judgement:
etition (Criminal) No. 1987 of 1982.
(Under Article 32 of the Constitution of India) Mrs. K. Hingorani for the Petitioner.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
: This Writ Petition discloses a sordid and disturbing state of affairs.
Though the petitioner was acquitted by the Court of Sessions, Muzaffarpur, Bihar, on June 3, 1968 he was released from the jail on October 16, 1982, that is to say, more than 14 years after he was acquitted.
By this Habeas Corpus petition, the petitioner asks for his release on the ground that his detention in the jail is unlawful.
He has also asked for certain ancillary reliefs like rehabilitation, reimbursements of expenses which he may incur for medical treatment and compensation for the illegal incarceration.
This petition came up before us on November 22, 1982 when we were informed by Shri Goburdhan, counsel for the State of Bihar, that the petitioner was already released from the jail.
The relief sought by the petitioner for his release thus became infructuous but despite that, we directed that a Notice to show cause be issued to the State of Bihar regarding prayers 2, 3 and 4 of the petition.
By prayer No. 2 the petitioner asks for medical treatment at Government expense, by prayer No. 3 he asks for an ex gratia payment for his rehabilitation, while by prayer No 4 he asks for compensation for his illegal detention in the jail for over 14 years.
We expected a prompt response to the Show Cause Notice from the Bihar Government at least at this late stage, but they H offered no explanation for over four months.
The Writ Petition was listed before us on March 31, 1983 when Shri Goburdhan restated that the petitioner had been already released from the jail.
510 We passed a specific order on that date to the effect that the release of the petitioner cannot be the end of the matter and we called upon the Government of Bihar to submit a written explanation supported by an affidavit as to why the petitioner was kept in the jail for over 14 years after his acquittal.
On April 16, 1983, Shri Alakh Deo Singh, Jailor, Muzaffarpur Central Jail, filed an affidavit in pursuance of that order.
Shorn of its formal recitals, the affidavit reads thus: "2.
That the petitioner was received on 25.3.67 from Hazaribagh Central Jail and was being produced regularly before the Additional Sessions Judge, Muzaffarpur and on 30.8.68 the learned Judge passed the following order: "The accused is acquitted but he should be detained in prison till further order of the State Government and I.G. (Prisons), Bihar." (A true copy of the same is attached as Annexure I).
That accused Rudul Sah was of unsound mind at the time of passing the above order.
This information was sent to the Law Department in letter No. 1838 dated 10.5.74 of the Superintendent, Central Jail, Muzaffarpur through District Magistrate, Muzaffarpur. 4.
That the Civil Surgeon, Muzaffarpur, reported on 18.2.77 that accused Rudul Sah was normal and this information was communicated to the Law Department on 21.2.77.
That the petitioner, Rudul Shah was treated well in accordance with the rules in the Jail Manual, Bihar, during the period of his detention.
That the petitioner was released on 16.10.82 in compliance with the letter No. 11637 dated 14.10 82 of the Law Department.
" The Writ Petition came up before us on April 26, 1983 when we adjourned it to the first week of August 1983 since it was not 511 clear either from the affidavit filed by the Jailor or from the order of the learned Additional Sessions Judge, Muzaffarpur, which is annexed to the affidavit as Annexure I, as to what was the basis on which it was stated in the affidavit that the petitioner was of unsound mind or the reason why the learned Additional Sessions Judge directed the detention of the petitioner in jail, until further orders of the State Government and the Inspector General of Prisons.
The writ petition has come up for hearing once again before us today.
If past experience is any guide, no useful purpose is likely to be served by adjourning the petition in the hope that the State authorities will place before us satisfactory material to explain the continued detention of the petitioner in jail after his aquittal.
We apprehend that the present state of affairs, in which we are left to guess whether the petitioner was not released from the prison for the benign reason that he was insane, is not likely to improve in the near future.
The Jailor s affidavit leaves much to be desired.
It narrates with an air of candidness what is notorious, for example, that the petitioner was not released from the jail upon his acquittal and that he was reported to be insane.
But it discloses no data on the basis of which he was adjudged insane, the specific measures taken to cure him of that affliction and, what is most important, whether it took 14 years to set right his mental imbalance.
No medical opinion is produced in support of the diagnosis that he was insane nor indeed is any jail record produced to show what kind of medical treatment was prescribed for and administered to him and for how long.
The letter (No. 1838) dated May 10, 1974 which, according to paragraph 3 of the affidavit, was sent to the Law Department by the Superintendent of the Central Jail, Muzaffarpur, is not produced before us.
There is nothing to show that the petitioner was found insane on the very date of his acquittal.
And, if he was insane on the date of acquittal, he could not have been tried at all for the simple reason that an insane person cannot enter upon his defence Under the Code of Criminal Procedure, insane persons have certain statutory rights in regard to the procedure governing their trial.
According to paragraph 4 of the affidavit, the Civil Surgeon, Muzaffarpur, reported on February 18, 1977 that the petitioner was normal and that this information was communicated to the Law Department on February 21, 1977.
Why was the petitioner not released for over 5&1/2 years thereafter ? It was on october 14, 1982 that the Law 512 Department of the Government of Bihar directed that the petitioner should be released.
Why was the Law Department so insensitive to justice ? We are inclined to believe that the story of the petitioner 's insanity is an afterthought and is exaggerated out of proportion.
If indeed he was insane, at least a skeletal medical record could have been produced to show that he was being treated for insanity.
In these circumstances, we are driven to the conclusion that, if at all the petitioner was found insane at any point of time, the insanity must have supervened as a consequence of his unlawful detention in jail.
A sense of helplessness and frustration can create despondency and persistent despondency can lead to a kind of mental imbalance.
The concerned Department of the Government of Bihar could have afforded to show a little more courtesy to this Court and to display a greater awareness of its responsibilities by asking one of its senior officers to file an affidavit in order to explain the callousness which pervades this case.
Instead, the Jailor has been made a scapegoat to own up vicariously the dereliction of duty on the part of the higher officers who ought to have known better.
This is not an isolated case of its kind and we feel concerned that there is darkness all around in the prison administration of the State of Bihar.
The Bhagalpur blindings should have opened the eyes of the Prison Administration of the State.
But that bizarre episode has taught no lesson and has failed to evoke any response in the Augean Stables.
Perhaps, a Hercules heas to be found who will clean them by diverting two rivers through them, not the holy Ganga though.
We hope (and pray) that the higher officials of the State will find time to devote their personal attention to the breakdown of Prison Administration in the State and rectify the grave injustice which is being perpetrated on helpless persons.
The High Court of Patna should itself examine this matter and call for statistical data from the Home Department of the Government of Bihar on the question of unlawful detentions in the State Jails A tabular statement from each jail should be called for, disclosing how many convicts have been in jail for more than 10 years, 12 years, 14 years and for over 16 years.
The High Court will then be in a position to release prisoners who are in unlawful detention in the jails and to ask the State Government to take steps for their rehabilitation by payment of adequate compensation wherever necessary.
513 That takes us to the question as to how the grave injustice which has been perpetrated upon the petitioner can be rectified, in so far as it lies within our power to do in the exercise of our writ jurisdiction under Article 32 of the Constitution.
That article confers power on the Supreme Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III.
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is "guaranteed", that is to say, the right to move the Supreme Court under Article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right.
It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of Courts, Civil and Criminal.
A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it.
But the important question for our consideration is whether in the exercise of its jurisdiction under article 32, this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right.
The instant case is illustrative of such cases.
The petitioner was detained illegally in the prison for over fourteen years after his acquittal in a full dressed trial.
He filed a Habeas Corpus petition in this Court for his release from illegal detention.
He obtained that relief, our finding being that his detention in the prison after his acquittal was wholly unjustified.
He contends that he is entitled to be compensated for his illegal detention and that we ought to pass appropriate order for the payment of compensation in this Habeas Corpus petition itself.
We cannot resist this argument.
We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government.
Happily, the State 's Counsel has not raised that objection.
The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim.
But we 514 have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour.
In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly violated.
Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention.
One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation.
Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt.
The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield.
If civilization is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy.
Therefore, the State must repair the damage done by its officers to the petitioner 's rights.
It may have recourse against those officers.
Taking into consideration the great harm done to the petitioner by the Government of Bihar, we are of the opinion that, as an interim measure, the State must pay to the petitioner a further sum of Rs. 30,000 (Rupees thirty thousand) in addition to the sum of Rs. 5,000 (Rupees five thousand) already paid by it.
The amount shall be paid within two weeks from today.
The Government of Bihar agrees to make the payment though, we must clarify, our order is not based on their consent.
This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the state and its erring officials.
The order of compensation passed by us is, as we said above, in the nature of a palliative.
We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings.
A full dressed debate on the nice points of fact and law which takes 515 place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sah.
The Leviathan will have liberty to raise those points in that suit.
Until then, we hope, there will be no more Rudul Sahs in Bihar or elsewhere.
H.L.C. Petition allowed.

summary/full:
The petitioner who was detained in prison for over 14 years after his acquittal filed a habeas corpus petition under article 32 of the Constitution praying for his release on the ground that his detention in the jail was unlawful.
He also asked for certain other reliefs including compensation for his illegal detention.
When the petition came up for hearing the Court was informed by the respondent State that the petitioner had already been released from the jail.
Allowing the petition, ^ HELD: The petitioner 's detention in the prison after his acquittal was wholly unjustified.
Article 32 confers power on the Supreme Court to issue directions or orders or appropriate writs for the enforcement of any of the rights conferred by Part III of the Constitution.
Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention.
One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its a violators in the payment of monetary compensation.
The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield.
Respect for the rights of individuals is the true bastion of democracy.
Therefore, the State must repair the damage done by its officers to their rights.
[513 A C, 514 B E] In the circumstances of the instant case the refusal to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly 509 violated.
Therefore, as an interim measure the State must pay to the petitioner a further sum of Rs. 30,000 in addition to the sum of Rs 5,000 already paid by it.
This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials.
[514 B,F,H]


judgement:
Civil Appeal No. 1997 of 1980.
From the Judgment and order the 25th April 1980 of the Calcutta High Court in C.R. No. 1529 of 1979.
518 Shanker Ghose, Sobhan Tagore and P.K. Mukherjee for the Appellant.
L.N. Sinha, Attorney General, V. Subba Rao and R.S. Poddar for the Respondent.
R.B. Mehrotra for the Substituted Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by certificate from the Calcutta High Court raises the question whether a decree for permanent alimony passed under section 37 of the (hereinafter referred to as 'the Act '), is wiped out with the death of the husband judgment debtor.
Respondent Dorothea and one Prafulla Kumar Mitra were married under the Special Marriage Act, 1872, in January 1952.
Respondent asked for divorce in 1961 and obtained a decree on May 2, 1962, to the effect: "The petitioner 's (Dorothea Mitra 's) marriage with the respondent Prafulla Kumar Mitra be dissolved by a decree of divorce.
The petitioner do get Rs. 300 p.m. as maintenance from the respondent to be paid by the 1st week of each month following for which it is due until she re marries . ." Respondent levied execution of the decree and the same was compromised and payment of the arrears was undertaken to be made in instalments.
Prafulla Kumar Mitra executed a Will on March 31, 1965, but made no provision therein for satisfaction of the maintence decree.
He died on April, 3, 1965, and the appellant who was the executrix under the Will got it duly probated.
There is no dispute that the executrix paid the maintenance in December 1975 for a period after the death of Prafulla Kumar Mitra.
But since no payment was made thereafter, respondent levied execution in Matrimonial Case No. 1/77 claiming recovery of arrears of Rs. 19,500.
Appellant objected to the claim under section 47 of the Code of Civil Procedure by pleading that the order of alimony not being charged, the death of Parfulla Kumar Mitra has extinguished the claim of the purported decree holder.
The executing court overruled the objection whereupon the appellant invoked the revisional jurisdiction of the High Court.
A Division Bench agreed with the executing Court but while dismissing the revision application, granted certificate of appeal to this Court.
519 The sole controversy is whether the order for alimony got extinguished with the death of Prafulla Kumar Mitra.
Admittedly, the order was made in exercise of powers under section 37 of the Act.
lt provides: "37.
Permanent alimony and maintence (1) Any Court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband 's property, such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as having regard to her own property, if any her husband 's property and ability and the conduct of the parties, it may seem to the Court to be just; (2) If the District Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as it may seem to the Court to be just (3) If the District Court is satisfied that the wife in whose favour an order has been made under this section has remarried or is not leading a chaste life, it shall rescind the order.
" The language of the section does not warrant the conclusion that there is extinguishment of the decree for alimony upon the death of the judgment debtor husband.
We have been told at the Bar that there is no decision on the point and, therefore, English decisions should be considered for deciding the matter.
Section 37 of the Act more or less corresponds to the provisions of sections 19, 20 and 22 of the English Matrimonial Causes Act, 1950, except that there is nn corresponding provision in the English Act for sub section
(3) of the Indian Act.
A close look at sub sections
(2) and (3) of section 19 of the English Act will indicate that maintenance can be required to be paid for a term not exceeding the life of the 520 wife or during the joint lives of the husband and tho wife.
These two sub sections of the English Act read thus: "(2).
On any petition for divorce or nullity of marriage the Court may, if it thinks fit, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money or annual sum for any term not exceeding her life, as having regard to her fortune, if any, to the ability of the husband and to the conduct of the parties, the court may deem to be reasonable.
On any decree for divorce or nullity of marriage, the court may, if it thinks fit, by order direct the husband to pay to the wife, during their joint lives, such monthly or weekly sum for maintenance and support of the wife as the court may think reasonable, and any such order may either be in addition to or be instead of an order made under the last foregoing sub section.
" We have also been referred to some other English statutes where this distinction has been manintained.
In case of a direction for payment during the joint lives, there can be no dispute that on the death of one of the spouses the obligation under the decree ceases.
English Courts have taken the view that even where a direction is for payment during the life of the wife, it abates with the death of the husband.
In paragraph 891, Vol. 13, Halsbsury ' Laws of England, 4th Edn., it has been said that "in the absence of an order directing security for periodical payments the court has no jurisdiction to order a man 's personal representatives to make payments for his children after his death." The decision in Sugden vs Sugden,(1) of the Court of Appeal has been relied upon for this view.
Lord Denning in the leading judgment said: "There is no difficulty in an ordinary action in determining when the right or liability accrued due; but there is more difficulty in proceedings in the Divorce Court.
In that court there is no right to maintenance, or to a secured provision, or the life, until the court R makes an order directing it.
There is therefore no cause of action for such matters until an order is made.
In 521 order that the cause of action should subsist at the death, the right under the order must itself have accrued at the time of death.
Thus a cause of action subsists against a husband for arrears of maintenance due at his death, but not for later payments.
" This view of proceedings in the Divorce Court is supported by the decision of Hodson, J. in Dipple vs Dipple,(1) where he pointed out that "all that the wife had was the hope that the court would in its discretion order a secured provision .
In the present case, there was no right or liability subsisting against the father at the time of his death.
He had paid everything up to that time.
If there had been any arrears of maintence payable by him at that time, then no doubt they would be payable by his estate after his death under section 1 (1) of the Act of 1934; but there were no arrears.
There was nothing, therefore, to come within the Act of 1934 at all.
The right to maintenance after his death must come from the terms of the order itself or not at all." Under the order in Sugden 's case the maintenance of 1s.
a year for the wife was payable by the husband during their joint lives.
On the terms of the order, therefore, the liability was to come to an end upon the death of the husband.
We have no difficulty in accepting the submission of Mr. Ghosh for the appellant that matrimonial proceedings abate on the death of either party and legal representatives cannot be brought on record and the proceedings cannot be continued any further.
Bowen, L.J. in Stanhope vs Stanhope,(1) very appropriately said: "A man can no more be divorced after his death, than he can after his death be married or sentenced to death.
Marriage is a union of husband and wife for their joint lives, unless it be dissolved sooner, and the court cannot dissolve a union which has already been determined.
No person can dissolve a marriage which is dissolved by act of God.
If a decree nisi is made, and the husband dies before it is made absolute, he dies while he is still at law a husband, and his wife becomes his widow.
Thus how can a decree be made which would displace a dissolution of the marriage by death, and untie a knot that no longer exists ? How can a woman, once a widow, 522 be converted into a divorcee, unless there is some enactment enabling the court such a retrospective order" The question to ask at this stage is, while a matrimonial proceeding comes to an end with the death of either spouse, where the proceeding has terminated and a decree has emerged, would the decree also abate.
There can be no manner of doubt and it has also been fairly conceded before us that where maintenance has been made a charge on the husband 's estate, the death of the husband would not at all affect the decree and notwithstanding such death, the estate can be proceeded against for realisation of the maintenance dues for post death period.
Mr. Ghosh had to concede that if there be a decree arising out of a civil action death would not result in wiping out the decree.
If decree arising not out of a matrimonial dispute would not abate and the estate of the judgment debtor would be liable for its satisfaction and a decree for alimony or maintenance would not abate when the same is charged upon the husband 's estate, we asked Mr. Ghosh to indicate the justification for his contention that a decree for maintenance or alimony not charged upon the husband 's estate would abate with the death of the husband.
Apart from relying on the English decisions, Mr. Ghosh was not able to indicate any independent reason.
We have not been able to find any legal principle in the cases placed before us except that the view taken in the English Courts appears to be based on precedents.
There is no rationality in the contention that a decree for maintenance or alimony gets extinguished with the death of the husband when any other decree even though not charged on the husband 's property would not get so extinguished.
A decree against the husband is executable against the estate of the husband in the hands of the heirs and there is no personal liability.
In law a maintenance decree would not make any difference.
The decree indicates that maintenance was payable during the life time of the widow.
To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit of the decree and the appellant has taken a stand that though the widow is alive, the decree obtained by her would become ineffective with the passing away of the husband.
523 The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence.
For the interpreation of a provision of this statute there is no warrant to be guided by English decisions.
There is no ambiguity in section 37 for the interpretation of which it is necessary to go beyond the provision itself.
It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefits under a decree to be lost unless there be any special reason for it.
In incorporating a provision like section 37 in the Act, Parliament intended to protect the wife at the time of divorce by providing for payment of maintenance.
If the husband has left behind an estate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying the decree.
We are incline(1 to agree with the view of the Calcutta High Court that the decree in the instant case was not extinguished with the death of Prafulla Kumar Mitra and the assets left behind by him are liable to be proceeded against in the hands of his legal heirs for satisfaction of the decree for maintenance.
Before the Calcutta High Court it had been contended that the phrase 'at the instance of either party ' occurring in sub section
(2) of section 37 would cover the husband and the wife and no one else and on this meaning given to the phrase, support was sought for the contention that the order of maintenance was intended to continue only during the life of the husband.
This question was left open by the High Court.
We, however, see no justification for the view that the phrase should be confined to the spouses.
There is no dispute that the order for maintenance can be varied or rescinded with change of circumstances.
Sub section (3) clearly provides that on remarriage or on a finding that the wife is not leading a chaste life, the order of maintenance can be rescinded.
Upon the husband 's death his estate passes on to his legal heirs and the intention of the Legislature being clear that upon remarriage or non leading of a chaste life, the benefit conferred by the statute should empire and the estate should become free from the liability of satisfying the decree for maintenance, the application for varying, modifying or rescinding the order for maintenance can be made even by those who have succeeded to the husband 's estate and the estate can be freed from the liability.
There is nothing in the provision to support the view that the words 'either party ' should be confined to the 524 spouses.
Examining the scheme of the statute and the purpose for which such a provision has been made, we are inclined to agree with the learned counsel for the respondent that the words 'either party ' would also cover the legal heirs who have stepped into the shoes of the spouses under the law and such persons would also be competent to ask for variation, modification or rescission of the order for maintenance.
That term would also include the holders of the estate with lawful title for the time being.
Once such a meaning is given to the phrase, the support which Mr. Ghosh wanted to draw by restricting the phrase to spouses and contending that it indicated the legislative intention that the order of maintenance should survive only until the life time of the husband, loses force.
We accordingly dismiss the appeal and confirm the order of Calcutta High Court.
The respondent shall be entitled to her costs throughout.

dataset_name: IN-Abs

summary/full:
Respondent Dorothea and one Prafulla Kumar Mitra were married under the Special Marriage Act, 1872, in January 1952.
Respondent asked for a divorce in 1961 and obtained a decree on May 2, 1962 and as per the decree she was to be paid Rs. 300.0 per month as alimony until she remarries.
Respondent levied execution of the decree and the same was compromised and payment of arrears was undertaken to be made in instalments.
On March 31, 1965, Mitra executed a will but made no provision therein for the satisfaction of the maintenance decree.
He died on April 3, 1965 and the appellant who was the executrix under the will got it duty probated.
Since no payment was made by the executrix after December 1975, rcspmldent filed execution in Matrimoniai Case 1 of 1977 claiming recovery of Rs. 19,500.00.
Appellant objected to the claim under Section 47 of the Code of Civil Procedure by pleading that the order of alimony not being charged the claim under decree for alimony abated with the death of Mitra.
The executing court overruled the objection and the Division Bench of the Calcutta High Court, while dismissing the revision petition, however, granted certificate of appeal to this Court.
Dismissing the appeal, the Court ^ HELD :1:1.
The language of Section 37 does not warrant the conclusion that there is extinguishment of the decree for alimony upon the death of the judgment debtor husband.
[519 G] 1:2.
The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence.
There is no ambiguity in Section 37 for the interpretation of which it is necessary to go beyond the provision itself.
It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefits under a decree 517 to be lost unless there be Act, any special reason for it.
In incorporating a provision like Section 37 in the Act, Parliament intended to protect the wife at the time of divorce by providing for payment of maintenance.
If the husband has left behind an estate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying ' the decree.
[523 A C] 1:3.
There is no doubt that matrimonial Proceedings abate on the death of either spouse and legal representatives cannot be brought on record and the proceedings cannot be continued any further and where maintenance has been made a charge on the husband 's estate, the death of the husband would not at all effect the decree and notwithstanding such death, the estate can be proceeded against for realisation of the maintenance dues for post death period.
But, there is no rationality in the contention that where the matrimonial proceedings have terminated during the lifetime of the husband and a decree has emerged such a decree for maintence or alimony gets extinguished with the death of the husband when any other decree even though not charged on the husband 's property would not get so extinguished.
A decrees against the husband is executable against the estate of the husband in the hands of the heirs and ' there is no personal liability.
In law a maintenance decree would not make any difference.
The decree indicates that maintenance was payable during the life time of the widow.
To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit of the decree.
Therefore, the assets left behind by Mitra are liable to be proceeded against in the hands of his legal heirs for satisfaction of the decree for maintenance.
[522 C H] 2.
The phrase "at the instance of either party" occurring in sub section (2) of Section 37 of the Act are not confined to the spouses only.
Sub section 3 clearly provides that on remarriage or on a finding that the wife is not leading a chaste life, the order of maintenance can be rescinded.
Upon the husband 's death his estate passes on to his legal heirs and intention of the Legislature being clear that upon remarriage or non leading of a chaste life the benefit conferred by the statute should expire and the estate should become free from the liability of satisfying the decree for maintenance, the application for varying.
modifying or rescinding the order for maintenance can be made even by those who have succeeded to the husband 's estate and the estate can be freed from the liability.
Examining the scheme of the statute and the purpose for which such a provision has been made, it is clear; that the words `either party ' would also cover the legal heirs who have stepped into the shoes of the spouses under the law and such persons would also be competent to ask for variation, modification or rescission of the order for maintenance.
That term would also include the holders of the estate with lawful title for the time being.
[523 E H, 524 A B]


judgement:
Appeal No. 219 of 1953.
Appeal from the judgment and decree dated June 26, 1952, of the Bombay High Court in Appeal No. 20 of 1952 arising out of the judgment and decree dated December 17, 1951, of the said High Court in its ordinary Original Civil Jurisdiction in Suit No. 1623 of 1948.
C. K. Daphtary, Solicitor General of India, M. N. Gharekhan and M. section K. Sastri, for the appellants.
H. D. Banaji, D. P. Madon, section N. Andley, Rameshwar Nath and J. B. Dadachanji, for the respondents.
January 22.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal arises out of a suit instituted by the appellants in the High Court of Bombay for damages for conversion estimated at Rs. 4,71,670 15 0.
The suit was decreed by Shah J. sitting on the Original Side, but his judgment was reversed on appeal.
by Chagla C.J. and Gajendragadkar J.
Against this judgment, the plaintiffs have 57 440 preferred the present appeal on a certificate under article 133(1)(a) of the Constitution.
Messrs. Maitland Craig Lubricants Ltd. is an American Company engaged in the manufacture and sale of lubricants.
It carried on business in India with its head office at Calcutta and a branch office at Bombay.
The second plaintiff, H. J. Leach, was employed during the years 1933 to 1935 in the Bombay branch of the said Company.
Subsequent thereto, the Company closed its Bombay branch, and eventually wound up its Calcutta office as well, and thereafter its business was taken over firstly by Ewing and Company and then by the defendants.
After he left the service of Maitland Craig Lubricants Ltd., Mr. Leach started business as seller of lubricants on his own account and was importing them through the defendants.
On June 6, 1941, they entered into an agreement, exhibit A, under which Mr. Leach was given an exclusive right to sell lubricants of the make of Maitland Craig Lubricants Ltd., within the limits of Bombay Presidency, Central Provinces, Rajputana and such parts of Central India and Hyderabad as might be determined by the defendants.
The agreement was to continue for a period of five years "unless sooner determined in the manner hereunder provided.
" Clause 14 of the agreement runs as follows: "Notwithstanding anything hereinbefore contained this agreement shall be terminable by either of the parties hereto upon giving to the other three calendar months previous notice in writing expiring at any time but without prejudice to the rights and liabilities of the parties respectively which shall have accrued prior to such termination.
" Clause 16 provides that the agreement was personal to the selling agent, and that he was not to assign or attempt to assign his rights thereunder without the consent of the defendants in writing first obtained.
It is common ground that the dealings between the parties continued on the basis of this agreement during the relevant period.
On March 18, 1944, the first plaintiff, which is a Joint Stock Company, was incorporated under the provisions 441 of the Indian Companies Act, and on March 30, 1944, the second plaintiff assigned his business to it.
On June 13, 1945, the defendants wrote to the second plaintiff that they were cancelling the agency constituted under the agreement dated June 6, 1941, as he had assigned the same to the first plaintiff without obtaining their consent in writing as provided therein.
Before that date, however, the defendants had placed orders for import from America of certain goods which the plaintiffs had required, but these goods were actually received by them after the cancellation of the contract.
The plaintiffs called upon them to deliver those goods to them, but they refused to do so.
Thereupon, the plaintiffs instituted the present suit for damages for conversion alleging that the goods in question were due to them under Government quotas comprised in Nos.
P.L. 1004 to 1007, and that the defendants who had ordered them on their behalf had themselves no title to them.
The plaintiffs also averred that in importing those goods the defendants were acting as their agents.
The defendants repudiated this claim.
They contended that far from they being the agents of the plaintiffs, it was the second plaintiff who was their agent, and that the property in the goods was with the defendants and that the action for damages for conversion was not maintainable.
The suit was tried by Shah J. who held that the plaintiffs were not the agents of the defendants, that the goods in question had been imported by the latter on behalf of the former, and that in refusing to deliver the same to them, the defendants were guilty of conversion.
He accordingly passed a decree referring the suit to the Commissioner for ascertaining the damages.
On appeal, Chagla C.J. and Gajendragadkar J. held that on the terms of the agreement dated June 6, 1941, on which the suit was based, the title to the goods imported by the defendants vested in them, and that it would pass to the plaintiffs only when the defendants endorsed the shipping documents in their favour, and that as that had not been done, the claim for damages on the basis of conversion was misconceived.
They accordingly allowed the appeal, and dismissed the suit.
442 Now, the contention of the appellants before us is that on the facts proved, they were entitled to damages on the basis of conversion.
There is no dispute as to the position in law.
Before the plaintiffs can maintain an action in trover, they must establish that they had title to the goods in question and that further they were entitled to possession thereof when they called upon the defendants to deliver them.
If the parties stood in the relation of sellers and purchasers with reference to the transactions, then the plaintiffs must show that the property in the goods, which initially was with the defendants, passed to them in accordance with the provisions of the Sale of Goods Act.
If, however, the defendants imported the goods as agents of the plaintiffs, then the title to them could undoubtedly be with the latter, and the only question then would be whether the former were entitled to retain possession, as they would be if they had paid the price of the goods on behalf of the principal, and had not been reimbursed that amount.
This question, however, would not arise on the facts of this case, as the defendants denied the title of the plaintiffs to the goods, and there was no refusal by the latter to pay the price.
The main question that arises for determination, therefore, is as to the relationship in which the parties stood with reference to the suit transactions.
It is conceded that to start with, it is the agreement, exhibit A, that governs the rights of the parties.
It is therefore necessary to examine its terms to ascertain the true relationship of the parties thereunder.
It has been already mentioned that under this agreement Mr. Leach was constituted the selling agent of the defendants in certain areas specified therein.
Under exhibit A, the second plaintiff was not to sell the goods below a certain price, and they were also to be sold with the mark, Mait land Craig Lubricants Ltd. The course of business was that the second plaintiff used to intimate to the defendants his requirements.
They would then import those goods in their own names from America under c.i.f. contracts.
After importing them, they would fix their own price for those goods and 443 endorse the shipping documents in favour of the second plaintiff, who would be entitled to clear them at the harbour on payment of 80 per cent.
of the price, the balance of 20 per cent.
being payable on the delivery of the goods by him to his purchasers.
The sales to be effected by the second plaintiff within the area to his own customers were matters which concerned only him and his purchasers.
The defendants had nothing to do with them.
Under cl. 6, the second plaintiff had to "keep the value of his stocks at all times fully insured against fire risk.
" Clause 13 is as follows: " The relationship between parties hereto shall be that of principal and principal only and the selling agent shall have no authority whatsoever except such as may be conferred upon him in writing by the firm to transact any business in the name of the firm or to bind the firm by any contract, agreement or undertaking with or to any third party." In contrast with these terms, there is cl. 4, which provides that the defendants would themselves supply to the Indian Stores Department all their requirements of lubricants within the territory allotted to the second plaintiff, who was to act as their agent in clearing the goods and delivering them to the authorities.
And for this, the second plaintiff was to be paid a commission.
It is clear that the agreement read as a whole is a composite one consisting of two distinct matters.
So far as cl. 4 is concerned, the second plaintiff was merely an agent of the defendants.
As regards the other clauses, the true relationship is, as stated in cl. 13, that the second plaintiff was purchaser of the goods from the defendants, and the conditions relating to the minimum price at which they could be sold and the marking of the goods with the name of Maitland Craig Lubricants Ltd. were only intended to protect their trade interests but that once the shipping document were endorsed by the defendants to the second plaintiff, he became the owner of those goods.
The object of the insurance clause was obviously to safeguard the interests of the defendants with reference to the balance price payable by the second plaintiff.
In this case, we 444 are not concerned with any goods consigned by the defendants for supply to the Government under cl. 4 but with goods which were imported by them for meeting the requirements of the plaintiffs.
The relationship of the parties with reference to those goods, if it is governed by this agreement, is undoubtedly that neither party is agent of the other, and that the defendants are the sellers and the plaintiffs are the purchasers.
If so, the title to the goods would pass to the plaintiffs only when the defendants appropriated them to the contract, as for example, by endorsing the shipping documents, and as that had not been done, the claim for damages on the ground of conversion would be misconceived.
The learned Solicitor General who appeared for the appellants, did not dispute that this was the position under exhibit A.
But he contended that the relationship of seller and purchaser created by the agreement became modified when the Government introduced the licence system.
That was introduced in August ,September, 1941, while the war was on, with a view to regulate and control imports.
The system adopted was that every importer was required to give a statement as to they extent of his import business during the preceding years, and on the basis of that statement, a licence was given to him to import up to a limit.
On September 26, 1941, the second plaintiff applied to the Controller for a licence to import lubricants stating that he had been doing that business for seven years and giving particulars as to the volume of his business.
Sometime in November, a licence was granted to him by the Government.
The defendants also applied for a licence to import lubricants based on the volume of their business and obtained it.
That licence did not include the quantity which they sold to the second plaintiff, and thus the two licences were mutually exclusive.
Mr. Leach would have been himself entitled under the licence to import goods directly from America, but he chose to import them through the defendants as before, because under the terms of the agreement, exhibit A, he would have to pay only 80 per cent.
of the price when clearing the goods.
There was, 445 however, this change in the character of the transaction, that whereas before the licence system the defendants were the purchasers from American Companies under c.i.f. contracts and they then sold the goods to the second plaintiff on a price fixed by them, under the licence system the price payable to them was only what they themselves had to pay to the American sellers with an addition by way of commission on the transaction.
Now, the argument of the appellants is that as they were the persons entitled to import the goods under the licence granted to them, in importing them on their requisition the defendants must be held to have acted for them, and that the relationship between them was no longer one of seller and purchaser under exhibit A but of agent and principal.
To this, the answer of Mr. Banaji, learned counsel for the respondents, was twofold.
He contended firstly that in applying for and obtaining the licence in his own name, the second plaintiff was merely acting as the agent of the defendants, and secondly that the present contention was not raised in the plaint and was, therefore, not open to the appellants.
On the first contention he referred us to the correspondence which passed between the parties at the relevant period.
On September 5, 1941, the defendants wrote to the second plaintiff to send particulars of certain shipments consigned to him so that they could include them in their application for licence, and on September 11, 1941, they further wrote to him that those goods were not to be included in hi,, application for licence.
But the second plaintiff was obviously not agreeable to it, and actually included those very shipments in his application for licence dated September 26, 1941.
The defendants did not pursue the matter further, and wrote to the second plaintiff or December 10, 1941, to intimate to them the number and date of his import licence and continued to import goods for him on the basis of that licence.
Counsel for respondents relied on a letter dated December 11, 1941 in which the defendants advised the second plaintiff to join a group of oil merchants, which was to be formed at Bombay, but that was obviously by way of adviced 446 to him as a customer.
This evidence is too inconclusive and too slender to support the contention that the second plaintiff obtained the licence as the agent of the defendants.
On the other hand, if the true position of the second plaintiff under exhibit A was that he was a. purchaser of goods, then the sales by him of those goods were as owner and the licence issued to him on the basis of those sales must have been given to him in his own right and not as agent of the defendants.
This wag the finding of Shah J. and that has not been reversed on appeal, and we are in agreement with it.
It is next contended that the entire plaint is framed on the footing that the rights of the parties are governed by exhibit A, that there is no averment therein that that agreement had been cancelled or modified, and that a new agreement had been substituted after the licence system was introduced, that the evidence of Mr. Leach in the box was also that exhibit A was in force throughout the period, and that therefore it was not open to the appellants now to contend that the rela tionship of seller and purchaser under exhibit A had been altered into one of agent and principal.
It is true that the plaint proceeds on the basis that exhibit A is in force, and there is no allegation that it had been modified.
But exhibit A had not been wholly abandoned.
It was still in force governing the relationship of the parties in respect of various matters such as delivery of goods on payment of 80 per cent.
of the price.
The plaint does refer to the introduction of the licence system, and the defendants clearly knew as much of the true position thereunder as the plaintiffs, and there could be no question 's surprise.
Under the circumstances, if the rights of the parties had to be determined on the basis of the licence system, we would have hesitated to non suit the appellants merely on the ground that the effect of that system had not been expressly stated in the plaint.
But then, the licence system itself came to an end in March April, 1942, and was replaced by what is known as " Lease and Lend " scheme.
It was under this scheme that the goods which form the subjectmatter of this litigation were imported, and we have therefore to examine what the rights of the parties 447 are with reference to the incidents of that scheme taken along with exhibit A, which is admitted by the appellants to have been in force.
This scheme was introduced by the Government of India as a war measure to facilitate the import of certain essential goods and to conserve them for the effective prosecution of the war.
Oil and lubricants were among the goods which were controlled under this scheme.
Under it, the Government prohibited the direct import of oil and lubricants from America through private agencies, whether individuals, firms or companies and took upon itself to import the required quantity.
An association of importers and dealers in Calcutta called the Central Lubricants Advisory Committee (C.L.A.C.) was formed, and importers were to write to the Committee what quantity they required to be imported on their behalf.
This Committee was a private body, and served as a liaison between the importers and the Government.
A similar Committee was formed at Bombay called the Bombay Lubricants Advisory Committee (B.L.A.C.).
The procedure adopted in the import of goods was this: the importers were to state their requirements to the Committee which sent the same to the Government.
Then on intimation given by the Government authorities, the dealers would have to make deposits on account of the price to be paid for the goods.
The Government had a purchasing agent in America and he would be required by them to purchase the requisite goods and to arrange to get them transhipped to the destinations in India mentioned by the several dealers.
The shipping documents would be taken in the name of the Government and on payment of the bills endorsed over to the importer for clearance at the harbour.
The features of the system to be noticed are that it was the Government who was the importer of the goods and the dealers became entitled to the goods only on the shipping documents being endorsed to them by the Government.
Now, so far as the plaintiffs are concerned, the facts are that they made no deposits with the Government, 58 448 and their names were not in the list of traders for whom the Government imported the goods.
They had direct dealings only with the defendants and sent their requirements to them.
The defendants would in their application to the Government include what the plaintiffs required as well as what they themselves required and make the necessary deposits for all the goods.
But all that would stand only in their name.
Though it would be possible to ascertain by reference to the correspondence between the parties which of the orders placed by the defendants with the Government related to the requirements of the plaintiffs, so far as the Government itself was concerned it knew only of the defendants as importers, and it was in their name that.
it would endorse the shipping documents, and it was only when the defendants in their turn endorsed the same to them that the plaintiffs would get title to the goods, and the evidence of Mr. Leach makes it clear that this had not been done, as regards the shipments with which the suit is con cerned.
This is what he says in his deposition. " The goods were shipped all to the order of the Government of India Separate documents were drawn up in respect of the consignments which were to be supplied to each of the trader according to his requirement submitted to Government.
The traders who submitted their requirements cleared the goods by paying the amount of the bills.
The Government did not make any allocation to me.
I depended on the defendants for obtaining my requirements from the Government.
I did not make any cash deposit as required of the dealer.
1 made no deposit with the Government in respect of the quantity which I wanted.
The entire deposit was made with the Government by the defendants even in respect of my requirements.
The defendants endorsed over the documents in my favour for goods which were meant for me.
Excepting for the admitted portions the documents for remaining part of PL.
1004 to 1007 were not handed over to me or endorsed in my favour, except to the extent to which the goods were delivered," 449 The evidence of Sir John Burder for the defendants was "the shipping documents were received in the name of the defendants ".
It is thus clearly established that with reference to the goods comprised in P.L. 1004 to 1007, which formed the subject matter of the suit, the shipping documents had not been made out in the name of the plaintiffs, nor had the defendants in whose names they were taken, endorsed the same to them.
That being so, unless the plaintiffs established that the defendants were importing the goods as their agents, they would not have title to them, and the claim for damages on the basis of conversion must fail.
We should mention that the appellants relied on some of the letters written by the defendants as showing that they recognised the plaintiffs as having the title to the goods.
Thus, on August 12, 1944, the defendants wrote to the plaintiffs " We confirm that the consignment is for you ", and on March 24, 1945, they wrote, " We enclose herewith a statement showing quantities and grades that have been ordered by Government on your account against order P.L. 1006/10" But these statements are quite consistent with the position of the defendants as sellers who had ordered the goods on the requisition of the plaintiffs, and do not import that title thereto had passed to them, which could be only after the goods came into existence and were appropriated.
That did not happen in this case, and the shipping documents continued in the name of the defendants.
We therefore agree with the learned Judges that on the pleadings and on the evidence the claim for damages on the footing of conversion must fail.
That would entail the dismissal of this appeal, but the plaintiffs have applied to this Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non delivery of the goods.
The respondents resist the application.
They contend that the amendment introduces anew cause of action, that a suit on that cause of action could now be barred by limitation, that the plaintiffs had ample opportunity to amend 450 their plaint but that they failed to do so, and that owing to lapse of time the defendants would be seriously prejudiced if this new claim were allowed to be raised.
There is considerable force in the objections.
But after giving due weight to them, we are of opinion that this is a fit case in which the amendment ought to be allowed.
The plaintiffs do not claim any damages for wrongful termination of the agreement, exhibit A, by the notice dated June 13, 1945.
What they claim is only damages for non delivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice.
Clause 14 of the agreement expressly reserves that right to the plaintiffs.
The suit being founded on exhibit A, a claim based on Cl.
14 thereof cannot be said to be foreign to the scope of the suit.
Schedule E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods, and the damages claimed are also stated therein.
The plaintiffs seek by their amendment only to claim damages in respect of those consignments.
The prayer in the plaint is itself general and merely claims damages.
Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint.
What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods.
It is no doubt, true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application.
But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.
In Charan Das vs Amir Khan (1) the Privy Council observed: " That there was full power to make the amendment cannot be disputed, and though such a power (1) [1920] 47 I.A. 255.
451 should not as a, rule be exercised where the effect is to take away from a defendants, legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out weighed by the special circumstances of the case.
Vide also Kisan Das vs Rachappa In the present case, apart from the contents of the plaint already set out, there is the fact that the defendants cancelled the contract without strictly complying with the terms of cl. 14.
The ground on which they repudiated the contract was that the second plaintiff had assigned his interests to the first plaintiff ; but the record shows that subsequent to the assignment the defendants had business transactions with both the plaintiffs and therefore the ground for cancellation appears to have been a mere device to deprive the plaintiffs of the benefits of the orders which they had placed.
We are of opinion that the justice of the case requires that the amendment should be granted.
The plaintiffs will accordingly be allowed to amend the plaint as follows: " 12(a) In the alternative and without prejudice to the claim on the footing of conversion, the plaintiffs say that by reason of the facts aforesaid, there was a contract between the parties whereby the defendants undertook to supply and deliver to the plaintiffs (or either of them) the goods ordered out by Government on their (the plaintiffs ') account and included in the quotas PL.
1004 PL.
The said goods arrived in Bombay, but the defendants failed and neglected to deliver the same though demanded, and in fact repudiated their obligation to deliver.
The plaintiffs say that they were always ready and willing to pay for and take delivery of the same.
The defendants at all material times well knew that the plaintiffs had purchased the same for resale and for fulfilment of contracts of sale and supply.
The plaintiffs claim damages as per particulars.
" This appeal must accordingly be allowed, the decree under appeal set aside, and the suit remanded for (1) Bombay 644.
452 rehearing to the trial court.
The defendants will file their written statement to the amended claim and the suit will be tried and disposed of in accordance with law.
There remains the question of costs.
As the plaintiffs are getting an indulgence, they must pay the costs of the defendants both in the suit and in the appeal to the Bombay High Court.
So far as costs of this appeal are concerned, as the defendants persisted in their contention that the plaintiffs were only acting as their agents, a contention which, if upheld, would have furnished a conclusive answer to the amended claim as well, we direct the parties to bear their own costs in this Court.
Appeal allowed.
Case remanded.

summary/full:
The appellants filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported the goods but refused to deliver them to the appellants.
The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not agent and principal and that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants ' contracts.
In appeal before the Supreme Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nondelivery of the goods.
All the allegations necessary for sustaining a claim for damages for breach of contract were already present in the plaint and the only allegation lacking was that the appellants were, in the alternative, entitled to claim damages for breach of contract by the non delivery of the goods.
But a fresh suit on the amended claim was barred by limitation on the date of the application.
Held, that this was a fit case in which the amendment should be allowed.
The fact that a fresh suit on the amended claim was (1) A.I.R. [1954] Raj. 211.
439 barred by limitation is a factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, and does not affect the power of the court to order it, if that is required in the interests of justice.
Charan Das vs Amir Khan, L.R. 47 I.A. 225 and Kisan Das vs Rachappa, Bombay 644, followed.
To maintain an action in trover the plaintiffs must establish that they had title to the goods in question and that further they were entitled to possession thereof when they called upon the defendants to deliver them.
If the parties stood in the relation of sellers and purchasers with reference to the transactions, then the plaintiffs must show that the property in the goods, which initially was with the defendants had passed to them in accordance with the provisions of the Sale of Goods Act.
If, however, the defendants imported the goods as agents of the plaintiffs, then the title to them would undoubtedly be with the latter, and the only question then would be whether the former were entitled to retain possession, as they would be if they had paid the price on behalf of the principals, and had not been reimbursed that amount.


judgement:
ition Nos. 4195 and 4445 of 1978, 8831, 8942 of 1981, 342 717, 803 804, 1005 1242, 6501 6746, 2860 3049, 3169 71, 3413 63, 7133 35 of 1982.
V.M. Turkunde and Naunit Lal for the petitioners in W.P. Nos.
4196/82, 6501 6746, 2860 3049, 342 717/82, and 8831/81.
S.S. Javali, B.P. Singh and Raniit Kumar for the petitioners in W.P. Nos.
4445/78, 8942, 1005 1242, 3413 3463 and 7133 35/82.
Sanjay Kaul and Ashok Panda for the petitioners in W.P. No. 3169/82.
L.N. Sinha, Attorney General and R.K. Garg for the respondent in W.P. Nos. 4195/82 and 4445/78.
Altaf Ahmed for the respondents in all other matters.
This challenge is met by the State of Jammu & Kashmir with the short answer that the impugned Act being a measure of agrarian reform, Article 31A of the Constitution precludes a challenge to its validity on the ground that it violates the provisions contained in Articles 14,19 and 31.
The petitioners are mostly small land holders owning agricultural lands in the State of Jammu & Kashmir.
The Government of Jammu & Kashmir introduced several land reforms in the State, beginning with Tenancy Act VII of 1948.
Jagirs and Muafis were abolished under that Act as a result of which, approximately 9()00 owners of agricultural lands lost their proprietary interest in about 4.5 lakh acres of land.
The State Legislature thereafter passed the Tenancy (Amendment) Act VII of 1948, the Tenancy (Amendment) Act of 1950, the Big Landed Estates Abolition Act of 1950, the Tenancy (Amendment) Arts of 1956, 1962 and 1965, the J & K Tenancy (Stay of Ejectment) Proceedings Act 1966, the Agrarian Reforms Act of 1972 and finally the impugned Act, 17 of 1976.
The last named Act received the assent of the Governor on August 21, 1976.
It was amended by the Amendment Act of 1978 which received the assent of the Governor on April 7, 1978.
We will presently explain in brief the nature of the provisions of the impugned Act but, before we do so, it will be useful to acquaint oneself with the various steps which the Government of Jammu & Kashmir took in the direction of land reforms, by passing the Acts to which we have referred earlier.
After abolishing the Jagirs and Muafis by the Tenancy Act of 1948, restrictions were placed on the right of the landlord to eject the tenant, by the Tenancy (Amendment) Act of 1948, The landlord was, however, given the right to resume the land from his tentant if he required it bona fide for personal cultivation subject to ceiling on his right of resumption.
The Big Landed Estates Abolitions Act of 1950 was quite a revolutionary piece of legislation in the context of those times.
A ceiling was placed by that Act on the holding of proper ties at 182 Kanals, which comes roughly to 23 acres.
The land in excess of the ceiling was expropriated without the payment of any compensation and the tiller of the soil became the owner of the excess land.
By subsequent legislations, tenants were given protec tion in the matter of rents, certain classes of non occupancy tenants came to be regarded as protected tenants and landlords were given 539 a further opportunity for making applications for the resumption of land.
Thousands of applications were filed by the landlords under the provisions of the Tenancy Amendment Act of 1965 for resumption of lands from tenants but, later, further proceeding in those applications were stayed.
The Janki Nath Wazir Committee pointed out anomalies in the various measures taken by the State Legislature by way of the land reforms and it made recommendations in order to remove the inequities from which the land reforms legislation undertaken by the State suffered.
The State Government constituted a Land Commission under the Chairmanship of the then Revenue Minister, Syed Mir Kasim, in 1963 to examine the Wazir Committee 's Report.
In 1967, the Sate Government appointed another Commission of Inquiry, with Shri P.B. Gajendragadkar, retired Chief Justice of the Supreme Court, as its Chairman.
The Gajendragadkar Commission made various recommendations by its Report dated December 1968.
It also pointed out the defects from which the Land Legislation in the Slate of Jammu & Kashmir suffered and suggested ways and means for removing them.
This long and empirical process ultimately culminated in the enactment of the Act of 1976 which is impugned in these proceedings.
It is impossible to accept the contention of Shri V.M. Tarkunde, who appears on be half of the petitioners, that by reason of certain provisions of the impugned Act which are not co related to agrarian welfare, the Act cannot be said to be a measure of agrarian reform.
The short title of the Act shows that it was passed in order to provide for transfer of lands to the tillers of the lands f or the purpose of better utilization of those lands Section 4 of the Act provides that all rights, titles and interests in lands, which were not cultivated personally in Kharif 1971, shall be deemed to have been extinguished and shall vest in the State, free from all encumbrances with effect from May i, 1973.
By section 5, all lands in excess of the ceiling area on September 1, 1971 vested in the State on May 1, 1973.
Section 7 provides for the resumption of lands by the ex landlords for bonafide personal cultivation, subject G to the conditions mentioned in section 7 (2).
Section 9 provides for payment of rent by the tillers of the soil to the State for lands which have vested in the State.
Section 11 provides for payment of the amount due on the outstanding mortgages on lands.
Section 11 provided that lands which vest in the State under the impugned Act shall be deemed to have been acquired by the State, for which payment shall be determined and made in accordance with the 540 provisions of Schedule III.
Section 13 lays down restrictions on the utilization of lands of which tillers become owners.
Section 14 prescribes for the optimum retainable area of the land, section 15 deals with the manner of disposal of surplus land, while section 17 imposes a prohibition on the transfer of lands.
Chapter III of the Act deals with the jurisdiction of several revenue officers and Tribunals appointed under the Act and lays down the procedure which they are required to follow.
Chapter IV contains supplemental provisions.
Chapter V provides for penalties for the infringement of the provisions of the Act, while Chapter VI provides for certain miscellaneous matters.
Schedule III defines 'compensation ' to mean the sum of money payable for land at the market value, while the word 'amount ' is defined to mean the sum of money payable in lieu of extinguishment of rights in land at rates other than the market rate.
The maximum amount payable for the extinguishment of the rights of the landlords is Rupees one thousand per kanal.
These and other cognate matters which are dealt with by the Act are essential steps in any well conceived scheme of agrarian reform.
It is urged by learned counsel led by Shri Tarkunde and by Shri Sanjay Kaul who appeared in person, that certain provisions of the impugned Act have no bearing upon agrarian reform and those provisions cannot have the protection of Article 31A. Section 7 of the Act is said to be one such provision.
It provides by sub section (1) for the resumption of lands for bona fide personal cultivation by ex landlords but by sub section (2) it imposes certain conditions on the right of resumption.
One of those conditions is that the applicant for resumption, other than a member of the Defence Forces, must, within six months of the commencement of the Act, take up normal residence in the village in which the land sought to be resumed is situated or in an adjoining village, for the purpose of cultivating the land personally.
The other provision of the Act on which special stress was laid by counsel for the petitioners is the one contained in clause (f) of section 7(2) which lays down certain criteria for determining the extent of land which may be resumed.
Stated briefly, where a person was entitled to rent in kind from the tiller during kharif 1971, the extent of land resumable by such person has to bear the same proportion to the total land comprised in the tenancy as the rent in kind bears to the total produce; and where a person was entitled to rent in cash during Kharif 1971, the extent of land resumable by him has to be regulated by the extent of rent in kind to which such rent in cash can be 541 commuted in accordance with the provisions of sub sections (3) and (8) of section 9.
We are unable to hold that these and connected provisions of the impugned Act show that the Act is not a measure of agrarian reform.
The question as to whether any particular Act is a measure of agrarian reform has to be decided by looking at the dominant purpose of that Act.
In Ranjit Singh vs State of Pnnjab(1), it was held on a review of authorities that a large and liberal meaning must be given to the several expressions like 'estate ', 'rights in an estate ' and extinguishment and modification ' of such rights which occur in Article 31A.
The decision in Kochuni(1) to which our attention was drawn by Shri Tarkunde, was treated in Ranjit Singh as a special case which cannot apply to cases where the general scheme of legislation is definitely agrarian reform and under its provisions, something ancillary thereto in the interests of rural economy has to be undertaken to give full effect to those reforms.
In our case the dominant purpose of the statute is to bring about a just and equitable redistribution of lands, which is achieved by making the tiller of the soil the owner of the land which he cultivates and by imposing a ceiling on the extent of the land which any person, whether land lord or tenant, can hold.
Considering the scheme and purpose of the Act, we cannot but hold that the Act is a measure of agrarian reform and is saved by Article 31A from the challenge under Articles 14, 19 or 31 of the Constitution.
Article 31 has been repealed by the 44th Amendment with effect from June 20, 1979 and for future purposes it ceases to have relevance.
Reduced to a constitutional premise, the argument of the petitioners is that the particular provisions of the Act are discriminatory and are therefore violative of Article 14; that those provisions impose unreasonable restrictions on their fundamental rights and are therefore violative of article 19.
This argument is not open to them by reason of article 31A.
It may be mentioned that The Constitution (Application to Jammu and Kashmir) order, 1954, which was passed by the President of India in exercise of his powers under article 370 of the Constitution, makes article 31A applicable to the State of Jammu and Kashmir with the modification that the proviso to clause (1) of that article stands deleted and for sub clause (a) of clause (2) the following sub clause is substituted: 542 "(a) "estate" shall mean land which is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes (i) sites of buildings and other structures on such land; (ii) trees standing on such land; (iii) forest land and wooded waste; (iv) area covered by or fields floating over water; (v) sites of jandars and gharats; (vi) any jagir, inam, muafi or mukarrari or other similar grant, but does not include (i) the site of any building in any town area or village abadi or any land appurtenant to any such building or site, (ii) any land which is occupied as the site of a town or village; or (iii) any land reserved for building purposes in a municipality or notified area or cantonment or town area or any area for which a town planning scheme is sanctioned.
" The grievance of the petitioners is that not only do certain provisions of the Act militate against agrarian reform, but those provisions will involve the State Government into payment of considerable 'amounts ' to land holders for the extinction and acquisition of their rights, which would be far greater than the amounts which the State Government would be liable to pay under Acts like the Urban Land (Ceiling and Regulation) Act, 1976.
Agricultural lands which are situated within the limits of municipalities and Town Area Committees are also comprehend within the scope of the Act and the apprehension of the petitioners is that, after the tillers become statutory purchasers of those lands, they will be free to dispose them of at urban prices which have escalated sky high.
Another facet of the same argument 543 is that no agrarian reform is involved in applying the impugned statute to lands situated in urban agglomerations.
These arguments are not relevant for deciding the question as to whether the dominant purpose of the Act is agrarian reform.
The payment of a larger compensation to land holders under a Land Reform Law than what would be payable under an Act like the Urban Ceiling Act does not lead to the conclusion that the former is not a measure of agrarian reform The extent and mode of payment of compensation for the extinction of a land holder 's right is a matter for the legislature to decide and the circumstance that the compensation or the amount fixed by the legislature in any given case is excessive, will not make the law any the less a measure of agrarian reform.
In the same manner, the circumstance that the impugned statute is made applicable to agricultural lands situated within the limits of Local Authorities will not affect its character as a measure of agrarian reform.
If any land situated in a developed area is used predominantly for the purpose of agriculture, it is open to the legislature to include that land in a scheme of agrarian reform so as to make the tiller of that land its owner.
The apprehension expressed by the petitioners that, after becoming statutory owners of agricultural lands situated in developed areas on payment of a paltry price, the tillers will part with those lands at a high price which lands in developed areas like urban areas fetch, is hypothetical though not unreal.
Not unreal, because the temptation to trade in immovable property is common to agriculturists and non agriculturists alike.
But the hypothetical possibility that the lands will be disposed of by to day 's tillers to morrow, cannot affect the basic position that the Act is conceived in the larger interest of agrarian reform.
Besides, section 13 which places restriction on utilisation of lands, section 17 which imposes restrictions to a limited extent on the transfer of such lands and section 14 which prescribes the optimum land which can be retained even by an erstwhile tenant are effective deterrents against profit oriented disposal of high priced lands.
Before parting with this case, we would like to observe that section 7(2) (b) of the Act creates an anomalous situation, especially in the context of the definition of 'personal cultivation ' in section 2(12) of the Act.
One of the conditions imposed by section 7(2) (b) on the right of a land holder to resume land is that, unless he is a member of the defence forces, he must take his residence in the 544 village in which the land is situated or in an adjoining village.
"Personal cultivation" is defined in section 2(12) to mean cultivation by any member of one 's family or by a khana nishin daughter or a khana damad or a parent of the person or by other relations like the son, brother or sister who are specified in the various clauses of section 2(12).
Under clause (g) of section 2(12), a land holder who is a minor, insane, physically disabled, incapacitated by old age or infirmity, a widow or a person in detention or in person can cultivate the land through a servant or hired labourer under the personal supervision of his or her guardian or agent.
If it is permissible to cultivate a land through another person as specified in clauses (b) to (g) of section 2(12), it is difficult to understand why residence in the village where the land is situated or in an adjoining village should be compulsory for all persons, even for minors, widows, insane persons and persons in detention.
The exception made by the legislature in favour of the members of defence forces ought to be extended to these other persons also, The exclusion of a constitutional challenge under Articles 14, 19 and 31 which is provided for by Article 31A does not justify in equity the irrational violation of these articles.
This Court did observe in Waman Rao(l) that: "It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally" but the legislature has to take care to see that even marginal and incidental inequalities are not created without rhyme or reason.
The Government of J & K would do well to give fresh consideration to the provisions contained in section 7 (2) and modify the provisions regarding residence in order that they may accord with reason and commonsense.
Article 31A does not frown upon reason and commonsense For these reasons, we uphold the constitutional validity of the Jammu and Kashmir Agrarian Reforms Act, 1976 and dismiss these petitions.
There will be no order as to costs.

summary/full:
The petitioners challenged the constitutional validity of Jammu and Kashmir Agrarian Reforms Act, 17 of 1976 on the ground that the Act violated Articles 14, 19 and 31 of the Constitution.
The petitioners contended that as the Act contained certain provisions which were not co related to agrarian welfare, the Act could not be said to be a measure of agrarian reform and therefore not saved by Article 31A of the Constitution.
Dismissing the petitions, ^ HELD: The Act is a measure of agrarian reform and is saved by article 31A from the challenge under articles 14, 19 or 31 of the Constitution.
[541 D] The question as to whether any particular Act is a measure of agrarian reform has to be decided by looking at the dominant purpose of that Act.
In the instant case the dominant purpose of the statute is to bring about a just and equitable redistribution of lands, which is achieved by making the tiller of the soil the owner of the land which he cultivates and by imposing a ceiling on the extent of the land which any person, whether landlord or tenant, can hold.
The matters which are dealt with by the Act are essential steps in any well conceived scheme of agrarian reform.
The decision in Kochuni was treated in Ranjit Singh as a special case which cannot apply to cases where the general scheme of legislation is definitely agrarian reform and under its provisions, something ancillary thereto in the interests of rural economy has to be under taken to give full effect to those reforms.
[541 A D, 541 D] Ranjit Singh vs State of Punjab, ; and Kavalappara Rottarathil Kochuni & Ors.
vs State of Madras & Ors., , referred to.
The circumstance that the Act is made applicable to agricultural lands situated within the limits of local authorities will not affect its character as a measure of agrarian reform.
If any land situated in a developed area is used predominantly for the purpose of agriculture, it is open to the legislature to 537 include that land in a scheme of agrarian reform so as to make the tiller of that land its owner.
The hypothetical possibility that after becoming statutory owners of agricultural lands situated in developed areas on payment of a paltry price, the tillers will part with those lands at a high price which lands in developed areas like urban areas fetch, cannot affect the basic position that the Act is conceived in the larger interest of agrarian reform.
The payment of a larger compensation to land holders under a land reform law than what would be payable under an Act like the Urban Ceiling Act does not lead to the conclusion that the former is not a measure of agrarian reform.
[543 A F] Section 7(2)(b) of the Act creates an anomalous situation, especially in the context of the definition of 'personal cultivation ' in section 2(12) of the Act.
If it is permissible to cultivate a land through another person as specified in clauses (b) to (g) of section 2(12), there is no reason why residence in the village where the land is situated or in an adjoining village should be compulsory for all persons, even for minors, widows, insane persons and persons in detention.
The exception made by the legislature in favour of the members of defence forces ought to be extended to these other persons also.
The exclusion of a constitutional challenge under Articles, 14, 19 and 31 which is provided for by Article 31A does not justify in equity the irrational violation or these articles.
[543 G, 544 B D] Waman Rao & Ors.
vs Union of India & Ors.
; , referred to.