on the aforesaid amount at the rate of 4.5 per cent per annum for 27 years with effect from October 1, 1942 to October 1, 1969.
While determining the recurring compensation the High Court held that the claim ants would have derived income from the forest and minerals to the extent of Rs.50,000 per year, In addition to that the High Court further held that the claimants were put to a loss of Rs.650 per annum on account of the requisition of the cultivable land and crop compensation tank and mango trees.
Thus in all the High Court held that the claimants were entitled to a sum of Rs.13,67,550 as recurring compen sation.
It further awarded interest at the rate of 4.5 per cent per annum on the aforesaid amount for a period of 27 years.
Thus in all the High Court awarded a sum of Rs. 18,74,089.75 as compensation to the claimants.
Learned counsel for the appellant urged that the High Court committed error in awarding recurring compensation to the claimants for the period beyond 15.4.1955 as the claim ants ceased to have any right, title or interest in the property in dispute, as the same vested in the State with effect from 15.4.1955 under the provisions of the West Bengal Estates Acquisition Act, 1953.
We find merit in the submission.
Agrarian reform was initiated in the State of West Bengal and with that end in view the West Bengal Es tates Acquisition Act, 1953 (hereinafter referred to as the 1953 Act) was enacted to provide for the acquisition of estates, rights of intermediaries therein and certain rights of raiyat and under raiyat in the land comprised in the estates.
Section 4 lays down that the State Government may by notification declare that with effect from the date mentioned in the notification, all estates and the rights of every intermediary in each such estate situated in any district or part of a district specified in the notifica tion, shall vest in the State free from all incumbrances.
Section 5 provides for publication of notification in the official gazette, in addition to its being published in the newspapers.
Section 5 provides that on publication of noti fication under Section 4 the estate and the rights of inter mediaries in the estate shall vest in the State free from all incumbrances, and all lands in any estate comprised in a forest together with all rights in the trees therein or to the produce thereof, held by an intermediary or any other person shall vest in the State.
Though Section 4(1) con ferred power on the State Government to issue notifications from time to time in respect of any district or part of a district but the legislative intent is evidenced by sub section (2) of Section 4 which ordained that the State shall issue notifications so as to ensure that the entire area to which the Act applies shall be notified, enabling the vest ing of the interest of all intermediaries in the State on or before the 1117 1st day of Baisakh of the Bengali year 1352 e.g. 15.4.1955.
The legislative mandate made it imperative to ensure that right, title and interest of all intermediaries in the State of West Bengal shall be acquired by 15.4.1955.
Intermediary as defined by Section 2(1) includes a proprietor, tenure holder, under tenure holder or any other intermediary above a Raiyat.
An intermediaries ' right, title and interest in the land stood acquired by the State on the issue of notification under section 4 of 1953 Act.
Thereaf ter no intermediary could claim any right, title and inter est in the property.
There is no dispute that Nirode kanta Sen the predecessor in interest of the claimants held a Patnidar interest ' in respect of the property in dispute as is evident from the sale deed dated 20.1.1925 executed, by Senode Behari Roy in favour of Nirode Kanta Sen exhibit 7(b) and sale deed dated 27.10.1921 executed by K.C. Dumaine in favour of Jogendra Kumar Sen (exhibit 7) who executed release deed in favour of Nirode Kanta Sen on 16.12.1927 (exhibit l(a)).
These documents evidenced transfer of Patnidar rights in the property in favour of Nirode Kanta Sen. Under the provisions of the Bengal Patni Regulations VIII of 18 19, holder of a patni deed enjoyed the right of the zamindar unless some limitation was expressly mentioned in the deed.
The interest of a Patnidar was capable of being transferred by sale in the same manner as any other real property.
A patni right holder is a proprietor therefore included within the meaning of intermediary under the Act.
Since Nirode Kanta Sen had patni rights in the property, he was an intermediary and his right, title and interest in the property vested in the S:ate with effect from 15.4.1955 and thereafter Nirode Kanta Sen and his heirs could not claim any right of interest in the property except that they were entitled to receive compensation for the property so acquired in accordance with the provisions of the 1953 Act.
The High Court refused to consider this question on the ground that copies of relevant notifications issued under Section 4 were not on record.
The State had filed copies of relevant notifications before the High Court as additional evidence but the High Court refused to accept the same.
The notifications issued are published in the Gazette, the High Court should have taken judicial notice of the same.
Even though the claimants ceased to have any right or title in the requisitioned property after 15.4.1955 the High Court proceeded to award compensation to the claimants on the assumption that they continued to hold right, title and interest in the property even after 15.4.1955, this was apparently in utter disregard of the legislative mandate contained in Section .4(2) of the 1953 Act.
1118 Learned counsel for the claimants contended that the provisions of the 1953 Act do not apply to the property in dispute which was under requisition in view of the second proviso to Section 3 of the Act.
This is a totally mis conceived submission.
Section 3 provided that the provisions of the Act shall have over riding effect notwithstanding anything to the contrary contained in any other law, con tract, usage or custom to the contrary.
There are two excep tions to this which is contained in the two proviso.
The first proviso lays down that the provisions of the Act shall not apply to any land held by a Corporation, while the second proviso lays down that the Act shall not affect any land possession of which may have been taken by the State Government before issue of notification under Section 4 of the Act e.g. 15.4.1955, in furtherance of any proposal for acquiring the land irrespective of the fact whether any formal proceedings for such acquisition were started or not before the commencement of the Act.
The second proviso is intended to protect the rights of those tenure holders whose land may have been the subject matter of acquisition pro ceedings under any law with a view to protect their right to get compensation.
Since the property in dispute was not under acquisition and the possession of the same had been taken by the State in requisition proceedings, the second proviso has no application.
Learned counsel for the claimants urged that under SeCtion 6 of the 1953 Act the claimants were entitled to retain an area of 75 acres of land with them and therefore they are entitled to recurring compensation with regard to that area even after 15th April 1955.
He placed reliance on the provisions of Section 6(1)(k) which provides for retain ing requisitioned land by intermediary.
Section 6 provides that notwithstanding anything contained in Sections 4 and 5, an intermediary shall be entitled to retain land with effect from the date of vesting, as specified in various sub clauses, which include; land comprised in homestead; land comprised in or appertaining to a building and structure owned by the intermediary; non agricultural land in interme diary 's khas possession not exceeding fifteen acres; agri cultural land in khas possession of the intermediary not exceeding twenty five acres in area, as may be chosen by him; tank fisheries; land comprised in tea gardens or or chards or land used for the purpose of livestock breeding, poultry farming or dairy; land comprised in mills, facto ries, or workshops.
Section 6(1)(k) entities an intermediary to retain so much of requisitioned land as the intermediary may be entitled to retain after taking into consideration may any other land which may be entitled to retain under other clauses of the Section.
These provisions confer right on an intermediary to 'retain land to the extent specified in 1119 the various sub clauses of Section 6(1) even though his right, title and interest in the estate may have vested in the State.
An intermediary is entitled to retain land, only if it falls within one of the various sub clauses of Section 6(1) of the Act.
The claimants ' contention that they are entitled to retain 75 acres of land is rounded on the provi sion of Section 6(1)(d) which relates to agricultural land in the khas possession of intermediary, under that provision an intermediary is entitled to retain twenty five acres of agricultural land which may be in his khas possession.
Since there are three claimants, they are claiming right to retain 75 acres of land.
It is noteworthy that Section 6(1)(d) relates to agricultural land in khas possession of interme diary and not to any other land including forest land.
There is no evidence on record to show that 75 acres of agricul tural land was in the khas possession of the claimants on the date of vesting.
There is further no evidence that the claimants did not possess any other agricultural land apart from that which is the subject matter of the requisition.
In the absence of any such evidence it is not possible to determine the question raised by the claimants in the present proceedings.
If the claimants were entitled to retain any part of the requisitioned land they should have taken proceedings before the appropriate authorities under the provisions of the 1953 Act.
This question cannot be raised for the first time before the Court.
Section 6(1)(k) merely provides that an intermediary is entitled to retain land which may be under requisition to the extent he is entitled to retain, under the various sub clauses of Section 6(1).
Therefore merely because the land is under requisition the claimants being intermediaries are not entitled to retain the same unless they are able to make out their case by leading cogent evidence to show that they were entitled to retain 75 acres of land or any other area under Section 6(1) of the Act.
In the absence of any evidence on record it is not possible to determine the question raised by the claimants in the present proceedings, their contention therefore must fail.
Another submission made for claimants was that the requisitioned land contained minerals, the claimants had been excavating moorams and coloured clay, they are there fore entitled to retain the entire land with them under Section 6 read with Section 23 of the Act.
Section 28 pro vides that so much of an area as was being used by an inter mediary as mine immediately before the date of vesting shall with effect from such date shall be deemed to have been leased by the State Government to such intermediary on such terms and conditions as may be determined by the State Government.
This provision confers right on an intermediary to retain that much of area which may be comprised in a mine provided the mine was being directly worked by him 1120 immediately before the date of vesting.
Before an intermedi ary can claim this right he must first establish that he was directly working mine immediately before the date of vest ing.
If this condition is not fulfilled the intermediary has no right to retain the land or to continue the mining opera tion.
If the mine was operated by a licensee or by some other person the intermediatry would not be entitled to the benefit of Section 28 of the Act.
In Tarkeshwar Sio Thakur Jiu vs Bar Dass Dey & Co. & Ors., this court held that an intermediary can claim benefit of Section 28 of the 1953 Act only if he was himself carrying on the mining operations directly and not through any licensee.
In the instant case there is no evidence on record to show that the claimants were carrying on any mining operations immediately before the date of vesting.
The only evidence which is available on record shows that in some area mooram had been excavated.
But there is no evidence to show as to whether the claimants had themselves excavated the Mooram directly or they had got the same excavated through some other agen cy.
Similarly there is no evidence on record to show that the coloured clay which is a mineral was being prospected or excavated by the claimants themselves directly.
There is further no evidence to show that the claimants were carrying on mining operations directly immediately before the date of vesting.
In this view that claimants are not entitled to any benefit under Section 28 of the Act.
Now reverting to the amount of compensation awarded to the claimants, we find that the High Court has awarded terminal compensation of Rs.2,00,000 to the claimants in respect of bungalow, furniture, factory material, building material, gravel stacked on the ground, sal timbers, on the premise that these were completely destroyed by the military authorities as a result of which the claimants suffered loss.
On the basis of the material available on record the High Court assessed the total loss suffered by the claimants in respect of the aforesaid items and in thereupon held that the claimants were entitled to terminal compensation of Rs.2.00,000.
Learned counsel for the appellant did not challenge the findings of the High Court in this respect, we accordingly uphold the award of Rs.2,00,000 as terminal compensation payable to the Claimants.
The High Court has awarded a sum of Rs.25,000 as recur ring annual compensation on rental basis for sal trees standing over an area of 150 acres of the requisitioned land.
There is no dispute that the sal trees were standing on the aforesaid land at the time of requisition.
The sal trees contain valuable timber its matured trees are sold at good 1121 price.
The High Court has assessed the annual rental value of the sal trees at the rate of Rs.25,000 per year falling to the share of the claimants and has awarded recurring compensation to the claimants on that basis.
We find no good reason to take a different view.
In fact the learned counsel for the appellant did not seriously challenge the finding of the High ' Court in this respect.
There is another item in respect of which the High Court has further awarded recur ring compensation in respect of 50 bighas of cultivable land and crop compensation for50 bighas, tank having an area of 3.96 acres and 22 mango trees.
The High Court has recorded finding that 50 bighas of cultivable land was being used for cultivation and there was another 50 bighas of dang land where paddy crop was being cultivated.
In addition to that there was a tank having an area of 3.96 acres.
The land contained 22 mango trees also.
The High Court has determined total compensation for the aforesaid items at the rate of Rs.650 per annum.
We find no infirmity in the High Court 's order warranting interference.
Thus the claimants are enti tled to recurring compensation of Rs.25,650 per year in respect of sal forest, agricultural land, tank and mango trees.
with effect from October, 1,1942 to April 15, 1955.
The High Court has awarded recurring annual compensation to the claimants for the underground deposits of Mooram and coloured Clay.
The claimants did not produce any evidence to show that Moorams and Coloured Clay was available in the entire area or in a particular area of the requisitioned land.
No evidence was produced to indicate the quality of Moorams and Coloured Clay or the actual loss which the claimants sustained.
In the absence of any evidence the High Court on conjuncture held that 50 cft of Mooram could be extracted in one acre and on that basis Mooram could be extracted over.
a period of 10 years from 160 acres.
On this assumption it held that the claimants could have exca vated 10,00,000 cft of Mooram per year and the same could be sold at the rate of Rs.1 per 100 cft.
On that basis of claimants could have derived income of Rs.10,000 each year.
The High Court then proceeded that land could be settled for Mooram extraction to a willing party at an annual rent payable to the claimants at the rate of Rs.5,000.
On these findings the High Court awarded a sum of Rs.5,000 as recur ring annual compensation to the claimants.
There is no evidence on record to show that Mooram was available over the entire area of 160 acres.
There is further no evidence to show that claimants had let out right to excavate Mooram to any one or that they had been deriving any recurring income each year.
In the absence of any such evidence.
no recurring compensation could be granted to the claimants.
Recurring compensation is granted to make good the loss which 1122 the owner may suffer.
If the owner fails to prove recurring annual loss.
he could not be entitled to recurring compensa tion for the requisitioned property.
The High Court commit ted error in awarding recurring compensation of Rs.5,000 per year for the Moorams.
The High Court has held that the Coloured Clay was available in the requisitioned land, which could be used for industrial purposes and for which Nirode Babu intended to set up a factory.
The High Court proceeded on the assumption that the claimants would have extracted at least 200 cft Coloured Clay per every 500 cft of excavation which would have been utilised for manufacturing bricks, mercilised tiles and potteries which would have brought net annual income to the claimants to the extent of Rs.20,000 per year.
The High Court had no evidence before it with regard either to the area or the quality, or the quantity of the coloured clay available in the requisitioned land.
The claimants led no evidence with regard to the loss of income which they may have suffered.
Learned counsel for the claimants failed to point out any evidence on record to support the findings of the High Court with regard to the coloured clay.
In this view, the High Court committed error in awarding a sum of Rs.20,000 per annum as recurring compensation for the co loured clay.
In their appeal the claimants have raised a grievance that the High Court has awarded interest only at the rate of Rs.4.1/2 per cent which is wholly illusory.
In their objec tion the claimants had raised a claim for interest at the rate of 6 per cent per annum.
Having regard to the facts and circumstances of the case we are of the opinion that the claimants are entitled to interest on the amount of compen sation payable to them at the rate of 6 per cent per annum, from the date of taking over possession 1.10.1942 till the date of payment.
For the reasons stated above we allow both the appeals partly and modify the order of the High Court to the extent that the claimants are entitled to a sum of Rs.2,00,000 as terminal compensation and also to a sum of Rs.25,650 as recurring compensation, in respect of the sal trees and agricultural land etc., per annum with effect from 1.10.1942 to 15.4.1955.
The claimants are also entitled to interest on the aforesaid amount at the rate of 6 per cent per annum from the date of requisition till the date of payment.
In the circumstances of the case parties shall bear their own costs.
A.P.J. Appeals partly allowed.

dataset_name: IN-Abs

summary:
During the Second WOrld War the property in dispute was requisitioned by the Collector for the purpose of construc tion of a military aerodrome.
As there was extreme urgency, the possession of the property was taken on 1 10 1942 and to regularise the possession the Collector issued an order on 8 6 1943 under sub rules (1), (2) and (5) of Rule 75A of the Defence of India Rules, 1939 framed under the Defence of India Act, 1939 requisitioning the property.
The owner of the property, predecessor in interest of the claimants, submitted claim petitions claiming a total sum of Rs.2,40,720 as compensation.
The Special Land Acquisition Collector awarded a sum Of Rs.11,878.50 as recurring compe nation for 1349 to 1359 B.S. i.e. (1942 to 1952).
The Dis trict Judge acted as Arbitrator to determine the compensa tion and he awarded a sum of Rs.4,44,691 as compensation, The Union of India preferred appeal and the claimants pre ferred cross objection to the appeal in the High Court against the Arbitrator 's award.
The Division Bench dismissed the appeal and allowed the cross objection by enhancing compensation to Rs.18,74,089.75 for the period 1 10 1942 to 1 10 1969.
In the appeal to this Court on behalf of the appellant Union it was contended that the High Court committed error in awarding recurring compensation to the claimants for the period beyond 15 4 1955 as the claimants ceased to have any right, title or interest in the property in dispute, as the same vested in the State with effect from 15 4 1955 under the provisions of the West Bengal Estates Acquisition Act, 1953.
1109 On behalf of the claimants respondents it contended: (i) that the provisions of the 19S3 Act do not apply to the property in dispute which was under requisition in view of the second proviso to section 3 of the Act; (ii) that under section 6 of the 19S3 Act the claimants were entitled to retain an area of 75 acres of land with them and, therefore, they are entitled to recurring compensation with regard to that area even after 15th April,1955 (iii) that the requisitioned land contained minerals, the claimants had been excavating moo rams and coloured clay, they are, therefore.
entitled to retain the entire land with them under section 6 read with section 28 of the Act and (iv) that they should get interest at the rate of 6% per annum.
Allowing the Appeals partly.
HELD: 1.
The claimants are entitled to a sum of Rs.2.00,000 as terminal compensation and also a sum of Rs.25,650 as recurring compensation.
in respect of the Sal trees and agricultural land etc. per annum with effect from 1 10 1942 to 15 4 1955.
The claimants are also entitled to interest on the aforesaid amount at the rate of 6% per annum from the date of requisition till the date of payment.
[1122G H] 2.
Agrarian reform was initiated in the State of West Bengal and with that end in view the West Bengal Estates Acquisition Act, 1953 was g.acted to provide for the acqui sition of estates.
rights of intermediaries theresa and certain rights of raiyat and under raiyat in the land com prised, the estates.
Though section 4(1) of the Act conferred power on the State Government to issue notifications from time to time in respect of any district or part of a dis trict but the legislative intent is evidenced by sub section
(2) of section 4 which ordained that the State shall issue notifica tions so as to ensure that the entire area to which the Act applies shall be notified.
enabling the vesting of the interest of all intermediaries in the State on or before the first day of Baisakh of the Bengali year 1362 e.g. 15 4 1955.
The legislative mandate made it imperative to ensure that right.
title and interest of all intermediaries in the State of West Bengal shall be acquired by 15 4 1955.
[1116D Es G H; 1117A] 3.
In the instant case.
since the predecessor in inter est of the claimants had patni rights in the property.
he was an intermediary as defined by section 2(1) of the Act and his right, title and interest in the property vested in the State with effect from 15 4 1955 and thereafter he and his heirs could not claim any right or interest in the property except that they were entitled to receive compensation for the property so acquired in accordance with the provisions of the 1953 Act.
[1117E F] 1110 4.
Even though the claimants ceased to have any right or title in the requisitioned property after 15 4 1955 the High Court proceeded to award compensation to the claimants on the assumption that they continued to hold right.
title and interest in the property even after 15 41955.
this was apparently in utter disregard of the legislative mandate contained in section 4(2)of the 1953 Act.
[1117G H] 5.
Section 3 provides that the provision Of the Act shall have over riding effect notwithstanding anything to the contrary contained in any other law contract usage or custom to the contrary.
There are two exceptions to this which are contained in the two provisos.
The first proviso lays down that the provisions of the Act shall not apply to any land held by a Corporation.
while the second proviso lays down that the Act shall not affect any land possession Of which may have been taken by the State Government before issue of notification Under section 4 of the Act e.g. 5 4 1955, in fur therance of any proposal for acquiring the land irrespective of the fact whether any formal proceedings for such acquisi tion were started or not before the Commencement of the Act.
The second proviso is intended to protect the rights of those tenure holders whose land may have been the subject matter of acquisition proceedings under any law with a view to protect their right to get compensation.
Since the property in dispute was not under acquisition and the pos session of the same had been taken by the State in requisi tion proceedings, the second proviso has no application, [1118B D] 6.
Sections 4 to 6 of the Act confer right on an inter mediary to retain land to the extent specified in the var ious sub clauses of section 6(1) even though his right.
title and interest in the estate may have vested in the state.
An intermediary is entitled to retain land.
only if it fails within one of the various sub clauses of section 6(1) of the Act.
The claimants ' contention that they are entitled to retain 75 acres of land is rounded on the provisions of section 6(1)(d) which relates to agricultural land in the khas possession of intermediary.
under that provision as intermediary is enti tled to retain 25 acres of agricultural land which may be in his khas possession.
Since there are three claimants, they are claiming rights to retain 75 acres of land.
It is note worthy that section 6(1)(d) relates to agricultural land in khas possession of intermediary and not to any other land includ ing forest land.
There is no evidence on record to show that 75 acres of agricultural land was in the khas possession of the claimants on the date of vesting.
There is further no evidence that the claimants did not possess any other agri cultural land apart from that which is the subject matter of the requisition.
In the absence of any such evidence it is not possible to determine the question raised by the claim 1111 ants in the present proceedings.
If the .claimants were entitled to retain any part of the requisitioned land they should have taken proceedings before the appropriate author ities under the provisions of the 1953 Act.
This question cannot be raised for the first time before this Court.
Section 6(1)(k) merely provides that an intermediary is entitled to retain land which may be under requisition to the extent he is entitled to retain, under the various sub clauses of section 6(1).
Therefore, merely because the land is under requisition the claimants being intermediaries are not entitled to retain the same unless they are able to make out their case by leading cogent evidence to show that they were entitled to retain 75 acres of land or any other area under s, 6(1) of the Act.
[1118H; 1119A F] 7(i) Section 28 provides that so much of an area as was being used by an intermediary as mine immediately before the date of vesting shall with effect from such date be deemed to have been leased by the State Government to such interme diary on such terms and conditions as may be determined by the State Government.
This provision confers right on an intermediary to retain that much of area which may be com prised in a mine provided the mine was being directly worked by him immediately before the date of vesting.
Before an intermediary can claim this right he must first establish that he was directly working mine immediately before the date of vesting.
If this condition is not fulfilled the intermediary has no right to retain the land or to continue the mining operation.
If the mine was operated by a licensee or by some other person the intermediary would not be enti tled to the benefit of section 28 of the Act.
[1119G H; 1120A B] Tarkeshwar Sio Thakur Jiu vs Bar Dass Dey & Co. & Ors.
, referred to.
7(ii) In the instant case, there is no evidence on record to show that the claimants were carrying on any mining operations immediately before the date of vesting.
The only evidence which is available on record shows that in some area mooram had been excavated, But there is no evi dence to show as to whether the claimants had themselves excavated the Mooram directly or they had got the same excavated through some other agency.
Similary there is no evidence on record to show that the coloured clay which is a mineral was being prospected or excavated by the claimants themselves directly.
There is further no evidence to show that the claimants were carrying on mining operations di rectly immediately before the date of vesting.
In this view that claimants are not entitled to any benefit under section 28 of the Act.
[1120C E] 1112 8.
The finding of the High Court with regard to the award of Rs.2,00,000 as terminal compensation payable to the claimants is upheld [1120G] 9.
The High Court has recorded finding that 50 bighas of cultivable land was being used for cultivation and there was another 50 bighas of dang land where paddy crop was being cultivated.
In addition to that then was a tank having an area of 3.96 acres.
The land contained 22 mango trees also.
The High Court has determined total compensation for the aforesaid items at the rate of Rs.650 per annum.
There is no infirmity in the High Court 's Order.
Thus the claimants are entitled to recurring compensation of Rs.25,650 per acre in respect of Sal forest, agricultural land, tank and mango trees.
with effect from October, 1, 1942 to April 15. 1955.
[1121B D] 10(i) Recurring compensation i6 granted to make good the loss which the owner may suffer.
If the owner fails to prove recurring annual loss.
he could not he entitled to recurring compensation for the requisitioned property.
[112 1H; 1122A] 10(ii).
The High Court has awarded recurring annual compensation to the claimants for the underground deposits of mooram and coloured clay.
The claimants did not produce any evidence to show that moorams and coloured clay was available in the entire area or in a particular area of the requisitioned land.
No evidence was produced to indicate the quality of moorams and coloured clay or the actual loss which the claimants sustained.
In the absence of any such evidence, no recurring compensation could be granted to the claimants.
The High Court committed error in awarding annual recurring compensation of Rs.5,000 for the moorams and Rs.20,000 for the coloured clay.
[112 1D E; 1122D] 11.
Having regard to the facts and circumstances of the case it is held that the claimants are entitled to interest on the amount of compensation payable to them at the rate of 6% per annum from the date of taking over possession 1 10 1942 till the date of payment.
[1122G]


judgement:
ivil Appeal No. 1196 of 2973.
From the Judgment and Decree dated 20.9.1971 of the Madras High Court in Appeal No. 425 of 1964.
T.S. Krishnamoorthy Iyer.
K. Ram Kumar and K. Ram for the Appellant.
S.T. Desai, K. Ramamurthy and A.T.M. Sampath for Re spondents No. 1 and 2.
Rajendra Chowdhary for the Respondent No. 3 to 5.
The Judgment of he Court was delivered by THAKKAR.
J. Under the same law1 in an identical factsit uation, a Hindu widow who has inherited property in Orissa or Andhra Pradesh would be a 'limited owner ' and would not become an 'absolute owner ' thereof whereas if she has inher ited property in Madras, Punjab, Bombay or Gujarat she would become an 'absolute owner '.
That is to say, in a situation where a Hindu widow regains possession of a property (in which she had a limited ownership) subsequent to the com mencement of the Act2 upon the retransfer of the very same property to her by the transferee in whose favour she had transferred it prior to the commencement, of the Act.
This incongruous situation has arisen because of an interpreta tion and application of Section 14(1)3 of the Hindu Succes sion Act (Act) in the context of the 1.
Section 14(1) of of 1956 2.
The Act came into force on June 17, 1956.
.lm 3.
"Section 14(1): Any property possessed by a female Hindu.
whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof, and not as a limited owner.
Explanation In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
" 1074 aforesaid fact situation the High Courts of Orissa4 and Andhra Pradesh5 have proclaimed that she would be only a 'limited owner ' of such property on such retransfer whereas the High Courts of Madras6, punjab7 Bombay8 and Gujarat9 have taken a contrary view and have pronounced that she would become an 'absolute owner ' of such a property in the aforesaid situation.
We have therefore to undertake this exercise to remove the unesthetic wrinkles from the face of law to ensure that a Hindu widow has the same rights under the same law regardless of the fact as to whether her property is situated within the jurisdiction of one High Court or the other.
The appellant who unsuccessfully canvassed before the High Court of Madras that the view propounded by the Orissa and Andhra Pradesh High Courts deserved to be preferred to the view taken by the other four High Courts, has approached this Court by way of the present appeal by a certificate granted under Article 133(l)(a) of the Constitution of India that the matter involves a substantial question of law.
The typical facts in the backdrop of which the problem has to be viewed are : (1) A Hindu female acquired a property, say by reason of the death of her husband, before the commencement of the Act (i.e. before June 17, 1956).
(2) What she acquired was a widow 's estate as understood in shastric or traditional Hindu Law.
(3) She lost the possession of the property on account of a transaction whereby she trans ferred the property in favour of an alienee by a registered document of 'sale ' or 'gift '.
Ganesh Mahanta vs Sukria Rewa (AIR 1963 Orissa 167).
Medicherla Venkataratnam vs Siddani Palamma, (1970 II Andhra Weekly Reporter 264).
Chinnakolandai Goundan vs Thanji Gounder, (ILR 1966 I Madras 326).
Teia Singh vs Jagat Singh, (AIR 1964 Punjab 403).
Ramgowda Aunagowda vs Bhausaheb, (ILR 9.
Champa vs Chandrakant, (AIR 1973 Gujarat 227).
1075 (4) The property in question was retransferred to her by the said alienee 'after ' the enforcement of the Act by a registered document thus restoring to the widow the interest (such as it was) which she had parted with earlier by re versing the original transaction.
It is in this factual background that the question will have to be examined as to whether upon the reconveyance of the very property which she had alienated after enforcement of the Act, she would become a full owner in respect of such a property by virtue 'of Section 14(1) of the (Act).
Be it realized that the law has been set tled by this Court that the limited estate or limited owner ship of a Hindu female would enlarge into an absolute estate or full ownership of the property in question in the follow ing factsituation: 1.
Where she acquired the limited estate in the property before or after the commencement of the Act provided she was in possession of the property at the time of the coming into force of the Act on June 17, 1956.
Even if the property in question was possessed by her in lieu of her right to maintenance as against the estate of her deceased husband or the joint family property, she would be entitled to become a full or absolute owner having regard to the fact that the origin of her right was traceable to the right against her husband 's estate, The problem which has arisen in the present appeal is in the context of a fact situation where while the widow ac quired a limited estate from her husband she was not in possession on the date of the enforcement of the Act viz. June 17, 1956, But the possession was restored to her upon the original alienee reconveying the property to her.
On an analysis of Section 14(1) of the of 1956, it is evident that the Legislature has abol ished the concept of limited ownership in respect of a Hindu female and has enacted that any property possessed by her would thereafter be held by her as a full owner.
Section 14(1) would come into operation if the property at the point of time when she has an occasion to claim or assert a title thereto.
Or, in other words, at the point of time when her right to the said property is called into question.
The legal effect of Section 14(1) 1076 would be that after the coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner.
(we are for the moment not concerned with the fact that sub section (2) of section 14 which provides that Section 14(1) will not prevent creating a restricted estate in favour of a Hindu female either by gift or will or any instrument or decree of a Civil Court or award provided the very document creating title unto her confers a restricted estate on her).
There is nothing in Section 14 which supports the proposition that a Hindu female should be in actual physical possession or in con structive possession of any property on the date of the coming into operation of the Act.
The expression 'possess , ' has been used in the sense of having a right to the property or control over the property.
The expression 'any property possessed by Hindu female whether acquired before or after the commencement of the Act ' on an analysis yields to the following interpretation: .15 (1) Any property possessed by a Hindu female acquired before the commencement of the Act will be held by her as a full owner thereof and not as a limited owner.
(2) Any property possessed by a Hindu female acquired after the commencement of the Act Will be held as a full owner thereof and not as a limited owner.
Since the Act in terms applies even to properties possessed by a Hindu female which are acquired 'after ' the commence ment of the Act, it is futile to contend that the Hindu female shall be in 'possession ' of the property 'before ' the commencement of the Act.
If the property itself is acquired 'after ' the commencement of the Act, there could be no question of the property being either in physical or con structive possession of the Hindu female 'before ' the coming into operation of the Act.
There is, therefore, no escape from the conclusion that possession, physical or construc tive or in a legal sense, on the date of the coming into operation of the Act is not the sine qua non for the acqui sition of full ownership in property.
In fact, the intention of the Legislature was to do away with the concept of limit ed ownership in respect of the property owned by a Hindu female altogether.
Section 4 of the Act (it needs to be emphasized) provides that any text, rule or interpretation of Hindu Law or custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provi sion is made in the Act.
The legislative intent is there fore, abundantly loud and clear.
1077 To erase the injustice and remove the legal shackles by abolishing the concept of limited estate, or the women 's or widow 's estate once and for all.
To obviate hair splitting, the Legislature has made it abundantly clear that whatever be the property possessed by a Hindu female, it will be of absolute ownership and not of limited ownership notwith standing the position obtaining under the traditional Hindu law.
Once it is shown that at the point of time when the question regarding title to property held by a Hindu female arises, she was 'possessed ' of the property on that date, in the eye of law, the property held by her would be held by her as 'full owner ' and not as 'limited owner '.
In other words, all that has to be shown by her is that she had acquired the property and that she was 'possessed ' of the property at the point of time when her title was called into question.
When she bought the property from the alienee to whom she had sold the property prior to the enforcement of the Act, she 'acquired ' the property within the meaning of the explanation to Section 14(1) of the Act.
The right that the original alienee had to hold the property as owner (subject to his right being questioned by the reversioner on the death of the female Hindu from whom he had purchased the property) was restored to her when she got back the right that she had parted with.
Whatever she had lost 'earlier ', was 'now ' regained by her by virtue of the transaction.
The status quo ante was restored in respect of her interest in the said property.
In the eye of law, therefore, the trans action by which the vendee of the Hindu female acquired an interest in the said property was 'reversed ' and the Hindu female was restored to the position prevailing before the transaction took place.
In other words, in the eye of law the transaction stood obliterated or effaced.
What was 'done ' by virtue of the document executed in favour of the transferee was 'undone '.
Such would be the consequence of a retransfer by the alienee in favour of a Hindu female from whom he had acquired an interest in the property in ques tion.
Thus on the date on which her right to the property was called into question, she was 'possessed ' of the proper ty which she had inherited from her husband she having by then re acquired and regained what she had lost.
And by virtue of the operation of Section 14(1) of the Act the limitation which previously inhered in respect of the property disappeared upon the coming into operation of the Act.
It is no longer open to anyone now to contend that she had only a 'limited ' ownership in the said property and not a 'full ' ownership, the concept of limited ownership having been abolished altogether, with effect from the coming into operation of the Act.
Whether a challenge was made during her lifetime or it was made 1078 after her death.
if the question arose as to what was the nature of interest in the property held by the concerned Hindu female after the reversal of the transaction the answer would be that she had a 'full ' ownership and not a 'limited ' ownership.
It would have been a different matter if the transferee from the concerned Hindu female had trans ferred his right, title and interest in the property to a third person instead of transferring it back to her.
In that event the principle that the transferor cannot transmit a better title or a title higher than that possessed by the transferor at the given time would come into play.
Not otherwise.
When the transaction was reversed and what be longed to her was retransmitted to her, what the concerned Hindu female acquired was a right which she herself once possessed namely, a limited ownership (as it was known prior to the coming into force of the Act) which immediately matures into or enlarges into a full ownership in view of Section 14(1) of the Act on the enforcement of the Act.
The resultant position on the reversal of the transaction would be that the right, title and interest that the alienee had in the property which was under 'eclipse ' during the sub sistence of the transaction had reemerged on the disappear ance of the eclipse.
In other words, the right which was under slumber came to be awakened as soon as the sleep induced by the transaction came to an end.
By the reversal of the transaction no right of the reversioner was affected, for he had merely a spes successions in the property and nothing more.
His possible chance of succeeding upon the death of the Hindu female disappeared from the horizon as soon as what she had temporarily parted with was restored to her.
The proponents of the view canvassed by the appellant placed strong reliance on the decision rendered by a learned Single Judge of the Orissa High Court in Ganesh Mahanta vs Sukria Bewa, A.I.R. 1963 Orissa 167 and the decision of the Andhra Pradesh High Court in Medicherla Venkataratnam vs Siddani Palamma and Ors., A.W.R. 1970(2) 264 wherein the Andhra Pradesh High Court has concurred with the view of the Orissa High Court, The basis of the reasoning is reflected in the following passage from Ganesh Mahanta 's case: "Section 14(1) does not purport to enlarge the right, title or interest of the alienee from widow with regard to the transfers effected prior to the commencement of the Act.
A donee from the widow prior to the commencement of the Act acquires only a widow 's estate in the gifted property and even if the donee retrans fers the property in favour of the widow after the commencement of the Act, the widow 1079 would acquire only a limited interest and not an absolute interest in the property as the donee cannot transmit any title higher than what he himself had.
" It appears that the Orissa and the Andhra Pradesh High Courts have been carried away by the argument that the donee or the transferee who retransfers the property to the widow cannot transmit a title higher than the title that they themselves had in the property.
In substance, the argument is that as the transferee or the donee had only a limited interest, what he can transmit to the widow is a limited interest.
This argument postulates that Section 14(1) of the Act does not come into play in the case of a retransfer (by the donee or the transferee as the case may be), to the widow subsequent to the commencement of the Act.
There is a basic fallacy in proceeding on the assumption that Section 14(1) has no impact or that the provision has no role to play in case of such a retransfer.
This line of reasoning overlooks the fact that upon retransfer to the widow, the original transaction is obliterated and what transpired by virtue of the consequence of the original transfer stands reversed.
The resultant position is that the widow is re stored to the original position.
Section 14(1) would not be attracted if the widow was not possessed of the property after the coming into force of the Act.
But in view of the reversal of the transaction, the widow becomes possessed of the property which she had possessed prior to the transfer to the original alienee or the donee.
And Section 14(1) straightaway comes into play.
By virtue of the reversal of the original transaction, her rights would have to be ascer tained as if she became possessed of the property for the first time, after the commencement of the Act.
It is now well settled that even if the widow has acquired the inter est in the property and is possessed of the property after the commencement of the Act, her limited right would ripen or mature into an absolute interest or full ownership.
The question that has to be asked is as to whether the widow became possessed of the property by virtue of the acquisi tion of interest subsequent to the operation of the Act and whether such interest was a limited interest.
The whole purpose of Section 14(1) is to make a widow who has a limit ed interest a full owner in respect of the property in question regardless of whether the acquisition was prior to or subsequent to the commencement of the Act.
On the date on which the retransfer took place, she became possessed of the property.
She became possessed thereof subsequent to the commencement of the Act.
In the result her limited interest therein would enlarge into an absolute interest, for, after the commencement of the Act any property possessed of and held by a widow becomes a property in which she has absolute interest 1080 and not a limited interest, the concept of limited interest having been abolished by Section 14(1) with effect from the commencement of the Act.
The Orissa High Court and the Andhra Pradesh High Court have fallen in error in testing the matter from the stand point of the alienee or the donee who retransfers the property.
The High Court posed the question as to whether they would be entitled to full owner ship in view of Section 14(1), instead of posing the ques tion as to whether the widow who becomes possessed of the property after the commencement of the Act would be entitled to claim that her limited interest had enlarged into an absolute interest.
Of course, Section 14(1) is not intended to benefit the alienee or the donee, but is intended and designed to benefit the widow.
But the question has to be examined from the perspective of the widow who becomes possessed of the property by virtue of the acquisition pursuant to the retransfer.
The Andhra Pradesh High Court has also fallen in error in accepting the fallacious argu ment that the widow would be in the position of a stranger to whom the property was reconveyed or retransferred.
This fallacy is reflected in the following passage: " .
Therefore reconveyance will not revive her original right in the property and she will be holding the estate reconveyed just like any other stranger alienee, for the lifetime of the alienor widow, though she happens to be that widow, and there can be no question of one alienation cancelling the other and the status quo ante, the widow 's alienation being restored.
" The case of the widow who had temporarily lost the right in the property by virtue of the transfer in favour of the alienee or the donee can not be equated with that of a stranger by forgetting the realities of the situation.
Surely, the Act was intended to benefit her.
And when the widow becomes possessed of the property, having regained precisely that interest which she had temporarily lost during the duration of the eclipse, Section 14(1) would come to her rescue which would not be the matter in the case of a stranger who cannot invoke Section 14(1).
A further error was committed in proceeding on the mistaken assumption that the decision in Kotturuswamy vs Veeravva, A.I.R. 1959 S.C. 577 supported the point of view which found favour with the Orissa and the Andhra Pradesh High Courts.
In Kotturuswamy 's case the alienation had taken place before the commencement of the Act and the widow had 'trespassed ' on the property and had obtained physical possession as a trespasser without any title.
It was not a case where the widow had regained possession lawfully and become entitled to claim 1081 the benefit of Section 14(1) having become possessed of the property by way of a lawful acquisition subsequent to the commencement of the Act.
It was overlooked that Section 14(1) in terms used the expression "whether acquired before or after the commencement of the Act".
If the legislature had not contemplated a widow becoming possessed of a proper ty by virtue of an acquisition after the commencement of the Act, the aforesaid expression would not have been used by the legislature.
The Orissa and the Andhra Pradesh High Courts have failed to give effect to these crucial words and have also failed to apply the principle in Kotturuswamy 's case properly, wherein the widow obtained possession as a trespasser.
In fact the expression "possessed of" pertains to the acquisition of a right or interest in the property and not to physical possession acquired by force or without any legal right.
The ratio in Kotturuswami 's case was there fore misunderstood and misconceived by the Orissa and the Andhra Pradesh High Courts.
We agree with the reasoning of the Madras High Court in Chinnakolandai vs Thanji, A.I.R. 1965 Mad. 497, wherein Ramamurthi, J. has made the point in a very lucid manner in the following passage: "With respect, I am unable to agree with this view, as the entire reasoning is based upon the view that there is no difference between a reconveyance in favour of the widow herself and alienation in favour of the stranger.
In my opinion, there is all the difference be tween a case of annulment of a conveyance by consent of both the parties and a case of a subsequent alienation by the alienee in favour of a stranger.
In the former case the effect of the alienation is completely wiped out and the original position is restored.
This dis tinction has not been noticed in the decision of the Orissa High Court.
The acceptance of the contention Urged by learned counsel for the appellant would lead to startling results.
Take for instance an un authorised alienation by a guardian.
If some cloud is cast on the validity of the alienation, and if the alie nee, not willing to take any risk till the attainment of majority by the minor, conveys back the property to the guardian, it would not be open to the guardian to contend that he had acquired the voidable title of the alie nee.
In other words, he cannot contend as against the quondam minor that the income from the property would be his, and that till the minor takes proceedings for setting aside the alienation the guardian should be deemed to have acquired the right, title and interest of the alienee.
Such a 1082 contention on the face of it is untenable.
The instance of an alienation by a trustee or an executor may also be considered.
If after the alienation by the trustee or executor the beneficiary raises some objection about, the validity of the alienation whether well rounded or ill turned and if the alienee who is not prepared to take any risk conveys back the property to the trustee or the execu tor as the case may be it cannot possibly be contended that the trustee or the executor got back the property in any right or character other than in which it was originally alienat ed.
As a result of the reconveyance the property would form part of the trust estate.
In all these cases the alienor suffers under a legal disability from holding the property in any other capacity.
It is needless to multiply instances.
I am therefore clearly of the opinion that there is nothing in law to pre vent an alienation being completely nullified as if it never took effect provided the alien or and the alienee agree to such a course.
The position is a fortiori where the title con veyed to the alienee is a voidable one.
It cannot be disputed that when the reversioner files the suit it is open to the alienee to submit to a decree.
After such a declaratory decree is passed, there is nothing in Hindu law which compels or obliges the alienee to retain and keep the property himself and hand it over to the reversioner.
It is certainly open to him, to respect the decree and convey back the property to the widow even before her death.
It is obvious that what the alienee can do after the termination of the suit can equally be done during its pendency.
Surely the alienee is not a trustee for the rever sioner to keep the property in trust and deliver the property on the death of the widow.
" Our own reasons we have already articulated.
The reason ing unfolded in the foregoing passage, we fully and whole heartedly endorse.
In the result we uphold the view that in such circumstances the concerned Hindu woman is entitled to become an absolute owner of the property in question.
The appeal fails and is dismissed.
No costs.
P.S.S. Appeal dismissed.

summary:
Section 14(1) of the provides that any property possessed by a female Hindu, whether enquired before or after the commencement of the Act shall be held by her as full owner thereof and not as a limited owner.
The Explanation to the sub section included property acquired by a female Hindu by purchase within the expression 'property. ' The Hindu widow, in the instant case, who had acquired a limited estate from her husband by reason of his death was not in possession on the date of the enforcement of the Act, she having transferred the property in favour of an alienee, But, later the possession was restored to her upon the original alienee reconveying the property to her, reversing the transaction.
Her right to the said property was assailed by the appellant before the Madras High Court and a question arose as to whether upon the reconveyance of the very property.
which she had alienated, after the enforcement of the Act she would become full owner in respect of such a property by virtue of section 14(1) of the Act.
The High Court following its earlier view in Chinnako landai Goundan vs Thanji Gounder, (ILR 1966 I Madras 326) and that of Punjab High Court in Teja Singh vs Jagat Singh, (AIR 1964 Punjab 403), Bombay High Court in Ramgowda Auna gowda vs Bhausaheb, (ILR and Gujarat High Court in Champa vs Chandrakant (AIR 1973 Gujarat 227), held that she would become an absolute owner of such a property in the aforesaid situation.
In this appeal by certificate.
it was contended for the appellant.
relying on the view pronounced by the Orissa High Court in Ganesh Mahanta vs Sukria Bewa, (AIR 1963 Orissa 167) and Andhra Pradesh High Court in Medicherla Venkatarat nam vs Siddani Palamma, 1970 II Andhra Weekly Reporter 264), that section 14(1) of the Act does not come 1071 into play in the case of a retransfer of the property to the widow subsequent to the commencement of the Act, as the transferee or the donee, who had only a limited interest.
cannot transfer a title higher than the title that they themselves had in the property.
Dismissing the appeal, the Court, HELD: 1.
A Hindu woman is entitled to become an absolute owner of the property which she had alienated, upon its reconveyance to her by the transferee after the enforcement of the by virtue ors.
14(1).
[1082G; 1075B] 2.1 The whole purpose of section 14(1) is to make a widow who has a limited interest a full owner in respect of the property in question regardless of whether the acquisition was prior to or subsequent to the commencement of the Act.
It comes into operation at the point of time when the right of the Hindu widow to the property is called into question.
All that has to be shown by her then is that she had ac quired the property and that she was possessed of the property.
Once it is shown by her that she was possessed of the property on that date in the eyes of law the property held by her would be held by her as "full owner" and not as limited owner.
[1079G; 1075GH; 1077BC] 2.2 Possession, physical or constructive or in legal sense, on the date of coming into operation of the Act is not the sine qua non for the acquisition of full ownership in property by the Hindu female.
The expression "possessed of" used in section 14(1) pertains to the acquisition of a right or interest in the property and not to physical possession acquired by force or without any legal right.
The expression "whether acquired before or after the commencement of the Act" used in section 14(1) makes it evident that any property possessed by a Hindu female whether acquired before or after the commencement of the Act, would be held by her as a full owner thereof and not as a limited owner.
If the legislature had not contemplated a Hindu widow becoming possessed of a property by virtue of an acquisition after the commencement of the Act the aforesaid expression would not have been used.
[1076FG; 1081C; 1076CD; 1081AB] 2.3 When the Hindu female in the instant case bought the property from the alienee to whom she had sold it prior to the enforcement of the Act, she had acquired the property within the meaning of the explanation to section 14(1) of the Act.
The transaction by which the vendee of the Hindu female had acquired an interest in the said property was reversed and she was restored to the position prevailing before the 1072 transaction took place.
In the eyes of law the transaction stood obliterated or effaced.
Thus, on the date on which her right to the property was called into question, she was possessed of the property which she had inherited from her husband, she having by then reacquired and regained what she had lost, and her limited right had natured into a full ownership in view of section 14(1) of the Act.
[1077C, EF; 1078C] 3.
By the reversal of the transaction no right of the reversioner was affected, for he had merely a spes succes sions in the property and nothing more.
His possible chance of succeeding upon the death of the Hindu female disappeared from the horizon as soon as what she had temporarily parted with was restored to her.
Therefore, whether a challenge was made during her life time or it was made after her death, if the question arose as to what was the nature of interest in the property held by the concerned Hindu female after the reversal of the transaction the answer would be that she had a 'full ownership ' and not a 'limited ownership '.
[1078DE; 1077H IO78A] 4.
If the transferee from the concerned Hindu female had transferred his right, title and interest in the property to a third person instead of transferring it back to her, the principle that the transferor cannot transmit a better title or a title higher than that possessed by him at the given time would have come into play.
Not otherwise.
The transac tion having been reversed the Hindu widow became re pos sessed of the property which she had possessed prior to the transfer to the original alienee or the donee and her right straightaway matured into full ownership by virtue of section 14(1).
[1078B; 1079DE] 5.
The case of the widow who had temporarily lost the right in the property by virtue of the transfer in favour of the alienee or the donee cannot be equated with that of a stranger.
The Act is intended to benefit her.
And when she becomes possessed of the property, having regained precisely that interest which she had temporarily lost during the duration of the eclipse, section 14(1) would come to her rescue which would not be the matter in the case of a stranger who cannot invoke section 14(1).
[1080F] Kotturuswamy vs Veeravva, (AIR distinguished.
Chinnakolandai Goundan vs Thanji Gounder, (ILR 1966 I Madras 326); Teja Singh vs Jagat Singh, (AIR 1964 Punjab 403); Ramgowda Aunagowda vs Bhausaheb, (ILR and Champa vs Chandrakant, (AIR 1973 Gujarat 227), approved.
1073 Ganesh Mahanta vs Sukria Bewa, (AIR 1963 Orissa 167) and Medicherla Venkataramam vs Siddani palamma, (1970 II Andhra Weekly Reporter 264), overruled.