judgement:
iminal Appeal No. 50 of 1968.
Appeal by special leave from the judgment and order dated August 7, 1967 of the Judicial Commissioner Court, Goa, Daman ,and Diu in Criminal Revision Petition in No. 55 of 1966.
Edward Gardner, O.C., A. Bruto Da Costa, M. Bruto Da Costa, P. C. Bhartari, A. K. Varma and J. B. Dadachanji, for the appellant.
Niren De, Attorney General, G. R. Rajagopaul, J. M. Mukhi and R. H. Dhebar, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
The appellant (Rev. Father Monteiro) is a resident of Goa.
After the annexation of Goa by India, he had the choice of becoming an Indian national or retaining Portuguese nationality.
He choose the latter and was registered as a foreigner.
He also obtained a temporary residential permit which allowed him to stay on in India till November 13, 1964.
The period of stay expired and he did not ask for its extension or renewal.
He was ordered to leave India by the Lt. Governor of Goa.
The Lt. Governor is empowered by a notification of the President of India issued under article 239 of the Constitution to discharge the functions of the Central Government and his order 91 has the same force and validity as if made by the Central Government.
Rev. Father Monteiro disobeyed the order, and in consequence was prosecuted under section 14 read with section 3 (2) (c) of the .
He was convicted and sentenced to 30 days ' simple imprisonment and a fine of Rs. 50/ (or 5 days ' further simple imprisonment).
He appealed unsuccessfully to the Court of Session and his revision application to the Court of the judicial Commissioner, Goa also failed.
He now appeals by special leave of this Court against the order of the Judicial Commissioner, Goa dated August 7, 1967.
The defence of Rev. Father Monteiro was that he was pro tected by the , that the order of the Lt. Governor for his deportation was ultra vires the Act and that he had committed no offence.
The Judicial Commissioner and the two courts below have held, for different reasons, that the Geneva Conventions ceased to apply after Goa became a part of India and that the Municipal Courts in India can give him no redress against an Act of State.
In the appeal before us Mr. Edward Gardner Q.C. appeared for Rev. Father Monteiro with the leave of this Court.
To understand the case, a brief history of the annexation of Goa and what happened thereafter is necessary.
Goa was a Portuguese colony for about 450 years, having been seized by force of arms.
On December 19, 1961 Goa was occupied by the Indian Armed Forces following a short military action.
It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India.
Under the Ordinance all authorities were to continue performing their functions and all laws (with such adaptations as were necessary) were to continue in force and power was conferred on the Central Government to extend to Goa other laws in force in India.
The Ordinance was later replaced by an Act of Parliament bearing the same title and numbered as Act 1 of 1962.
It was enacted on March 27, 1962 and came into force from March 5, 1962.
It re enacted the provisions of the Ordinance and in addition gave representation to Goa in Parliament amending for the purpose the Representation of the People Act.
The same day (March 27, 1962), the Constitution (Twelfth Amendment) Act, 1962 was enacted and was deemed to have come into force on December 20, 1961.
By this amendment Goa was included in Union Territories and a reference to Goa was inserted in article 240 of the Constitution.
Many Acts it,.
force in India were then extended to Goa and many Regulations and Orders were promulgated.
Among the Acts so extended were the of 1955, the and the .
92 The Central Government also promulgated under section 7 of the , the Goa, Daman and Diu (Citizenship) Order 1962 and as it directly concerns the present matter we may re produce the second paragraph of the Order (in so far as it is material to our purpose) here : "2.
Every person who or either of whose parents or any of whose grand parents was born before twentieth day of December, 1961, in the territories now comprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day : Provided that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official Gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of De december, 1961.
Provided further. . . " Pursuant to this Order, on April 27, 1962, Rev. Father Monteiro made his declaration of Portuguese nationality and on August 14, 1964 applied for a residential permit.
On his failure to apply for a renewal of the permit the order of the Lt. Governor was passed on June 19, 1965.
Prosecution followed the disobedience of the order.
At the outset it may be stated that Mr. Gardner concedes that he does, not question the legality of the military action or the annexation.
In fact, he is quite clear that we may consider the annexation to be legal.
His contention, in brief, is that the order of the Lt. Governor is tantamount to deportation of Rev. Father Monteiro and the gives protection against such deportation during occupation which has not validly come to an end, and, therefore, no offence was committed by him.
The argument overlooks one cardinal principle of Inter national Law and it is this Rev. Father Monteiro by his declaration retained his Portuguese nationality.
His sojourn in India was subject to such laws as existed in India in general and in Goa in particular.
It cannot be doubted that the reception and residence of an alien is a matter of discretion and every State has, by reason ,of its own territorial supremacy, not only the legal right but also 93 the competence to exclude aliens from the whole or any part of its.
territory.
This proposition is so well grounded in International Law that every country has adopted the passport system, which document certifies nationality and entry into any State is only possible with the concurrence of that State.
Again a State exercises territorial supremacy over persons in its territory, whether its own subjects or aliens and can make laws for regulating the entry, residence and eviction of aliens.
Therefore, the application of the , the and the Orders passed under them, to Rev. Father Monteiro was legally competent.
A considerable body of writers on International Law support the proposition and it is sufficient to refer only to Oppenheim (Vol. 1) pp.
675/676 and Brierly Law of Nations p. 217.
If authority were needed the proposition would be found supported in the decision of the Privy Council in Musgrove vs Chun Teeong Toy(1).
The Lord Chancellor in that case denied that an alien excluded from British territory could maintain an action in a British Court to enforce such a right.
This proposition being settled, Mr. Gardner sought support for his plea from the provisions of the of 1960.
That Act was passed to enable effect to be given to the International Conventions done at Geneva in 1949.
Both India and Portugal have signed and ratified the Conventions.
Mr. Gardiner relies on the provisions of the Fourth Schedule relative to the protection of certain persons in time of war.
Ho refers in particular to Articles 1, 2, 4, 6, 8, 47 and 49.
By articles 1 and 2 there is an undertaking to respect and ensure respect for the Con ventions in all circumstances of declared war or of any other armed conflict even if the state of war is not recognised by one of the parties and to all cases of partial or total occupation of the territory of a High Contracting Party even if the occupation meets with no armed resistance.
Article 4 defines a protected person and the expression includes those who at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupa tion, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Article 6 then lays down the beginning and end of application of the Convention.
The Convention applies from the outset of any conflict or occupation.
In the territory of Parties to the conflict, the application of the Convention ceases on the general close of Military operations.
In the case of occupied territories it ceases one year after the general close of military operations but the occupying Power is bound for the duration of occupation, to the extent that such Power exercise the functions of Government in such territory, by articles 1 12, 27, 29 34, 47, 49, 51, 52, 53, 59, 61 73 and 143.
(1) 94 We next come to articles 47 and 49 which are the crux of the matter and are relied upon for the protection.
Mr. Gardner points out that under article 48 even protected persons may in no circumstance renounce in part or in entirety the rights secured to them by the Conventions.
The case, therefore,, depends on whether articles 47 and 49 apply here.
We may now read articles 47 and 49 "47.
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or Government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory." "49.
Individual or mass forcible transfers, as well as deportation of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.
Such evacuation may not involve the dis placement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.
Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain protected persons in an area particularly exposed to the danger of war unless the security of the population or imperative military reasons so demand.
95 The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
" The point of difference between the parties before us in relation to article 47 is whether the occupation continues, the annexation of the territory notwithstanding; and in relation to article 49 whether the order of the Lt. Governor amounts to deportation of a protected person.
Mr. Gardner 's submissions are : the order that has been made is a deportation order and it is therefore ultra vires the Geneva Conventions.
These Conventions create individual rights which cannot even be waived.
So long as occupation continues ,these rights are available and the Geneva Conventions must not be looked at in isolation but read in conjunction with International Law as part of the positive law.
They should not be abandoned lightly.
According to him, conquest was a method of acquiring territory in the past but after the Covenant of the League of Nations, the Charter of the United Nations and the General Treaty for the Renunciation of War, the acquisition of territory in Inter national Law by the use of force does not confer any title.
Occupation, therefore, can only be of terra nullins, not now possible.
He invokes the rule in Heydon 's(1) case and says that the history of the making of the Geneva Conventions, shows that this was precisely the mischief sought to be met and the Conventions now become a part of the laws of India through Parliamentary Legislation.
He concedes that the war of liberation of Goa and the annexation were lawful but he contends that annexation does not deprive protected persons of the protection.
According to him, once there is military action and occupation, occupation cannot cease by a unilateral act of annexation by incorporating the terri tories of Goa with India.
If India did not care to be bound by the Conventions, there was a 'Method of denunciation in article 158 but since the Convention is registered under article 159 even denunciation at a late stage was not possible.
He relies upon article 77 and says that 'Liberated ' means when the occupation comes to an end.
The amendment of the Constitution only legalises annexation so far as India is concerned but in International Law the territory remains occupied.
The occupation is not at an end and it cannot be brought about unilaterally.
The words of article 47 themselves are clear enough to establish this.
In short, the con tention is that occupation does not come to end by annexation and, therefore, the protection continues till there is either cession of the territory or withdrawal of the Occupying Power from the territory, both of which events have not taken place.
In support of his propositions be relies upon Dholakia (International Law) (1) 96 pp.
180, 181, 293; Oppenheim International Law (Vol. 1) 7th Edn.
574 et seq.
; R. Y. Jennings : The Acquisition of Territories in International Law pp.
53 56, 67.
The contention on behalf of the State is that by occupation is meant occupation by armed forces or belligerent occupation and occupation comes to an end by conquest followed by subjugation.
Reference is made to many works on International Law.
We have to decide 'between these two submission.
This is the first case of this kind and we took time to consider our decision.
We are of opinion that the pleas of Mr. Gardner that the makes dispunishable the conduct of Rev. Father Monteiro, must fail.
To begin with, the gives no specific right to any one to approach the Court.
The Act was passed under article 253 of the Indian Constitution read with entries 13 and 14 of the Union List in the Seventh Schedule to implement the agreement signed and merely provides for certain matters based on Geneva Conventions.
What method an aggrieved party must adopt to move the, Municipal Court is not very clear but we need not consider the point because of our conclusions on the other parts of the case.
We shall consider the Conventions themselves.
Before we consider the Geneva Conventions, which form Schedules to the ' Act, it is necessary to look at the Act itself to see what rights it confers in relation to the Conventions, and whether it gives a right to Rev. Father Monteiro in the present circumstances to invite the Court 's opinion.
Being a court of law, this Court must be satisfied about its own jurisdiction, the foundation for which must be in some enforceable law.
Prior to the of 1960 there were the Geneva Convention Act of 1911 and the Geneva Conventions Implementing, Act of 1936.
We need not consider them because by the twentieth section of the present Act, the former ceases to have effect as part of the law of India and the latter is repealed.
The Act is divided into five Chapters.
Chapter I deals with the title and extent and commencement of the Act and gives certain definitions.
Of these, the important definition is that of 'protected internee ' as a person protected by the Fourth Convention and interned in India.
Chapter 11 then deals with punishment of offenders against the Conventions and the jurisdiction of courts to deal with breaches by punishment them.
Chapter III lays down the procedure for the trial of protected persons, for offences enabling a sentence of death or imprisonment for a term of two years or more to be imposed and for appeals etc.
Chapter IV prohibits the use of Red Cross and other emblems without the approval of Central Government and provides for a penalty.
97 Chapter V gives power to the Central Government to make rules.
The Act then sets out the Conventions in its schedules and the Conventions which are four in number are set out in as many Schedules to the Act.
It will thus be seen that the Act by itself does not give any special remedy.
It does give indirect protection by providing for penalties for 'breaches of Convention.
The Conventions are not made enforceable by Government against itself nor does the Act give a cause of action to any party for the enforcement of Conventions.
Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is no right created in favour of protected persons which the Court has been asked to enforce.
If there is no provision of law which the courts can enforce the court may be powerless and the court may have to leave the matter to what Westlake aptly described as indignation of mankind.
The appellant has, however, sought the aid of the Geneva Conventions to establish that he could not be compelled to leave Goa and thus committed no offence.
We may, therefore, say a few words about the Geneva Conventions, particularly Schedule IV, which deals with the protection of civilian persons in time of war.
In the past protection of civilian population was inadequately provided in Conventions and treaties.
The four conventions came at different times, the oldest in 1864 and the last in 1949.
The Fourth Hague Convention of 1907 contained articles 42 56, but this protection was restricted to occupation by an enemy army.
The Regulations merely stated the principles and enjoined maintenance of law and order and regard for family rights, lives of persons and private property, and prohibited collective punishments.
In effect, these were confined to the 'forward areas of war ' and did not apply when 'total war ' took place and the civilian population was as much exposed to the dangers of war as the military.
The example of the First World War showed that civilian population was exposed to exactions.
At the time when the Hague Regulations were done, it was thought that such matters as non internment of the nationals of the adversary would be observed.
But the First World War proved to the contrary.
It was in 1921 that the International Committee of the Red Cross produced a draft Convention which among other things enjoined that the inhabitants of the occupied territory should not be deported and civilians in enemy territory must be allowed to return to their homes unless there were reasons of state security and the internees must receive the same treatment as prisoners of war.
The Diplomatic Conference of 1929 and the Red Cross Conference of 1934 made useful studies but action scheduled to take place 98 in 1940 could not be implemented as the Second World War broke out.
Although the belligerent countries had accepted that the 1929 Convention regarding prisoners of war was applicable to civilians, the lessons of the Second World War were different.
We know the treatment of civilians by Germany and the horried deaths and privations inflicted on them.
War, though outlawed, continues still and as President Max Huber said: "War, as it becomes more and more total, annuls the differences which formerly existed between armies and civilian populations in regard to exposure to injury and danger.
" At the termination of the last war the International Red Cross Conference at Stockholm prepared a draft in 1948, which became the basis of the deliberations of the Diplomatic Conference which met at Geneva from April 21 to August 12, 1949 and the present Convention was framed.
The Regulations were not revised or incorporated.
The 1949 Conventions are additional to the Regulations and it is expressly so laid down in article 154 of the Geneva Conventions.
The Hague Regulations, articles 42 56, contained some limited and general rules for the protection of inhabitants of occupied territory.
The Regulations are supplementary.
Regulations 43 and 55 which have no counter part in the Geneva Conventions must be read.
They are not relevant here Similarly, as there is no definition of 'occupation ' in the Geneva Conventions, article 42 of the Regulation must be read as it contains a definition : "42.
A territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army".
The Regulations further charge the authority having power over the territory to take all measures to establish and assure law and order.
The Regulations generally charged the occupying power to respect the persons and property of the inhabitants of the occupied territory.
There was no provision showing when occupation commenced and when it came to an end.
It is because of this omission that it is claimed in this case that occupation continues so long as there is no cession of the territory by the conquered or withdrawal by the _conqueror and that till then the protection of the Geneva Conventions obtains.
However, article 6, which provides about the beginning and end of the application of the Conventions throws some light on this matter.
The question thus remains, what is meant by occupation ? This is, of course, not occupation of terra nullins but something 'else.
Since there is no definition of occupation in the Geneva 99 Conventions, we have to turn to the definition in the Hague Regulations.
Article 154 of the 4th Schedule reads: "154.
Relation with the Hague Conventions : In the relations between the Powers who are 'bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of 29th July, 1899, or that of 18th October, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections 11 and 111 of the Regulations annexed to the above mentioned Conventions of the Hague.
" The definition of 'occupation ' in the Regulations must be read since the Regulations are the original rules and the Conventions only supplement the Regulations.
We have already quoted the definition and it shows that a territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army.
This means that occupation is by military authorities.
In the Justice case(1) it was stated that the laws of belligerent occu pation apply only to an occupation during the course of actual warfare and that once the enemy has been totally defeated those laws do not apply to the ensuing occupation.
The question thus resolves itself into this : Is occupation in article 47 belligerent occupation or occupation which continues after the total defeat of the enemy ? In this connection courts must take the Facts of State from the declaration of State authorities.
Military occupation is a temporary de facto situation which does not deprive the Occupied Power of its sovereignty nor does it take away its statehood.
All that happens is that pro tempore the Occupied Power cannot exercise its rights.
In other words, belligerent occupation means that the Government cannot function and authority is exercised by the occupying force.
Annexation, on the other hand, occurs when the Occupying Power acquires and makes the occupied territory as its own.
Annexation gives a de jure right to administer the territory.
Annexation means that there is not only possession but uncontested sovereignty over the territory.
As Greenspan(2) put it (p. 215) military occupation must be distinguished from subjugation, where a territory is not only conquered, but annexed by the conqueror.
There is, however, a difference between true annexation on the one hand and premature annexation, or as it is sometimes called 'anticipated annexation ', on the other.
Jurists regard annexation as premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is (1) United States V. Attstoctter, et.
(1947) U. section Military Tribunal, Nucmberg L. R. 3 T. W. C. vi, 34.
(2) The Modern Law of Land Warfare.
100 wholly excluded from the territory.
Anticipated annexation by unilateral action is not true annexation.
True annexation is only so when the territory is conquered and subjugated [see Oppenheim International Law.
(7th Edn.) pp. 846 847.
(Vol. 1) 566 (Vol. 1), pp. 448/52 (Vol. 11), 430 439 (Vol. 11) and 599 et seq (Vol. 11), Greenspan (ibid) pp.
215 et seq 600 603; Gould Introduction to International Law pp.
652 656, 662 663; Brierly Laws of Nations p.[155].
The Conventions rightly lay dowin that annexation has no effect on the protection.
But they speak of premature or anticipated annexation.
Premature or anticipated annexation has no effect.
Such a plea was negatived for the same reason by the Nuremberg Tribunal.
In fact, when the Convention itself was being drafted the experts were half inclined to add the word " alleged ' before 'annexation ' in article 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities are going on.
Subjugation puts an end to the state of war and destroys the source of authority of the existing Government.
In subjugation, which is recognised as one of the modes of acquiring title, not only the de facto but also the de jure title passes to the conqueror.
After subjugation the inhabitants must obey the laws such as are made and not resist them.
Thus the principle which is accepted is that the Occupying Power must apply the Convention even when it claims during conflict to have annexed the occupied territory.
However, when the conflict is over and there is no hostile army in the field, annexation has the effect of creating a title to the territory.
It may be asked why does article 6 then mention a period of one year ? The reason given is that if the Occupied Power turns victorious the land would be freed in one year and if the Occupying Power remains victorious, as hostilities cease, strong measures against the civilian population are no longer necessary.
In this, as in other laws, a line is drawn arbitrarily and it is at the end of one year.
Otherwise also, occupation, which means belligerent occupation, comes to an end when hostilities cease and the territory becomes a art of the Occupying Power.
Annexation may sometimes be peaceful, as for example, Texas and Hawaiian Islands were peacefully annexed by the United States, or after war, as the annexation of South Africa and Orange Free State by Britain.
The question, when does title to the new territory begin, is not easy to answer.
Some would make title depend upon recognition.
Mr. Stimson 's doctrine of non recognition in cases where a state of things has been brought about contrary to the Pact of Paris was intended to deny root of title to conquest but when Italy conquered Abyssinia, the conquest was recognised because it was 101 thought that the state of affairs had come to stay.
Thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (article 2 para 4), events after, the Second World War have shown that transfer of title to territory by conquest is still recognised.
Prof. R. Y. Jennings poses the question : What is the legal position where a conqueror having no title by conquest is nevertheless in full possession of the territorial power, and not apparently to be ousted ?" He recommends the recognition of this fact between the two States.
If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title.
In the present case the facts are that the military engagement was only a few hours ' duration and then there was no resistance at all.
It is hardly necessary to try to establish title by history traced to the early days as was done in the Minquiers and Ecrencs(1) case.
Nor is there any room for the thesis of Dr. Schwarzenberger (A Manual of International Law, 5th Edn.
p. 12 that title is relative and grows with recognition .
True annexation followed here so close upon military occupation as to leave no real hiatus.
We can only take the critical date of true and final annexation as December 20, 1961 when the entire government and administration were taken over and there was no army in occupation and no army in opposition.
The occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest and subjugation.
It must be remembered that Mr. Gardiner concedes that the annexation was lawful.
Therefore, since occupation in the sense used in article 47 had ceased, the protection must cease also.
We are, therefore, of opinion that in the present case there was no breach of the Geneva Conventions.
We were invited to look at the matter from another point of view, namely, even if the protection against deportation envisaged by articles 47 and 49 were taken to be continued, what is the remedy which the Municipal Courts can give ? It was said, the act was an Act of State.
In view of what we have already held it is not necessary to pronounce our opinion on this argument.
The national status of subjects of the subjugated state is a matter for the State, and courts of law can have no say in the matter.
As Oppenbeim (Vol. 1 p. 573) puts it "The subjugating state can, if it likes allow them to emigrate, and to renounce their newly acquired citizenship, and its Municipal Law can put them in any position (1)1953 (I. C. J.) 47.
102 it likes, and can in particular grant or refuse them the same rights as those which its citizens by birth enjoy.
" The Geneva Conventions ceased to apply after December 20, 1961.
The Indian Government offered Rev. Father Monteiro Indian nationality and citizenship which he refused and retained his Portuguese nationality.
As a Portuguese national he could only stay in India on taking out a permit.
He was, therefore, rightly prosecuted under the law applicable to him.
Since no complaint is made about the trial as such, the appeal must fail.
It will be dismissed.
G.C. Appeal dismissed.

summary/full:
The Geneva Conventions Act 6 of 1960 was passed by the Indian Parliament to enable effect to be given to the International Conventions done at Geneva in 1949.
India and Portugal have both signed and ratified the Conventions.
The four Conventions were adopted in as many Schedules to the Act. 'Mc Fourth Convention was meant to apply to all cases of partial or total occupation of the territory of the contracting parties and gave protection to persons who, found themselves in case of a conflict or occupation in the hands of a Party to the conflict or Occupying Power of which they were not nationals.
In the case of occupied territory the Convention applies under article 6 for a period of one year after the general close of Military operations, but during the period of occupation the Occupying Power is bound by certain Articles including, inter alia, articles 1 12, 47 and 49.
By article 47 protected persons in occupied territory can not be deprived of the benefits of the Convention despite any change introduced as a result of the occupation or even annexation of whole or part of the territory by the Occupying Power.
article 49 forbids the deportation of protected persons 'from the occupied territory.
There is no definition of the term 'occupied ' in the Geneva Conventions but the Hague Regulations to which the Conventions are made supplementary defined a territory as occupied when it finds itself 'in fact placed under the authority of a hostile Army '.
The territory of Goa was a Portuguese colony for about 450 years, having been seized by force of arms.
On December 19, 1961 Goa was occupied by Indian Armed Forces following a short military action.
It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India.
The Ordinance was replaced on March 27, 1962 by Act 1 of 1962.
The same day the Constitution (Twelth Amendment) Act 1962 was enacted and was deemed to have come into force on December 20,, 1961.
By this amendment Goa was included in the Union Territories and a reference to Goa was inserted in article 240 of the Constitution.
Indian laws including the Citizenship Act of 1955, the and the were extended to Goa.
The Central Government also promulgated under section 7 of the , the Goa, Daman and Diu (Citizenship) Order 1962.
The second paragraph of the order conferred Indian Citizenship on certain classes of persons in these terri tories, giving an option to those desirous of retaining their previous citizenship or nationality of another country to make a declaration to that effect within one month of the Order.
88 The appellant who was a resident of Goa made pursuant to the above order his declaration of Portuguese nationality.
He was allowed to stay in India under a temporary residential permit till November 13.
, 1964.
After that date he did not ask for a renewal of the permit.
The Lt. Governor of Goa empowered under article 239 of the Constitution ordered him to leave India.
For disobeying the order he was prosecuted under section 14 read with section 3 (2) (c) of the .
Being convicted he appealed unsuccessfully to the Court of Session.
His revision petition being rejected by the Judicial Commissioner, he appealed by special leave to this Court.
The contention on behalf of the appellant were based on the Geneva Conventions which it was said had become a part of the law of India under Act 6 of 1960.
It was urged that after the United Nations Charter the acquisition of territory in International Law by 'force of arms could not confer title.
The amendment of the Constitution only legalised the annexation so far as India was concerned but in International Law the territory remained occupied because it had neither been ceded, nor had the Occupying Power withdrawn.
As a result, it was contended, the protection of articles 47 and 49 continued to be available to the appellant and by disobeying the deportation order he did not commit any offence.
HELD : (i) The appellant 's argument overlooked the cardinal principle of international law that the reception and residence of an alien is a matter of discretion and every State has by reason of its own territorial supremacy not only the legal right but also the competence to exclude aliens from the whole or any part of its territory.
Accordingly every country has adopted the passport system which document certifies nationality and entry into any State is only possible with the concurrence of the State.
Again a State exercises territorial supremacy over persons in its territory, whether its own subjects or aliens, and can make laws for regulating the entry, residence and eviction of aliens.
Therefore the application of the , the and Orders passed under them, to the appellant who had chosen Portuguese nationality was legally competent.
There is authority for the proposition that an alien excluded from the territory of a State cannot maintain an action in a Municipal Court to enforce his right.
[92 H 93 C] Oppen them International Law (Vol. 1) pp.
675/676, Brierly Law of Nations p. 217, and Musgrove vs Chun Teeong Toy, , referred to.
(ii)The Geneva Conventions Act also gives no specific right to anyone to approach the Court.
By itself it gives no special remedy.
It does give indirect protection by providing for penalties for breach of Convention.
The Conventions are not made enforceable by Government against itself, nor does the Act give a cause of action to any party, for the enforcement of the Conventions.
Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is no right created in favour of protected which the court has been asked to enforce.
If there is no provision of law which the courts can enforce the court may be powerless and has to leave the matter to the 'indignation of mankind '.
[97 B C] (iii)The Geneva Conventions too did not support the appellant 's claim to the benefit of article 49 of the Fourth Convention on the basis that Goa continued, even after its annexation by India, to be occupied territory B within the meaning of article 47.
(a)In the Hague Regulations to which the Geneva Conventions were supplementary the definition of 'occupation ' shows that a territory is con 89 sidered as occupied when it finds itself in fact placed under the authority of a hostile army.
This means that occupation is by military authorities i.e. belligerent occupation.
Under belligerent occupation, which is a de facto situation, the Occupied Power is not deprived of its sovereignty or its statehood.
All that happens is that pro tempore the Occupied Power cannot exercise its rights, its Government cannot function and authority is exercised by the occupying force.
In this connection the courts must take the Facts of State from the declaration of the State authorities.
[99 C F] United States vs Attstoctter et tit, (1947) U.S. Military Tribunal, Nuremburg L.R. 3 T.W.C. vi, 34, referred to.
(b) Annexation as distinguished from belligerent occupation occurs when the Occupying Power acquires and makes the occupied territory its own.
Annexation gives a de jure right to administer the territory.
Annexation means that there is not only possession but uncontested sovereignty over the territory.
[99 F G] Greenspan, The Modern Law of Land Warfare, p. 215; referred to.
There is however difference between true annexation on the one hand and premature annexation or 'anticipated annexation ' on the other.
Annexation is premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is wholly excluded from the territory.
Anticipated annexation by unilateral action is not true annexation.
True annexation is only so when the territory is conquered and subjugated.
[99 C H; 100 A B] Oppenbeim : International Law (7th Edn.) pp.
846 847 (Vol. 1), 566 (Vol. 1), pp. 846 847 (Vol. 11), 430 439 (Vol. 11) and 599 et seq (Vol. 11); Greenspan pp.
215 et seq 600 603, Gould : Introduction to International Law pp.
652 656, 662 663; Brierly : Law of Nations, p. 155, referred to.
(c) When Conventions lays down that annexation has no effect they speak of premature or anticipated annexation.
It was so held by the Nuremburg Tribunal and the experts who drafted the Convention were inclined to add the word 'alleged ' before 'annexation ' in article 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities were going on subjugation puts an end to the State of war and destroys the source of authority of the existing Government.
In subjugation which is recognised as one of the modes of acquiring title not only the de facto but also the de jure title passes to the conqueror.
After subjugation the inhabitants must obey the laws such as they are and not resist them.
[10C D] (d) Under article 6 the Convention continues to apply to occupied territory for one year after the general close of hostilities for the reason that if the Occupied Power turns victorious the land would be freed in one year, and if the Occupying Power remains victorious, as hostilities cease, strong measures against the civilian population are no longer necessary.
Otherwise also, occupation, which means belligerent occupation comes to an end when hostilities cease and the territory becomes a part of the Occupying Power.
[100 F G] (e) Title to new territory is not dependent on recognition.
Despite the Stimson doctrine the conquest of Abyssinia by Italy was recognised because it was though that the State of affairs had come to stay.
Even after the adoption of the United Nations Charter events since the Second 2Sup.
CT/69 7 90 World War have shown that transfer of title to territory by conquest is still recognised.
If cession after defeat can create title, occupation combined with absence of opposition must lead to the same result.
[100 H 101 B] (f)In the present case the military engagement was only a few hours duration and there was no resistance at all.
It was hardly necessary to try to establish title by history traced to the early days nor any room for Schwarzenburger 's thesis that title is relative and grows with recognition.
True annexation followed here so close upon military occupation as to leave no real hiatus.
True annexation by conquest and subjugation was complete on December 20, 1961 and the Geneva Convention ceased to apply 'from that date.
It was not disputed that the annexation was lawful.
Therefore since occupation in the sense used in article 47 had ceased the protection must cease also.
[101 C F] Minquiers and Ecrenos, 1953 (I.C.J.) 47 and Schwarzenburger : A Manual of International Law, 5th Edn.
p. 12, referred to.
(iv)The national status of subject of the subjugated State is a matter for the State and courts of law can have no say in the matter.
Having chosen Portuguese nationality the appellant could only stay in India on taking out a permit.
He was therefore rightly convicted under the law applicable to him.
[101 H 102 B] Oppenheim International Law, Vol.
1 p. 573, referred to.
[On the view taken it was not considered necessary to.
decide the question whether deportation was an Act of State and the Municipal Courts could therefore give no remedy.] [101 G]


judgement:
Appeal No. 108 of 1952.
Appeal from the Judgment and Decree dated the 29th March, 1950, of the High Court of Judicature at 468 Calcutta in Appeal from Original Decree No. 121 of 1945 arising from the Decree dated the 22nd December, 1944, of the Court of Subordinate Judge at Alipore, in Title Suit No. 70 of 1941.
N. C. Chatterjee (C. N. Laik, D. N. Mukherjee and Sukumar Ghose, with him) for the appellants.
section P. Sinha (B.B. Haldar and section C. Bannerji, with him) for respondents Nos.
I to 3. 1954.
May 21.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal, which has come before us, on a certificate granted by the High Court of Calcutta, under article 133(1) of the Constitution, is directed against a judgment and decree of a Division Bench of that Court dated the 29th March, 1950, affirming, on appeal, those of the Subordinate Judge, Fourth Court, Alipore, passed in Title Suit.
No. 70 of 1941.
The appellants before us are the heirs and legal representatives of the original defendant No. 3 in the suit, which was commenced by the plaintiffs respondents to recover possession of the property in dispute, on establishment of their title, as reversionary heirs of one Haripada Patra, after the death of his mother Rashmoni, who got the property in the restricted rights of a Hindu female heir on Haripada 's death.
To appreciate the contentions that have been raised by the parties to this appeal it would be necessary to narrate the material facts in chronological order.
The property in suit which is premises No. 6 Dwarik Ghose 's Lane situated in the suburb of Calcutta admittedly formed part of the estate of one Mahendra Narayan Patra, a Hindu inhabitant of Bengal, owning considerable properties, who died on the 17th April, 1903, leaving him surviving his widow Rashmoni, two infant sons by her, Mohini Mohan and Haripada and a grandson Ram Narayan by a predeceased son Shyama Charan.
Shyama Charan was the son of Mahendra by his first wife, who died during his lifetime.
On the 17th February, 1901, Mahendra executed a will by which he made certain religious and charitable dispositions and 469 subject.
to them, directed his properties to be divided amongst his infant sons Mohini and Haripada and his grandson Ram Narayan.
Ram Narayan was appointed ' executor under the will.
After the death of Mahendra, Ram Narayan applied for probate of the will and probate was obtained by him on the 6th of October, 1904, Ram Narayan entered upon the management of the estate.
He developed extravagant and immoral habits and soon ran into debts.
The bulk of the properties were mortgaged to one Kironsashi who having obtained a decree on the mortgage applied for sale of the mortgaged properties.
Thereupon Rashmoni on behalf of her infant sons instituted a suit against the mortgagee and the mortgagor and got a declaration that the mortgage decree could not bind the infants ' shares in the properties left by their father.
This judgment was given on the 31st March, 1909.
On the 13th August, 1909, the two infant sons of Mahendra to wit Mohini and Haripada, by their mother and next friend Rashmoni, instituted a suit in the Court of the Subordinate Judge at Alipore, being Title Suit No. 45 of 1909, claiming administration of the estate left by Mahendra as well as partition and accounts on the basis of the will left by him.
On the 14th of August, 1909, one Baroda Kanta Sarkar, Sheristadar of the Court of the District Judge, Alipore, was appointed, with the consent of both parties, receiver of the estate forming the subject matter of the litigation.
The receiver took possession of the properties immediately after this order was made.
The management by the receiver, as it appears, was not at all proper or beneficial to the interest of the two sons of Mahendra.
Mahendra himself left no debts and whatever debts were contracted,, were contracted by Ram Narayan to meet his own immoral and extravagant expenses.
The receiver however went on borrowing large gums of money upon ex parte orders received from the Court, the ostensible object of which was to pay off the debts due by Ram Narayan which were not at all binding on the plaintiffs.
Fearing that the longer the suit continued and the properties remained in the hands of the receiver the more harmful it would be to the interests of the 470 minors, Rashmoni on behalf of the minors compromised the suit.
with Ram Narayan and a Solenama was filed on the 13th June, 1910.
The terms of the compromise, in substance, were, that the properties in suit were to be held in divided shares between the three parties and specific allotments were made in favour of each, the properties allotted to the share of Haripada being specified in schedules Gha and Chha attached to the compromise petition.
It was further provided that the receiver would be discharged on submitting his final accounts.
It may be mentioned here that the property which is the subject matter of the present suit was, under the Solenama, allotted to the share of Haripada.
On the very day that the compromise was filed, Rashmoni applied for discharge of the receiver.
The Court made an order directing the receiver to submit his final accounts within one month, or as early as possible, when the necessary order for discharge would be made.
It was further directed that as the suit was disposed of on compromise the receiver should discontinue collecting rents and profits due to the estate from that day.
This order however was modified by a subsequent order made on 23rd June, 19 10, which directed that the receiver was to continue in possession of the estate until he was paid whatever was due to him for his ordinary commission and allowances and until the parties deposited in Court the amounts borrowed by the receiver under orders of the Court or in the alternative gave sufficient indemnity for the same.
After this, Rashmoni on behalf of her minor sons filed two successive applications before the Subordinate Judge praying for permission to raise by mortgage, of a part of the estate, the moneys necessary for releasing the estate from the hands of the receiver.
The first application was rejected and the second was granted, after it was brought to the notice of the Subordinate Judge that the receiver was attempting to dissuade prospective lenders who were approached on behalf of Rashmoni, to lend any money to her.
On the 16th of January, 191 1, Haripada, the younger son of Rashmoni, died and his interest devolved upon his mother as his heir under the Hindu law.
On the 28th January, 1911, the following order was recorded by the Suborainate Judge: 471 "The receiver has filed a statement showing the amount as due to him up to the end of the.
current month.
This claim amounts to Rs. 20,950 2 6 pies only.
The parties may deposit the sum on or before the 1st February next in Court and on such deposit the receiver will be discharged and the possession of the estate of late Mahendr Narayan Patra, will be made over to the parties.
" On the very same day Mohini exectued a mortgage (exhibit M 1) in favour of one Suhasini Dasi by which he hypothecated the properties allotted to his share and also his future interest as reversions to the share of Haripada, to secure an advance of Rs. 30,000.
The loan was to carry interest at the rate of 18% per annum.
One thing may be mentioned in connection with this mortgage, and that is, that amongst the properties included in the mortgage were two properties, namely, premises No. 15/1 and 16 Chetlahat Road, which had already been sold and to which the mortgagor bad no title at the date of the mortgage.
On the 1st February, 1911, Mohini deposited in Court the sum of Rs. 2,0,950 2 6 pies, being the amount alleged to.
be due to the receiver and the Court by an order passed on that date directed the release of the estate from the hands of the receiver.
After the estate was released a petition was filed on behalf of the plaintiffs on the 15th February, 1911, praying that the loans said to be contracted by the receiver should not be paid out of the money deposited in Court, as these borrowings were made not for the protection of the estate but only for the personal benefit of the defendant, Ram Narayan, and to pay off his creditors.
It was contended that the loans raised by the receiver were not raised in good faith, after proper notice to the plaintiffs but on the strength of orders which he obtained ex parte from the Subordinate Judge without disclosing the material facts.
This application. was rejected by the Court on the 23rd February,1911.
After this order was made,the plaintiffs put in a petition praying that payment of the moneys, due to the creditor with the exception of what was necessary to pay off one of the creditors, named Rakhal Das Adhya, be stayed till the following Monday 472 as the plaintiffs wanted to move the High Court against the order of the Subordinate Judge mentioned above.
The Court granted this prayer and on the 2nd of March following, orders were received from the High Court directing that the moneys were to be detained in Court pending further orders.
The High Court made order on the plaintiff 's petition on the 29th May, 1911.
The learned Judges were very critical of the appointment of the Sheristadar of the Court as receiver of the estate and in no measured terms blamed the Subordinate Judge for passing ex parte, orders for raising loans on the applications of the receiver without any investigation at all and the receiver also for borrowing money not for the benefit of the estate but for the personal benefit of Ram Narayan, the defendant.
The High Court directed a full and proper investigation of the accounts of the receiver by a Commissioner and a Vakil of the High Court was appointed for that purpose.
The Commissioner after a protracted enquiry submitted his report which was accepted by the High Court.
Under the final orders passed by the High Court not only were the plaintiffs held not liable to pay any money to the receiver but the receiver was directed to pay a sum of Rs. 6,708 to the plaintiffs.
The plaintiffs were also to receive Rs. 4,084 from the defendant, Ram Narayan.
The defendant was to pay Rs. 19,124 to the receiver and the receiver wag made personally liable for the loans that he had incurred.
This order was made on the 23rd July, 1913.
In the meantime while the investigation of accounts were going on under orders of the High Court, Rashmoni, together with her son Mohini executed a security bond (exhibit
E 1) on the 1st August, 1911, and it is upon the legal effect of this document that the decision of this case practically depends.
By this security bond, which was executed in favour of Suhasini Dasi, the mortgagee in the mortgage bond of Mohini, Rashmoni purported to hypothecate all the properties that she got as heir of Haripada, as additional security for the loan of Rs. 30,000 already advanced to Mohini under the mortgage.
As is stated already, two properties situated at Chetla were included in the mortgage of 473 Mohini although they were already sold.
The security bond recites that the mortgagee having discovered this fact was about to Institute legal proceedings against the mortgagor and it was primarily to ward off these threatened proceedings and remove any apprehension from the minds of the mortgagee about the sufficiency of the security that this bond was executed.
It is further stated in the bond that the estate of Haripada in the hands of his mother was benefited by the deposit of Rs. 20,950 in Court by Mohini Mohan out of the sum of Rs. 30,000 borrowed on the mortgage and that Mohini had spent the remaining amount of the loan towards clearing certain debts of Rashmoni herself and to meet the litigation and other expenses of both of them.
Mohini died soon after on the 8th of November, 1911.
On October 13, 1917, Suhasini instituted a suit for enforcing the mortgage and the security bond against Rashmoni and the heirs of Mohini.
preliminary decree was passed on compromise in that suit on the 24th September, 1918, and on the 25th July, 1919, the decree was made final.
The decree was put into execution and on the 15th September, 1919, along with other properties, the property in dispute was put up to sale and it was purchased by Annada Prasad Ghose for Rs. 13,500.
On the 14th November, 1919, Bhubaneswari, wife of Ram Narayan, as guardian of her infant sons filed a suit, being Title Suit No. 254 of 1919 against Suhasini, Rashmoni and Annada attacking the validity of the mortgage decree obtained by Suhasini as well as the sale in execution thereof.
The suit ended on the 6th July, 1921, and the plaintiff gave up her claim.
On September 5, 1922, Annada Ghose borrowed a sum of Rs. 10,000 from Sarat Kumar Das, the original defendant No. 3 in, the suit and the father of the present appellants and by way of equitable mortgage deposited with the lender the title deeds of the property No. 6, Dwarik Ghose Lane.
On the 14th September, 1925, Annada sold the property by executing a conveyance in favour of the mortgagee Sarat Kumar Das for a consideration of Rs. 15,500.
On the 8th June, 1939, Rashmoni died.
About a year later on July 15, 1940, the three sons of Ram Narayan, who 61 474 are the reversionary heirs of Haripada after the death of Rashmoni, commenced the present suit in the Court of the Subordinate Judge at Alipore claiming to recover possession of the property on the allegation, that the security bond executed by Rashmoni not being supported by legal necessity, the sale in execution of the mortgage as well as the subsequent conveyance in favour of Sarat Kumar Das could pass only the right, title and interest of Rashmoni and could not affect the reversionary rights of the plaintiffs.
Several other persons were impleaded as parties defendants and a number of issues were raised with which we are not concerned in this appeal.
What concerns us in this appeal is the dispute between the plaintiffs on the one hand and defendant No. 3 on the other and this dispute centered.
round three points, namely, (1)Whether the security bond (exhibit E 1) executed by Rashmoni along with Mohini was executed for legal, necessity and was therefore binding on the reversioners, of Haripada after the death of Rashmoni ? (2)Whether the fact that Mohini, who was the presumptive reversioner at that time, joined with his mother in executing the security bond would make it binding on the ,actual reversioner after the death of Rashmomi? In ' any event if such consent on the part of the presumptive reversioner raised a presumption of legal necessity, was that presumption rebutted in the present case by the evidence adduced by the parties ? (3)Whether the title of defendant No. I was protected ,he being a stranger purchaser who had purchased the property from the purchaser at an execution sale after making proper enquiries and obtaining legal advice ? The trial Judge by his judgment dated the 22nd December, 1944, decided all these points in favour of the plaintiffs and decreed the suit.
On appeal by the defendant to the High Court, the decision of the trial Judge was affirmed.
The heirs of defendant No.3 have now come up to this Court and Mr. Chatterjee appearing in support of the appeal has reiterated all the three points which were urged on behalf of his clients in the Courts below.
475 On the first point both the Courts below have held concurrently, that there was absolutely no legal necessity which justified the execution of the security bond by Rashmoni in favour of Suhasini.
Mr. Chatterjee lays stress on the fact that it was a matter of imperative necessity for both the plaintiffs to get back the estate of their father from the hands of the receiver as the debts contracted by the receiver were mounting Up day after day.
It is pointed out that on the 28th January, 1911, the Court had made a peremptory order to the effect that the properties could be released only if the plaintiffs deposited Rs. 20,950 annas odd on or before the 1st February next.
In order to comply with this order Mohini had no other alternative but to borrow money on the mortgage of his properties and this he had to do before the 1st February, 1911.
It is true that because of the unfortunate death of Haripada only a few days before, Rashmoni could not join in executing the mortgage but she, as heir of Haripada, was really answerable for half of the money that was required to be deposited in Court.
It is said that this was not a mere moral obligation but a legal liability on the part of the lady, as Mohini could have claimed contribution from her to the extent that Haripada 's estate was benefited by the deposit.
The execution of the security bond therefore was an act beneficial to the estate of Haripada.
The contentions, though somewhat plausible at first sight, seem to us to be wholly without substance.
In the first place the money borrowed by Mohini or deposited by him in Court did not and could not benefit Haripada 's estate at all.
As was found, on investigation of accounts, under orders of the High Court later on, nothing at all was due to the receiver by the estate of Haripada or Mohini.
On the other hand, both the brothers were entitled to get a fairly large sum of money from the receiver.
The trial Judge found that there was no urgent necessity to borrow money for releasing the estate and in fact it was Mohini who acted in hot haste to execute the mortgage, his only object being to get the properties in his own hands.
It may be, that it was not possible to know the actual state 476 of affairs with regard to the ' receiver 's accounts and consequently it might well have been thought prudent to borrow money to ward off what was considered to be a danger to the estate.
This might furnish some excuse or explanation for Mohini 's borrowing money on the 28th January, 191 1, but that could not make the act of Rashmoni in executing the security bond, seven months after that event, an act of prudent management on her part dictated either by legal necessity or considerations of benefit to the estate of her deceased son ' In the first place it is to be noted that the total amount borrowed by Mohini was Rs. 30,000 out of which Rs. 20,950 only were required to be deposited in Court.
The recital in the security bond that the rest of the money was spent by, Mohini to pay off certain debts of Rashmoni herself and also to meet the litigation and household expenses of both of them has been held by the Subordinate Judge to be false.
It has been found on facts that Rashmoni had no occasion to incur any debts either for litigation expenses or for any other purpose.
But the most important thing that would require consideration is the state of things actually existing at the time when the security bond was executed.
Even if the release of the estate was considered to be desirable, that had been already accomplished by Mohini who borrowed money on his own responsibility.
The utmost that could be said was that Rashmoni was bound to reimburse Mohini to the extent that the deposit of money by Mohini had benefited the estate of Haripada.
The High Court has rightly pointed out that Rashmoni did not execute the bond to raise any money to pay off her share of the deposit and in fact no necessity for raising money for that purpose at all existed at that time.
As has been mentioned already, by an order passed by the High Court on the revision petition of Mohini and his mother against the order of the Subordinate Judge dated the 23rd February, 191 1, the whole amount of money deposited in Court on the 1st, February, 191 1, with the exception of a small sum that was paid to a creditor, with the consent of both parties, was detained in Court.
The High Court dispos ed of the revision case on 29th May, 1611, and directed 477 investigation into the accounts of the receiver by a Commissioner appointed by it.
As said already, the Court passed severe strictures on the conduct of the receiver as well as of the Subordinate Judge and plainly indicated that the moneys borrowed by the receiver were borrowed not for the benefit of the plaintiffs at all.
Undoubtedly the accounts were still to be investigated but what necessity there possibly could be for Rashmoni to execute, after the High Court had made the order as stated above, a security bond by which she mortgaged all the properties that were allotted to Haripada in his share as an additional security for the entire loan of Rs. 30,000 no portion of which be defied the estate of Haripada at all? In our opinion the only object of executing the security bond was to protect Mohini who was threatened with legal proceedings by his creditor for having included a nonexistent property in the mortgage bond.
Rashmoni certainly acted at the instance of and for the benefit of Mohini and she might have been actuated by a feeling of Maternal affection to save her son from a real or imaginary danger.
But by no stretch of imagination could it be regarded as a prudent act on the part of a Hindu female heir which was necessary for the protection of the estate of the last male holder.
In our opinion the view taken by the Courts below is quite proper and as a concurrent finding of fact it should not be disturbed by this Court.
The second point urged by Mr. Chatterjee raises the question as to whether the fact of Mohini 's joining his mother in executing the security bond would make the transaction binding on the actual reversioner, Mohini being admittedly the presumptive reversioner of Haripada at the date of the transaction.
We do not think that there could be any serious controversy about the law on this point.
The alienation here, was by way of mortgage and so no question of surrender could possibly arise.
Mohini being the immediate reversioner who joined in the execution of the security bond must be deemed to have consented to the transaction.
Such consent may raise a presumption that the transaction was for legal necessity or that the mortgagee had acted therein after proper and bona flde enquiry and has 478 satisfied himself as to the existence of such necessity(1).
But this.
presumption is rebuttable and it is open to the actual reversioner to establish that there was in fact no legal necessity and there has been no proper and bonafide enquiry by the mortgagee.
There is no doubt that both the Courts below have proceeded on a correct view of law and both have come to the conclusion upon a consideration of the evidence in the case that the presumption that arose by reason of the then reversioner 's giving consent to the transaction was rebutted by the facts transpiring in evidence.
Mr. Chatterjee placed considerable reliance upon another document which purports to be a deed of declaration and was executed by Ram Narayan on the 5th of October, 1918.
At this time Mohini was dead 'and Ram Narayan was the immediate reversioner to the estate of Haripada and by this deed he declared inter alia that the debts contracted by Rashmoni were for proper and legal necessity.
This deed purports to be addressed to Bangshidari Ghosh and Keshav Dutt, two other alienees of the properties of Mohini and Haripada and does not amount to a representation made to the auction purchaser Annada Prasad Ghose or to the father of the present appellants.
In fact they had not come in the picture at all at that time.
At the most it can be regarded only as an admission by a presumptive reversioner and cannot have any higher value than the consent expressed by Mohini who figured as a co execuitant of the security bond.
It cannot bind the actual reversioner in any way.
Mr. Chatterjee attempted to put forward an argument on the authority of certain observations in the case of Bajrangi vs Monokarnika(2) that as the present appellants are the sons of Ram Narayan the admissions made by their father would bind them as well.
It is true that there is a passage at the end of the judgment in Monokarnika 's case(1) which lends some apparent support to the contention of the learned counsel.
The concluding words in the judgment stand as follows: (1)Vide Debi Prosad Chowdhury vs Golap Bhagat, I.L.R. at 78I. Approved of by the judicial Committee in Gounden vs Gounden, 46 I.A. 72, 84.
(2) 35 I.A. 1. 479 "The appellants who claim through Matadin Singh and Baijnath Singh must be held bound by the consent of their fathers.
" But the true import of this passage was discussed by the Privy Council in their later pronouncement in Rangasami Gounden vs Nachippa Gounden(1) and it was held that the words referred to above should I not be construed to lay down the proposition that such consent on the part of the father would operate proprio vigore and would be binding on the sons.
This proposition, Their Lordships observed, was opposed both to principle and authority, it being a settled doctrine of Hindu law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through anyone who went before him.
As the sons of Ram Narayan claim as heirs of Haripada and not of their father, the admissions, if any, made by the latter could not in any way bind them.
This contention of the appellant must therefore fail.
The third and the last contention raised by Mr. Chatterjee is that in any event his client is a stranger who has bona fide purchased the property for good consideration after making due enquiries and on proper legal advice and be cannot therefore be affected by any infirmity of title by reason of the absence of legal necessity.
In our opinion the contention formulated in this form really involves a misconception of the legal position of an alienee of a Hindu widow 's property.
The interest of a Hindu widow in the pro perties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bonafide purchaser for value without notice.
From very early times the Hindu widow 's estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate (2).
For legal necessity she can convey to another an absolute title to the property vested in her.
If there is no legal 'necessity, the transferee gets only the widow 's estate which is not even an (1) 46 I.A. 72 at 83 84.
(2) Vide The Collector of Masaulipatam vs Cavaly Venkata, S.M.I.A. 529, 480 indefeasible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re marriage, adoption, etc.
If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself.
Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alienee after making bona fide enquiries satisfied himself as best as he could that such necessity existed, then as the Privy Council pointed out in Hunooman Persaud Panday 's case (1) the actual existence of a legal necessity is not a condition precedent to the validity of the sale.
The position therefore is that if there is no necessity in fact or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widow 's estate in the property which does not affect in any way the interest of the reversioner.
In this case the alienation was by way of mortgage.
The finding of both the Courts below is that there was no legal necessity which justified the execution of the security bond.
The mortgagee also could not prove that there was representation of the legal necessity and that she satisfied herself by bona fide enquiries that such necessity did exist.
On 'this point the, finding recorded by the High Court is as follows : " In the present case, there is no scope for an argument that there was such representation of legal necessity or that on bona fide enquiry the alienee satisfied herself 'that there was such a necessity, for as I have already pointed out the security bond itself states that it was in consideration of benefits already received and with a view to induce Suhasini to forbear from proceeding against Mohini, that the bond was being executed.
There is no representation in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger to the estate or for the purpose of any other legal necessity.
Whatever enquiries the appellants may have made (1) would be of no avail to them when the alienation is not binding on the whole estate but only on the woman 's estate of Rashmoni.
" In our opinion the view taken by the High Court is quite proper.
On this finding the security bond could operate only on the widow 's estate of Rashmoni and it was that interest alone which passed to the purchase.
at the mortgage sale.
The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice.
The result is that in our opinion the decision of the High Court is right and this appeal must stand dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
It is a well settled doctrine of Hindu law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through any one who went before him.
The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchaser for value without notice.
A Hindu widow has got only qualified proprietorship in her estate which she can alienate only when there is justifying necessity and the restrictions on her powers of alienation are inseparable from her estate.
For legal necessity she can convey to another an absolute title to the property vested in her.
If there is no legal necessity the transferee gets only the widow 's estate which is not even an indefeasible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re marriage, adoption, etc.
If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself.
Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alienee after making bona fide enquiries satisfied himself as best as he could that such necessity existed, the actual existence of a legal necessity is not a condition precedent to the validity of the sale.
Therefore if there is no necessity in fact or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is not void but the transferee would get only the widow 's estate in the property which does not in any way affect the interest of the reversioner.
Debi Prasad Chowdhury vs Golap Bhagat (I.L.R. 40 Cal.
721), Rangasami Gounden vs Nachiappa Gounden (46 I.A. 72), Bajrangi vs Manokarnika (35 I.A. 1), The Collector of Masulipatam vs Cavaly Venkata (8 M. I.A. 529) and Hunoomanpersaud Pandey vs Musammat Babooee Munraj Koonweree referred to.


judgement:
Appeal No. 20 of 1968.
Appeal under Section 116 A of the Representation of the People Act, 1951 from the judgment and order dated the November 30, 1967 of the Patna High Court in Election Petition 19 of 967.
Danial A. Latifi, and R.A. Gupta, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by an unsuccessful candidate at an election held in February 1967 for the Bihar State Legislative Assembly from the Single Member Rajmahal Constituency No. 139.
Originally there were eight candidates.
: we are concerned only with two of them, namely, the election petitioner and respondent, Nathumal Dokania, the returned candidate as a result of the election.
The election petitioner lost before the High Court.
The main ground on which he presses this appeal are based on paras 4(c) and 4(e) of the petition.
The relevant issue framed by the learned trial Judge with regard to paragraph 4 (c) issue No. 5 reading : "Did the respondent or his election agent or his workers with his or his election agent 's consent resort to corrupt practices in the election, as alleged by the petitioner and has the result of the election been materially affected thereby ?" para 4(c) it is pleaded that the respondent himself and his agents and workers including certain named persons with his consent "committed a corrupt practice of publication of statements of facts throughout the constituency and mainly at Shahebganj, Teen Pahar and Rajmahal during the election campaign during 43 the period 11th February 1967 to 15th February 1967 which induced and caused deception in the mind of the electors whereby the respondent procured a large number of votes which he would not otherwise have secured but for the corrupt practice aforesaid.
" Copies of the pamphlets from Annexure 2 series to the petition.
Mr. Latifi appearing for the appellant submitted that Annexure 2(A) does not further his client 's cause.
His grievance is based on Annexure 2.
The translation of this Annexure of which the original was in Hindi shows that it was a call to the Muslim voters of Rajmahal to "hear the message and prepare the graveyard for the Congress.
" Reference was made therein to "the appeal of the day by Maulana Syed Usman Ghani Saheb of Phulwari Sharif Khankah" "that nobody should be in illusion that Muslims have to vote for the Congress.
time also.
It was also suggested that on account of high handedness of the Congress group Muslims should not support it.
There was also a reference to the appeal of Pit Saheb of the Dargah of Phulwari Sharif that Muslims should not vote for any Congress candidate.
The appeal ends with the sentence, "when you have life long connection with Sri Nathmal Dokania, the candidate of the Swantantra Party and when the Head of your religion, your Islam also opposes the Congress, then it becomes your duty to come out victorious by affixing stamps on the "Star" symbol." Mr. Latifi tried to argue that by the publication of the pamphlet an attempt was made to.
induce Muslim electors not to vote for a Congress candidate in opposition to the mandates of the two.
named religious heads.
In other words, his contention was that undue influence within the meaning of section 123(2) of the Act was sought to be exercised on the Muslim voters in the name of the religious heads mentioned in the pamphlet under the threat of divine displeasure or spiritual censure.
He also sought to argue that the reference to the mandate of Islam in the pamphlet amounted to the use of a religious symbol and as such the appeal by the pamphlet came within the mischief of section 123 (3) of the Act.
Under 8. 123(2), a candidate may be guilty of corrupt practice if he uses "undue influence" which in the words of the section means any direct or indirect interference or attempt to interfere with the free exercise of any electoral right of a voter.
Mr. Latifi 's submission was.
that the pamphlet came within the mischief of subclause (ii) of proviso, (a) to section 123(2).
Unfortunately for Mr. Latifi, although the pamphlet might have sustained a plea of undue influence about which we express no opinion, there is no pleading to that effect in the petition.
In order that a pleading may be sufficient to make out a case of undue influence, it must 44 set out full particulars of it under the provisions of section 83(1)(c) of the Act which may be compared with Order 6 rule 4 of the Code of Civil Procedure.
The said provision of the Act read with section 123(2) makes it obligatory on a party setting .up a case of corrupt practice by exercise of undue influence as suggested, to give full particulars thereof by stating inter alia who attempted to induce electors to believe that voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made.
The real charge in paragraph 4(c) of the petition is that the pamphlet complained of misled the electors by false statements.
Such a pleading falls far short of an allegation of undue influence by an attempt to make electors exercise their franchise in a particular manner.
Para 4(c) does not even mention Muslim voters and does not contain any averment to the effect that they were sought to be influenced by the opinion of the religious heads.
Mr. Latifi 's attempt to bring his case under section 123(3) is equally futile.
Mr. Latifi sought to argue that Islam was a religious symbol of Muhamedans and the publication of the pamphlet containing a reference to the mandate of Islam was an attempt to prejudicially affect the election of the, petitioner.
This case too is not borne out by the pleadings.
Failing in his attempt to bring the ' case under the two sub sections mentioned already, he tried to bring his case under section 123 (4) of the Act.
In this too, in our view, he cannot succeed.
To bring the case under this sub section, there must be a publication by the candidate or his agent of any statement of some fact which is false, and which he believed to be false or did not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
The pamphlet does not cast any aspersion on the personal character or conduct of the election petitioner.
Nor is there any false statement in relation to the candidature of the petitioner.
In fact there is no reference to him at all.
Consequently, the election petition does not attract the operation of the aforementioned sub sections of section 123 of the Act.
The learned trial Judge should not have entertained any argument under subsections 3 and 3A of section 123 of the Act as in view of the pleadings issue No. 5 did not permit the raising of such contentions.
In view of the pleadings we did not permit Mr. Latifi to pursue his arguments on this issue on the basis of section 123 sub sections
(2)or (3) of the Act.
That leaves us only with the allegation in para 4(e) of the petition which runs thus: "The election of the respondent is void, because the Returning Officer who is also the Sub Divisional Magis 45 trate of the area, in collusion with the respondents harassed the petitioner in all possible ways so much so that a mere application for correction in the petitioner 's name was allowed at the last juncture and the petitioner had been arrested the very next day of the said application, was put in jail for eight valuable days and thereby prevented from pursuing the election campaign.
" The issue under which the above complaint was sought to be raised was the general one, namely, whether the election of the respondent is liable to be set aside ? Mr. Latifi drew our attention to portions of the testimony of the Returning Officer where he denied that he was in collusion with Nathmal Dokania or that because of such collusion he got the petitioner arrested after he had filed applications for correction of the entries with respect to his name in the electoral roll.
He also denied that he got the petitioner arrested with any mala fide intention so that he might not be able to contest the election.
in his cross examination, the Returning.
Officer referred to.
the proceedings started against the petitioner and said that the petitioner had been arrested once in January and for a second time in February 1967.
The arrest in January 1967 was in connection with proceedings under section 107 of the Code of Criminal Procedure.
The arrest in February 1967 was in connection with a case for some substantive offences.
He added however that he was not in a position to say what was the offence alleged to have been committed by the petitioner by a mere reference to the certified copy of the order sheet.
On this evidence there was nothing before the court to justify a conclusion in favour of the petitioner on the general issue.
Only some suggestions had been made to the Returning Officer in his cross examination that he had ,acted mala fide and that he had a acted in collusion with the successful candidate.
No details with regard to the complaints leading to or the grounds for the arrests were forthcoming.
We find it difficult to believe that the petitioner did not know the 'grounds on which he was put under arrest.
The arrest immediately before the election surely hampered the campaign of the election petitioner, but by itself the arrest does not lead to the conclusion that the Returning Officer was trying to bring pressure upon the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate.
These being the only two points which were urged before us in the appeal, the appeal must fail and it is hereby dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The election of the respondent to the Bihar Legislative Assembly at the 1967 general election was challenged by the appellant one of the defeated candidates in an election petition.
Annexure 2 to the petition was a pamphlet alleged to have been issued by the respondent and his supporters in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which Islam was opposed.
The High Court dismissed the election petition whereupon appeal was filed in this Court.
The appellant urged that (i) In the aforesaid pamphlet an attempt was made to induce muslim voters not to vote for a Congress candidate in opposition to the mandate of two named religious heads and this amounted to the corrupt practice of "undue influence" under section 123(2) of the Representation of the People Act 1951; (ii) The reference to the mandate of Islam amounted to the use of a religious symbol within the mischief of section 123(3); (iii) The said pamphlet also came within the mischief in section 123(4); (iv) The Returning Officer who was also the Sub Divisional Officer of the District ordered the arrest of the appellant immediately before the election; this was done mala fide, in collusion with the respondent and the appellant was thereby hampered in his election campaign.
HELD: (i) The pleadings in the appellant 's election petition did not permit consideration of his contention based on section 123(2) of the Act.
In order that a pleading may be sufficient to make out a case of undue influence it must set out full particulars of it in compliance with section 83(1)(c) of the Act comparable to Order 6 r. 4 of the Code of Civil Procedure.
The said provision of the Act read with section 123(2) makes it obligatory on a party setting up a case of corrupt practice by exercise of undue influence as suggested, to give full particulars thereof by stating inter alia who attempted ' to induce electors to believe that .voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made.
The real charge in the relevant paragraph of the petition in the present case was that the pamphlet complained of misled the electors by false statements.
Such a pleading falls short of an allegation of unique influence by an attempt to make electors exercise their franchise in a particular manner.
[43 H 44 C] (ii) The contention that the case fell under section 123.(3) because of the use of the mandate of Islam as a religious symbol was 'also not borne out by the pleadings and therefore could not be considered.
[44 D] (iii) To bring the case under section 123(4) there must be a publication by the candidate or his agent of any statement of same fact which is up.
CI/69 4 42 false, and which is believed to be false or not believed to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate being a ,statement reasonably calculated to prejudice the prospects of that candidate 's election.
The pamphlet in question did not cast any aspersion on the personal character or conduct of the election petitioner.
Nor was there any false statement in relation to the candidature, of the petitioner.
.Section 123(4) was therefore not attracted to the case.
[44 E F] (iv) The.
evidence in the case did not prove that the Returning Officer caused the appellant to be arrested mala fide or in collusion with the respondent.
The arrest immediately before the election surely hampered the campaign of the election petitioner, but by itself the mere fact of arrest does.
not lead to the conclusion that the Returning Officer was trying to bring pressure on the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate.
[45 G]