judgement:
Civil Appeal No. 2434 of 1977.
Appeal by Special Leave from the Judgment and Order dated 4/5th November, 1976 of the Gujrat High Court in S.A. No. 685/69.
U. R. Lalit (A.C.),1.
N. Shroff and H. section Parihar for the Appellant.
section T. Desai, Vimal Dave and Miss K. Mehta for the Respondent.
The Judgment of the Court was delivered by, KOSHAL, J.
The facts giving rise to this appeal by special leave against a decree dated November 5, 1976 of the High Court of Gujarat 294 may be better appreciated with reference to the following pedigreetable: NARANJI | | Dahyabhai Haribhai | | | | Ranchhodji | | | | Bhimbhai Mohanbhai (died childless in | 1913) | | | Parvatiben=Dayalji Dahyabhai (Plaintiff 8 (Plaintiff 7 | | | | | Bhikhubhai Thakorbhai Nirmalben Padmaben (Plaintiff 5) (Plaintiff 6) (Plaintiff 7) (Plaintiff 10) NARANJI (contd. ) | | Gulabhai Vallabhhai | | Motabhai | | | Nichhabhai= Surbhai | Amba Bai Bai Vijia | (Defendant 1) | | | | | Ghelabhai Lallubhai Chhotubhai Manibhai | (Plaintiff 3) (Plaintiff 4) | | Thakorbhai Ramanbhai (Plaintiff 1) (Plaintiff 2) 2.
In the year 1908 Ranchhodji son of Dahyabhai instituted Civil Suit No. 403 of 1908 against Bhimbhai son of Haribhai, Dayalji and Dahyabhai sons of Mohanbhai, Motabhai son of Gulabbhai, Bai Amba widow of Nichhabhai and Bai Vajia widow of Surbhai, for a partition of the joint Hindu family properties belonging to the parties.
The suit resulted in a decree dated August 18, 1909 which provided, inter alia, that Dayalji and Dahyabhai sons of Mohanbhai, and Motabhai son of Gulabbhai would be full owners of Survey Nos. 31 and 403 and also owners of a half share in Survey Nos. 591, 611, 288 295 and 659/3.
These persons were burdened by the decree with the responsibility to pay an yearly maintenance allowance of Rs. 42/ to Bai Vajia on Magsher Sud 2 of every year and the decree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land above mentioned in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same.
The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void.
By clause 8 of the decree sons of Mohanbhai as well as Motabhai were also deprived of the right of alienation of the land during the lifetime of Bai Vajia.
Default having been made in the payment of maintenance to Bai Vajia according to the terms of the decree, she took out execution and obtained possession of the land above detailed.
Thereafter Dayalji and Dahyabhai sons of Mohanbhai deposited in court the arrears of maintenance and filed an application with a prayer that the land of which possession had been given to Bai Vajia in execution of the decree be restored to them.
That application was dismissed on the 8th March 1912 and more than 2 1/2 years later, i.e., on 27th October 1914, Dahyabhai son of Mohanbhai instituted Civil Suit No. 576 of 1914 in the court of the Additional Sub Judge, Valsal, for a declaration that the dismissal of his application was null and void and for recovery of possession of the land which Bai Vajia had taken in execution of the decree.
The suit was decreed by the trial court but was dismissed in first appeal on the 13th March 1918.
Bai Vajia continued to enjoy the land till the 21st October 1963 when she made a sale of Survey No. 31 in favour of one Dhirubhai Paragji Desai.
The sale was challenged in Civil Suit No. 110 of 1966 by 10 persons being the heirs of Mohanbhai and Motabhai as shown in the pedigree table above, the defendants being Bai Vajia and the said Dhirubhai Paragji Desai.
It was claimed by the plaintiffs that Bai Vajia had no right to alienate in any manner the land obtained by her in execution as per the terms of the decree, that sub section (1) of section 14 of the (hereinafter referred to as the Act) had no application to her case which was covered by sub section (2) of that section and that the sale by her in favour of defendant No. 2 was null and void.
Bai Vajia contested the suit and contended that the sale was good in view of the provisions of subsection (1) abovementioned which enlarged her limited ownership 296 into full and absolute ownership and that sub section (2) aforesaid did not cover her case.
The suit was decreed by the trial court and Bai Vajia remained unsuccessful in the appeal which she instituted in the court of the District Judge, Bulsar.
A second appeal was filed by her before the High Court of Gujarat and during the pendency thereof she expired when one Dhirubhai Dayalji Desai was substituted for her as her sole heir and legal representative.
The appeal came up for hearing before a learned Single Judge of the High Court who by its judgment dated 5th November, 1976 dismissed it holding that the decree passed in Civil Suit No. 403 of 1908 did not recognise any "pre existing" right of Bai Vajia in the property in dispute.
In coming to this conclusion, the learned Judge followed Naraini Devi vs Smt.
Ramo Devi and others.(1) The legal representative of Bai Vajia is the sole appellant in the appeal before us, the respondents thereto being nine of the plaintiffs and six legal representatives of plaintiff No. 5 as also the purchaser from Bai Vajia who is arraigned as respondent No. 11.
At the outset it was pointed out by Mr. I. N. Shroff, learned counsel for the appellant, that Naraini Devi 's case (supra) has since been over ruled by the decision of this Court in V. Tulasamma & others vs V. Sesha Reddi(2) and we find that this is so.
In the case last mentioned, the facts were these.
The husband of Tulasamma died in the year 1931 in a state of jointness with his step brother V. Sesha Reddi.
A decree for maintenance was passed in favour of Tulasamma against V. Sesha Reddi on June 29, 1946.
On the 30th July 1949, a compromise between the contending parties was certified by the Court executing that decree.
Under the compromise, Tulasamma was allotted certain properties in lieu of maintenance, her right being limited to enjoyment thereof coupled with the specific condition that she would not have any right of alienation whatsoever.
Tulasamma took possession of those properties and continued to enjoy them till the early sixties.
On 12th of April 1960 she leased out some of the properties to two persons and on the 26th of May 1961 made a sale of some others to another person.
V. Sesha Reddi filed a suit on July 31, 1961 for a declaration that the alienations made by Tulasamma were not binding on him and could remain valid only so long as she was alive.
The basis of the action was that Tulasamma acquired a restricted estate under the terms of the compromise and that her interest could not be enlarged under sub section (1) of section 14 of the Act in view of sub section (2) of that section.
The 297 suit was decreed by the trial court whose decision however was reversed in appeal by the District Judge, with a finding that the allotment of properties to Tulasamma by the terms of the compromise had been made in recognition of a "pre existing" right a finding which was reversed by the High Court, who restored the decree passed by the trial court.
The matter came up to this Court in appeal by special leave and Fazal Ali, J., who wrote an exhaustive judgment thus formulated the two points falling for determination: (1) Whether the instrument of compromise under which the properties were given to the appellant Tulasamma before the in lieu of maintenance falls within section 14(1) or is covered by section 14(2) of that Act.
(2) Whether a Hindu widow has a right to property in lieu of her maintenance, and if such a right is conferred on her subsequently by way of maintenance it would amount to mere recognition of a pre existing right or a conferment of new title so as to fall squarely within section 14(2) of the .
Fazal Ali, J., was of the opinion that the resolution of the dispute made it necessary that the real legal nature of the incidents of a Hindu widow 's right to maintenance be considered.
He referred to various works by celebrated authors on Hindu Law and in doing so cited passages from 'Digest of Hindu Law ' by Colebrooke, 'Hindu Law ' by G. section Sastri, 'Hindu Law and Usage ' by Mayne and 'Principles of Hindu Law ' by Mulla and came to the conclusion that the widow 's right to maintenance, though not an indefeasible right to property, is undoubtedly a "pre existing" right.
A survey of various judicial pronouncements was then undertaken by Fazal Ali, J., and as a consideration thereof he arrived at the following propositions : "(1) A Hindu woman 's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property.
If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow.
298 (2) Though the widow 's right to maintenance is not a right to property but it is undoubtedly a pre existing right in property, i.e., it is a jus ad rem, not jus in rem, and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court.
(3) The right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow 's right to maintenance, the purchaser is legally bound to provide for her maintenance.
(4) The right to maintenance is undoubtedly a pre existing right which existed in the Hindu Law long before the passing of the Act of 1937(1) or the Act of 1946,(2) and is therefore, a pre existing right.
(5) The right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co owner in the property of her husband, though her co ownership is of a subordinate nature.
(6) Where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make arrangements for her maintenance.
" Fazal Ali, J., then embarked on a consideration of the scope and meaning of section 14 of the Act in the light of various pronouncements made by this Court as also of the decisions rendered by various High Courts in relation to the points in dispute.
During the course of the discussion he made the following pertinent observations: "It is true that a widow 's claim for maintenance does not ripen into a full fledged right to property, but nevertheless it is undoubtedly right which in certain cases can amount to a right to property where it is charged.
It cannot be said that where a property is given to a widow in lieu of 299 maintenance, it is given to her for the first time and not in lieu of a pre existing right.
The claim to maintenance, as also the right to claim property in order to maintain herself, is an inherent right conferred by the Hindu Law and, therefore, any property given to her in lieu of maintenance is merely in recognition of the claim or right which the widow possessed from before.
It cannot be said that such a right has been conferred on her for the first time by virtue of the document concerned and before the existence of the document the widow had no vestige of a claim or right at all.
Once it is established that the instrument merely recognised the pre existing right, the widow would acquire absolute interest.
Secondly, the Explanation to section 14(1) merely mentions the various modes by which a widow can acquire a property and the property given in lieu of maintenance is one of the modes mentioned in the Explanation.
Subsection (2) is merely a proviso to section 14(1) and it cannot be interpreted in such a manner as to destroy the very concept of the right conferred on a Hindu woman under section 14(1).
Sub section (2) is limited only to those cases where by virtue of a certain grant or disposition a right is conferred on the widow for the first time and the said right is restricted by certain conditions.
In other words, even if by a grant or disposition a property is conferred on a Hindu male under certain conditions, the same are binding on the male.
The effect of sub section (2) is merely to equate male and female in respect of grant conferring a restricted estate.
" Finally, Fazal Ali, J., made a reference to Naraini Devi 's case (supra) to which he himself was a party (apart from Sarkaria, J., who delivered the judgment of the Court) and in relation thereto made the following observations: "This case is no doubt directly in point and this Court by holding that where under an award an interest is created in favour of a widow that she should be entitled to rent out the property for her life time, it was held by this Court that this amounted to a restricted estate under section 14(2) of the 1956 Act.
Unfortunately the various aspects, namely, the nature and extent of the Hindu women 's right to maintenance, the limited scope of sub section (2) which 300 is a proviso to sub section (1) of section 14 and the effect of the Explanation, etc., to which we have adverted in this Judgment, were neither brought to our notice nor were argued before us in that case.
Secondly, the ground on which this Court distinguished the earlier decision of this Court in Badri Parshad vs Smt.
Kanso Devi(1) was that in the aforesaid decision the Hindu widow had a share or interest in the house of her husband under the Hindu Law as it was applicable then, and, therefore, such a share amounted to a pre existing right.
The attention of this Court however, was not drawn to the language of the Explanation to section 14(1) where a property given to a widow at a partition or in lieu of maintenance had been placed in the same category, and therefore, the reason given by this Court does not appear to be sound.
For the reasons that we have already given, after taking an overall view of the situation, we are satisfied that the Division Bench decision of this Court in Naraini Devi 's case (supra) was not correctly decided and is therefore overruled.
" Summarising the conclusions of law which Fazal Ali, J., reached after an exhaustive consideration of the texts and authorities mentioned by him, he enumerated them thus: "(1) The Hindu female 's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu.
Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom.
If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one.
At any rate, even without a charge the claim for maintenance is doubtless a pre existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre existing right.
301 "(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of females so as to advance the object of the 1956 Act and promote the socio economic ends sought to be achieved by this long needed legislation. "(3) Sub section (2) of section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of section 14(1) materially.
The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by section 14(1) or in a way so as to become totally inconsistent with the main provision. "(4) Sub section (2) of section 14 supplies to instruments, decrees, awards, gifts, etc., which create independent and new titles in favour of females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre existing rights.
In such cases a restricted estate in favour of a female is legally permissible and section 14(1) will not operate in this sphere.
Where, however, an instrument merely declares or recognises a pre existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub section has absolutely no application and the female 's limited interest would automatically be enlarged into an absolute one by force of section 14(1) and the restrictions placed, if any, under the document would have to be ignored.
Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of subsection (2) and would be governed by section 14(1) despite any restrictions placed on the powers of the transferee.
"(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance", etc., in the Explanation to section 14(1) clearly makes sub section (2) inapplicable to these categories which have been expressly excepted from the operation of sub section (2). "(6) The words "possessed by" used by the Legislature in section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same.
302 Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of section 14(1) she would get absolute interest in the property.
It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. "(7) That the words "restricted estate" used in section 14(2) are wider than limited interest as indicated in section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee".
Applying these principles Fazal Ali J., held: "(i) that the properties in suit were allotted to the appellant Tulasamma on July 30, 1949 under a compromise certified by the Court; (ii) that the appellant had taken only a life interest in the properties and there was a clear restriction prohibiting her from alienating the properties; (iii) that despite these restrictions, she continued to be in possession of the properties till 1956 when the Act of 1956 came into force; and (iv) that the alienations which she had made in 1960 and 1961 were after she had acquired an absolute interest in the properties.
" In this view of the matter Fazal Ali, J., allowed the appeal of Tulasamma 's legal representatives.
Bhagwati, J., wrote a separate judgment in Tulasamma 's case and A. C. Gupta, J., agreed with him.
He also allowed the appeal substantially for the same reasons as had weighed with Fazal Ali, J., and in doing so observed: "Now, sub section (2) of section 14 provides that nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other 303 instrument or the decree, order or award prescribe a restricted estate in such property.
This provision is more in the nature of a proviso or exception to sub section (1) and it was regarded as such by this Court in Badri Pershad vs Smt.
Kanso Devi.(1) It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub section (1).
It cannot be interpreted in a manner which would rob sub section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub section (1).
The language of sub section (2) is apparently wide enough to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award prescribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property.
But that would virtually emasculate sub section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub section (1), since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of subsection (1).
The Explanation to sub section (1) which includes within the scope of that sub section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there 304 would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled.
That surely could never have been the intention of the Legislature in enacting sub section (2).
" Bhagwati, J., laid down the nature of the right which a Hindu widow has to be maintained out of the joint family estate in the following terms: "It is settled law that a widow is entitled to maintenance out of her deceased husband 's estate, irrespective whether that estate may be in the hands of his male issue or it may be in the hands of his coparceners.
The joint family estate in which her deceased husband had a share is liable for her maintenance and she has a right to be maintained out of the joint family properties and though, as pointed out by this Court in Rani Bai vs Shri Yadunandan Ram(1) her claim for maintenance is not a charge upon any joint family property until she has got her maintenance determined and made a specific charge either by agreement or a decree or order of a Court, her right is "not liable to be defeated except by transfer to a bonafide purchaser for value without notice of her claim or even with notice of the claim unless the transfer was made with the intention of defeating her right".
The widow can for the purpose of her maintenance follow the joint family property "into the hands of any one who takes it as a volunteer or with notice of her having set up a claim for maintenance".
The courts have even gone to the length of taking the view that where a widow is in possession of any specific property for the purpose of her maintenance, a purchaser buying with notice of her claim is not entitled to possession of that property without first securing proper maintenance for her, vide Rachawa & Ors.
vs Shivayanappa(2) cited with approval in Ranibai 's case (supra).
It is, therefore, clear that under 305 the Sastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged in the joint family property and even if no specific charge is created, this right would be enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim.
The right of the widow to be maintained is of course not a jus in rem, since it does not give her any interest in the joint family property but it is certainly jus ad rem, i.e., a right against the family property.
Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.
It would not be a grant for the first time without any pre existing right in the widow.
The widow would be getting the property in virtue of her pre existing right, the instrument giving the property being merely a document effectuating such pre existing right and not making a grant of the property to her for the first time without any antecedent right or title.
There is also another consideration which is very relevant to this issue and it is that, even if the instrument were silent as to the nature of the interest given to the widow in the property and did not, in so many terms, prescribe that she would have a limited interest, she would have no more than a limited interest in the property under the Hindu Law as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this Court in Nirmal Chand 's case (supra), "merely recording the true legal position" and that would not attract the applicability of sub section (2) but would be governed by sub section (1) of section 14.
All the three Judges were thus unanimous in accepting the appeal on the ground that Tulasamma 's right to maintenance was a pre existing right, that it was in recognition of such a right that she obtained property under the compromise and that the compromise there fore did not fall within the ambit of sub section (2) of section 14 of the Act but would attract the provisions of sub section (1) thereof coupled with the Explanation thereto.
With respect we find our selves in complete agreement with the conclusions arrived at by 306 Bhagwati and Fazal Ali, JJ., as also the reasons which weighed with them in coming to those conclusions.
Mr. section T. Desai, learned counsel for the plaintiffs respondents, and Mr. U. R. Lalit who very ably assisted the Court at its request, contended that for a Hindu female to be given the benefit of subsection (1) of section 14 of the Act she must first be an owner, albeit a limited owner, of the property in question and that Tulasamma not being an owner at all, the Bench presided over by Bhagwati, J., did not reach a correct decision in holding that the sub section aforesaid covered her case.
We find that only that part of this argument which is interpretative of sub section (1) is correct, namely, that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub section would arise.
We may here reproduce in extenso section 14 of the Act with advantage: "14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
"Explanation: In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what so ever, and also any such property held by her as "Stridhana" immediately before the commencement of this Act. "(2) Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a restricted estate in such property." A plain reading of sub section (1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section.
If it was intended to enlarge any sort of a right which could 307 in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well recognised principle of interpretation of statutes that the Legislature does not employ meaningless language.
Reference may also be made in this connection to Eramma vs Verrupanna & others(1) where in Ramaswami, J., speaking on behalf of himself, Gajendragadkar, C.J., and Hidayatullah, J., interpreted the sub section thus: "The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act.
It may be noticed that the Explanation to section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be.
The words "as full owner thereof and not as a limited owner" as given in the last portion of sub section (1) of section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership.
In other words, section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section.
The object of the section is to extinguish the estate called 'limited estate ' or 'widow 's estate ' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title.
It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser.
In other words, the provisions of section 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession 308 of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser with out any right to property." This interpretation of sub section (1) was cited with approval in Mangal Singh and Others vs Shrimati Rattno & Another(1) by Bhargava, J., who delivered the judgment of the Court and observed: "This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question.
Even mere physical possession of the property without the right of ownership will not attract the provisions of this section.
This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled.
The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any longer." Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub section (1) of section 14 of the Act but then this condition was fully satisfied in the case of Tulasamma to whom the property was made over in lieu of maintenance with full rights of enjoyment thereof minus the power of alienation.
These are precisely the incidents of limited ownership.
In such a case the Hindu female represents the estate completely and the reversioners of her husband have only a spes successionis, i.e., a mere chance of succession, which is not a vested interest and a transfer of which is a nullity.
The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive.
Ownership in the fullest sense is a sum total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less.
When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment.
The 309 property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others.
Such a relationship to property in our opinion falls squarely within the meaning of the expression "limited owner" as used in sub section (1) of section 14 of the Act.
In this view of the matter the argument that the said sub section did not apply to Tulasammas 's case (supra) for the reason that she did not fulfil the condition precedent of being a limited owner is repelled.
The next contention raised by Mr. Desai and Mr. Lalit also challenged the correctness of the decision in Tulasamma 's case.
They argued that in any case the only right which Tulasamma had prior to the compromise dated July 30, 1949 was a right to maintenance simpliciter and not at all a right to or in property.
For the reasons which weighed with Bhagwati and Fazal Ali, JJ., in rejecting this argument we find no substance in it as we are in full agreement with these reasons and the same may not be reiterated here.
However we may emphasize one aspect of the matter which flows from a scrutiny of subsection (1) of section 14 of the Act and the explanation appended thereto.
For the applicability of sub section (1) two conditions must co exist, namely: (1) the concerned female Hindu must be possessed of property and (2) such property must be possessed by her as a limited owner.
If these two conditions are fulfilled, the sub section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of the Act.
The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub section would embrace.
Such modes of acquisition are: (a) by inheritance, (b) by devise, (c) at a partition, (d) in lieu of maintenance or arrears of maintenance, (e) by gift from any person, whether a relative or not, before, at or after her marriage, (f) by her own skill or exertion, 310 (g) by purchase, (h) by prescription, (i) in any other manner what so ever, and (j) any such property held by her as "stridhana" immediately before the commencement of this Act.
A reference to the Hindu law as it prevailed immediately before the commencement of the Act would lead one to the conclusion that the object of the Explanation was to make it clear beyond doubt that all kinds of property which fell within the ambit of the term "stridhana" would be held by the owner thereof as a full owner and not as a limited owner.
Reference may in this connection be made to the following enumeration of "Stridhana" in paragraph 125 of Mulla 's Hindu law: (1) Gifts and bequests from relations.
(2) Gifts and bequests from strangers.
(3) Property obtained on partition.
(4) Property given in lieu of maintenance.
(5) Property acquired by inheritance.
(6) Property acquired by mechanical arts (7) Property obtained by compromise.
(8) Property acquired by adverse possession.
(9) Property purchased with stridhana or with savings of income of stridhana.
(10) Property acquired from sources other than those mentioned above.
These heads of property are then dealt with at length by Mulla in paragraphs 126 to 135 of his treatise.
Prior to the commencement of the Act, the Hindu female did not enjoy full ownership in respect of all kinds of "Stridhana" and her powers to deal with it further varied from school to school.
There was a sharp difference in this behalf between Mitakshara and Dayabhaga.
And then the Bombay, Benaras, Madras and Mithila schools also differed from each other on the point.
Succession to different kinds of "Stridhana" did not follow a uniform pattern.
The rights of the Hindu female over "Stridhana" varied according to her status as a maiden, a married woman and a widow.
The source and nature of the property acquired also placed limitations on her ownership and made a difference to the mode of succession thereto.
A comparison of the contents of the Explanation with those of paragraph 125 of Mulla 's Hindu Law would show that 311 the two are practically identical.
It follows that the Legislature in its wisdom took pains to enumerate specifically all kinds of "Stridhana" in the Explanation and declared that the same would form "property" within the meaning of that word as used in sub section (1).
This was done, in the words of Bhagwati, J, "to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society".
It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex.
It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of "Stridhana".
This dual purpose underlying the Explanation must be borne in mind and given effect to when the section is subjected to analysis and interpretation, and sub section (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants.
A Combined reading of the two sub sections and the Explanation leaves no doubt in our minds that sub section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the purview of sub section (1).
Tulasamma 's case (supra) having, in our opinion been decided correctly, the appeal in hand must succeed as the facts in the latter are on all fours with those in the former.
Mr. Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji and Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only given the right to possess it for her life the ownership remaining all along in the said three persons, but this argument does not find favour with us.
It has to be noted that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it.
Such a right was also taken away from the said three persons.
The arrangement meant that whatever rights existed in relation to the land during the life time of Bai Vajia, were exercisable by her alone and by nobody else.
Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life time.
After the land 312 was made over to her she became its owner for life although with a limited right and therefore only as a limited owner.
Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein.
As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajia 's life.
Following Tulsamma 's case we hold that Bai Vajia became a full owner of the land in dispute under the provisions of sub section (1) of section 14 of the Act and that sub section (2) thereof has no application to her case, the land having been given to her as a limited owner and in recognition of her pre existing right against property.
In the result therefore, the appeal succeeds and is accepted.
The judgment and the decree of the High Court are set aside and the suit giving rise to this appeal is dismissed.
In the circumstances of the case, however, we leave the parties to bear their own costs throughout.
S.R. Appeal allowed.

summary/full:
As per the decree in a partition suit dated August, 18, 1909 Motabhai and two sons of Mohanbhai being two predecessors in interest of the plaintiffs respondents were burdened with the responsibility of paying an yearly maintenance allowance of Rs. 42/ to Bai Vajia appellant on Magsher Sud 2 of every year.
The decree further provided that in the event of default in payment of such allowance continuing for a period of a month after the due date, Bai Vajia would be entitled to take possession of the land allotted to them under the decree viz. Survey Nos. 31, 403, 591, 611, 288 and 659/3 in lieu of the maintenance awarded to her and would enjoy the income thereof without however being competent to sell, mortgage, bequeath, gift or otherwise transfer the same.
The decree declared that any alienation made by Bai Vajia in contravention of the direction given by the decree in that behalf would be void.
By clause 8 of the decree Motabhai and sons of Mohanbhai were also deprived of the right of alienation of the land during the lifetime of Bai Vajia.
Default having been made in the payment of maintenance to her according to the terms of the decree, the appellant, took out execution and obtained possession of the lands in question, which she continued to enjoy till October 21, 1963 when she made a sale of Survey No. 31 in favour of one D. P. Desai.
The sale was challenged by the plaintiffs in Civil Suit No. 110/66 which was decreed by the trial Court.
The District Court in first appeal confirmed it and the High Court in second appeal upheld the decree of Bai Vajia.
Allowing the appeal of the Legal Representative by special leave.
the Court.
^ HELD: 1.
A combined reading of sub sections (1) and (2) of Section 14 of the and the Explanation following sub section (1) makes it clear, that sub section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in this Explanation) out of the purview of sub section (1).
[311 D E] 2.
For the applicability of sub section (1) of Section 14 two conditions must coexist namely.
(1) the concerned female Hindu must be possessed of property; and 292 (2) such property must be possessed by her as a "limited owner".
If these two conditions are fulfilled, the sub section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of the Act.
[309 D F] The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub section would embrace.
Two such modes are "in lieu of maintenance or arrears of maintenance", and "any such property held by her as Stridhana" immediately before the commencement of the Act.
It, therefore, follows that the Legislature in its wisdom took pains to specify all kinds of "Stridhana" in the Explanation and declared that the same would form "property" within the meaning of that word as used in sub section (i).
This was done "to achieve a social purpose by bringing about change in the social and economic position of women in Hindu Society".
It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex.
It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of 'Stridhana '.
This dual purpose underlying the Explanation must be borne in mind and given effect to when the section is subjected to analysis and interpretation, and sub section (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants.
A D] 3.
It is true that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu Female, no question of the applicability of subsection (1) of section 14 of the Act, would arise.
[306 B C] 4.
A plain reading of sub section (1) of section 14 of the Act makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section.
If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owners", would not have been used at all and becomes redundant, which is against the well known principle of interpretation of statutes that the Legislature does not employ meaningless language.
[306 H, 307 A] Eramma vs Veerappanna and Ors., ; Mangal Singh and Ors.
vs Srimati Rattno & Anr., ; ; reiterated.
Limited ownership in the concerned Hindu female is thus a sine qua non for the applicability of sub section (1) of section 14 of the Act.
In a case where this condition is fulfilled the Hindu female represents the estate completely and the reversioners of her husband have only a spes succession is i.e. a mere chance of 293 succession which is not a vested interest and a transfer of which is a nullity.
The widow is competent to protect the property from all kinds of trespass and to sue and be sued for all purposes in relation thereto so long as she is alive.
Ownership in the fullest sense is a sum total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less.
[308 E H] When a widow holds the property for her enjoyment as long as she lives, nobody is entitled to deprive her of it or to deal with the property in any manner to her detriment.
The property is for the time being beneficially vested in her and she has the occupation, control and usufruct of it to the exclusion of all others.
Such a relationship to property falls squarely within the meaning of the expression "limited owner" as used in sub section (1) of Section 14 of the Act.
[308 H, 309A] 6.
In the instant case: Bai Vajia became a full owner of the land in dispute under the provisions of sub section (1) of section 14 of the Act and that sub section (2) thereof has no application to her case, the land having been given to her as a limited owner and in recognition of her pre existing right against property.
So long as she lived, she was to have full enjoyment of and complete control over the land, barring any right to alienate it.
Such a right was also taken away from Motabhai and two sons of Mohanbhai.
The arrangement meant that whatever rights existed in relation to the land during the life time of Bai Vajia were exercisable by her alone and by nobody else.
Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life time.
After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner.
Under the decree the land vested in Motabhai and sons of Mohanbhai only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein.
As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajia 's life.
[311 G H, 312 A D] V. Tulasamma and Ors.
vs Sesha Reddy, [1977] 3 S.C.R. 261; discussed in extenso and followed.


judgement:
Civil Appeal No. 2036 of 1969.
Appeal by special leave from the Judgment and Order dated 18 12 1968 of the Kerala High Court in W.A. No. 167/67.
Dr. V. A. Sayied Muhammed and K. M. K. Nair for the Appelant.
A. section Nambiar and D. D. Gupta for the Respondents.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave, directed against a judgment, dated December 18, 1968, of the High Court of Kerala, arises out of these facts: 245 Koyakutty, Respondent herein, entered service of the former, Madras State on May 1, 1943 as temporary Section Writer on probation in the Registration Department.
He did not possess the minimum, general educational qualification prescribed by Rule 29 of the Madras Ministerial Service Rules.
This rule, inter alia, provided that no person shall be eligible for appointment to the service in any post either by direct recruitment or by recruitment by transfer on promotion unless he possesses the minimum general educational qualification prescribed in the Schedule to the General Rules.
The General Rules provided that the passing of the Secondary School Leaving Examination or other equivalent examination shall be the minimum educational qualification for appointment to the Ministerial Service.
The State Government, however, had the power to exempt a person from this qualification.
The Madras Government passed an Order, dated April 15, 1954, (exhibit P II), exempting, him from the said qualification for being appointed as a Lower Division Clerk in the Registration Department.
It will be useful to quote this order in extenso: "The Government consider that in view of the fact that Sri M. B. Koyakutty belongs to a community which is educationally backward, the petitioner should be exempted from the minimum general educational qualification, so as to enable him to be appointed as a Lower Division Clerk in the Registration Department under G.O. MS.
No. 2858 Rev. dt. 2 11 50 in his turn. .
The Governor of Madras accordingly relaxes rules 28 and 29 of the Special Rules for the Madras Ministerial Service in favour of Sri M. B. Koyakutty, a temporary Section Writer in the Registration Department in the Registration District of Palghat in order to enable him to be appointed as a Lower Division Clerk in that department.
Sd/ section K. Chettu, Secretary to Govt.
" As a result of this exemption, Koyakutty was appointed a Lower Division Clerk in the Registration Department on May 19, 1954.
Consequent on the reorganisation of the States in 1956, Koyakutty was allotted to the Kerala State Service as Lower Division Clerk in the Registration Department.
On May 16, 1961, the Government of Kerala issued an Order, in consultation with the Public Service Commission, that "all such 246 persons who did not possess the general minimum educational qualification and were appointed as Lower Division Clerks, after granting them exemption from that qualification", may be allowed to sit for a qualifying test to be conducted by the Commission, and in case they secure a certain minimum percentage of marks, they may be regarded as possessing the minimum general qualification of the S.S.L.C. Standard for purpose of promotion to Upper Division and higher grades or continuance in the Upper Division, as the case may be.
The order further stated that the case of those who have been appointed and are continuing in the Upper Division, they need not be disturbed for the present, but they should be reverted, if they fail to qualify at the next such examination of the Commission.
According to para 3 of the Order, "the minimum marks to be obtained for being declared eligible for promotion to or continuance in the Upper Division etc. . will be issued separately.
" A gradation list of Clerks was prepared by the District Registrar, Palghat, in which Koyakutty was shown at No. 1 among the officiating Lower Division Clerks, while the original respondents 1 and 2 were shown at Nos. 7 and 6, respectively.
In July 1966, two vacancies occurred in the cadre of Upper Division Clerks in the Department.
The original respondents 1 and 2, who were junior to Koyakutty, were promoted against those vacancies as Upper Division Clerks.
Koyakutty thereupon filed a writ petition under Article 226 of the Constitution in the Kerala High Court, praying that the promotion of original respondents 1 and 2 be quashed and a direction be issued requiring the District Registrar, Palghat, and the State of Kerala to consider his claim and to promote him in preference to the original respondents 1 and 2.
Koyakutty 's contention was that under the Rules, seniority should be the basis for promotion; and promotion of his juniors amounted to a denial of equable treatment guaranteed under Article 14 and 16 of the Constitution.
His stand was that the exemption granted to him by the Government, removing the bar from being appointed in the Ministerial Service enured for all purposes.
This contention was rejected by the trial Judge, who held that the exemption granted to Koyakutty was for the limited object of enabling him to be appointed and continued in the post of a Lower Division Clerk and did not remove the bar of minimum educational qualification for his promotion to the post of Upper Division Clerk.
In the result, Koyakutty 's writ petition was dismissed.
247 On appeal by Koyakutty, a Division Bench of the High Court reversed the judgment of the learned Single Judge, and directed the District Registrar, Palghat, and the State Government to treat Koyakutty as eligible for promotion as an Upper Division Clerk and pass necessary orders on that basis.
The Division Bench further directed that Koyakutty 's rank in the cadre of Upper Division Clerks will, also, be determined after he is promoted to that Cadre.
Hence this appeal by the District Registrar, Palghat and the State.
The first question that falls to be considered is, whether in the matter of promotion to the cadre of Upper Division Clerks, the respondent was governed by the Madras Ministerial Service Rules or by the Kerala State and Subordinate Service Rules, 1958 ? The Government of Kerala, on February 25, 1957, issued an Order S(D)S 43405/56/PD to the effect that as an interim arrangement, every officer in the service of the new State would be bound by the Service Rules of Travancore Cochin or Madras, as the case may be, to which he belonged prior to November 1, 1956 until common service rules are framed and issued.
Thereafter, in exercise of the powers under the proviso to Article 309 of the Constitution, the Governor of Kerala in supersession of all rules on the subject, framed the Kerala State and Subordinate Services Rules, 1958.
Part I of these Rules deals with preliminary matters.
Rule 2(16) in Part I defines "Special Rules" as meaning "the rules in Part III applicable to each service or class of service." Such Special Rules have not, however, been framed by the Governor.
Part II contains the General Rules.
Rule 1 in Part II delineates the scope of the General Rules.
It runs thus: "The rules in this Part shall apply to all State and Subordinate Services and the holders of all posts, whether temporary or permanent in any such service, appointed thereto before, or after the date on which these rules come into force as provided in sub rule (b) of rule 1 in Part 1 except to the extent otherwise expressly, provided (a) by or under any law for the time being in force, or (b) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government.
" 248 Rule 2 in the same Part provides: "2. Relation to the Special Rules.
If any provision in the General Rules contained in the Part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall in respect of that service, prevail over the provision in the General Rules in this Part.
" It will bear repetition that since no Special Rules, as defined in Rule 2(16) of Part I, have so far been framed by the Governor under Article 309 of the Constitution, Rule 2 in Part II has remained otise.
Rule 28 in Part II provides regarding promotion.
Clause (i) of clause (b) of this rule deals with promotion and appointment by transfer to a selection category or Selection Grade in a service.
Such promotion shall be made on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal.
Sub clause (ii) of clause (b) of Rule 28 is captioned: "Promotion and appointment by transfer to higher posts according to seniority".
Its material part, as it stood before the amendment of December 28, 1970, reads as under: "All other promotions or appointments by transfer shall, subject to the provisions of these rules and the special rules, be made in accordance with seniority subject to the person 's fitness for appointment.
" It is contended on behalf of the appellants that by virtue of the Kerala Government Order dated February 25, 1957, referred to earlier, the Special Rules contained in the Madras Ministerial Service Rules, continued to govern the respondent because those Special Rules have not been superseded by the Kerala Rules of 1958.
The point sought to be made out is that the Special Rules, within the meaning of Rule 2 in Part II read with the aforesaid Government Order dated February 25, 1957, will mean the Special Rules contained in the Madras Rules.
A similar argument was raised before the Appellate Bench of the High Court, also, and it was repelled, and, in our opinion, rightly.
Special Rules for the purpose of the Kerala Rules, 1958, will be as defined in Rule 2(16) in Part I.
That definition contemplates that Special Rules in Part III will be framed by the Governor of Kerala.
But, no such rules have so far been framed.
We have, therefore, no hesitation in holding, in agreement with the High Court, that in the matter of promotion as an Upper Division 249 Clerk, the appellant was governed by Rule 28(b)(ii) in Part II.
The alternative contention that has been advanced on behalf of the appellant is that even if Rule 28(b)(ii) was applicable, then also, it was well within the power of the State Government to prescribe a test to judge the fitness of those persons who did not possess the minimum educational qualification and were appointed as Lower Division Clerks on being exempted from that qualification by Government Order.
In this connection, reference has been made to Article 162 of the Constitution, to show what the State Government could do by framing a statutory rule under Article 309, proviso, could well be done by an executive order, the executive power of the State being co extensive with its legislative power.
It is maintained that the power of the Government to prescribe selective test for promotion to higher service has been recognised by this Court in several decisions.
Reference has been made in this connection to the decisions of this Court in B. N. Nagarajan & Ors.
vs State of Mysore & Ors., Union of India etc.
vs Majji Jangamayya etc., State of Jammu & Kashmir vs Triloki Nath Khosa & Ors.
It was further submitted that the possession of the minimum educational qualification, i.e. a certificate of having passed the S.L.C. Examination or any equivalent examination is presumptive proof of the fitness of the holder thereof, for promotion to the cadre of Upper Division Clerks.
Therefore, according to the counsel, there was a reasonable basis for classifying those who did not possess this minimum educational qualification as a category apart from those who possessed such a qualification.
In this context, it is further emphasised that the exemption was granted only for the purpose of being appointed as a Lower Division Clerk, and not for the purpose of further promotion.
As against this, Mr. Nambiar, appearing for the respondents, submits that once the bar of minimum educational qualification was removed for appointment as Lower Division Clerk, further promotion of the respondent was governed by Rule 28(b)(ii), Part I of the Kerala Rules of 1958.
After their appointment, the respondent or others like him who had been exempted from possessing the minimum educational qualification, had become integral members of the same cadre.
They could not be singled out for hostile treatment.
Counsel has submitted that the rule enunciated by this Court in Triloki Nath 250 Khosa 's case (ibid), is not applicable because the facts of that case were entirely different.
Counsel further stated that any executive order issued by the Government, cannot supplant the statutory rules framed by the Governor under Article 309.
Executive instructions can operate only in areas not covered by the rules.
But here the area was fully occupied by the statutory rule 28(b)(ii).
There can be no quarrel with the proposition that if the statutory rules framed by the Governor or any law enacted by the State Legislature under Article 309 is silent on any particular point, the Government can fill up that gap and supplement the rule by issuing administrative instructions not inconsistent with the statutory provisions already framed or enacted.
The Executive instructions in order to be valid must run subservient to the statutory provisions.
In the instant case, however, it could not be said that there was a gap or a void in the statutory provisions in the matter of promotion from the cadre of Lower Division Clerks to that of Upper Division Clerks.
After the enactment of the Kerala Public Services Act of 1968, the position was that by virtue of Section 3 of that Act, the Kerala State Subordinate Services Rules of 1958 framed by the Governor under the proviso to Article 309 of the Constitution were deemed to have been made under the Act and were continued until superseded by rules made under that Act.
As noticed already, no Special Rules relating to Upper Division Clerks have been framed.
The General Rules in Part II will, therefore, be applicable to Upper Division Clerks, also.
It will bear repetition that the preamble to the Rules and Rule 1 in Part II, indicate that all the previous rules have been superseded.
These General Rules do not provide any minimum general educational qualification for promotion to the cadre of Upper Division Clerks from that of Lower Division Clerks.
All that is required by rule 28 (b) (ii) which governs the promotions from the Lower Division to the Upper Division, is that promotions shall be made in accordance with seniority subject to the person 's fitness for appointment.
There is nothing in this sub rule or elsewhere which provides that a member of the Lower Division will be presumed to be unfit for promotion to the Upper Division unless he possesses the minimum general educational qualification, or 251 passes a qualifying test.
It is conceivable that the State Government may prescribe a general test for all Clerks of the Lower Division to judge their fitness for promotion to the Upper Division.
But, such is not the case here.
The respondent and the others like him who were appointed as Lower Division Clerks after granting them exemption from possessing the minimum general educational qualification have been singled out for this discriminatory treatment.
There is nothing on the record to show that the case of the respondent was considered for promotion and he was found unfit.
The ratio of Triloki Nath Khosa 's case (ibid) does not advance the case of the appellant State.
Therein, persons appointed directly and by promotion were integrated into a common class of Assistant Engineers.
Rule 12 provided that Graduates among the Assistant Engineers, shall be eligible for promotion to the cadre of Executive Engineers, to the exclusion of diploma holders.
This rule was a statutory rule.
Its constitutional validity was challenged on the ground that it violated Articles 14 and 16 of the Constitution.
This Court, speaking through Chandrachud J. (as he then was), repelled this contention with the reasoning that the classification of Assistant Engineers into degree holders and diploma holders could not be held to rest on any unreal or unreasonable basis.
The classification was made with a view to achieving administrative efficiency in the Engineering Services.
It will be seen that Triloki Nath 's case, is distinguishable from the one before us, at least, in three important aspects.
Firstly, in that case, the statutory rule in question did not make any discrimination in relation to the source of recruitment, it simply provided that Graduates alone shall go into the higher cadre of Executive Engineers, irrespective of whether they were appointed as Assistant Engineers directly or by promotion.
In the present case, the impugned notification prescribes a qualifying test for promotion, not for all but only for one category of persons with reference to the manner in which they initially entered service.
Secondly, in Triloki Nath 's case the post of the Executive Engineer carries higher responsibility and duties of a supervisory character requiring higher mental equipment and administrative skill.
Thus, there, the classification rested on intelligible differentia having a direct nexus to the object (viz., administrative efficiency), to be achieved.
In the instant case, there is nothing on record to show that the duties discharged by the clerks of the Upper Division are substantially different from those in the Lower Division.
Thirdly, in the instant case the statutory rule does not warrant the classification made by the impugned Government Order.
The primary criterion for promotion to the Upper Division prescribed by Rule 28(b) (ii) in seniority if the person concerned is otherwise not unfit.
The 252 impugned Government Order impinges upon that statutory rule inasmuch as it lays down that even if a Lower Division Clerk who entered service as a result of exemption from possession minimum educational qualification, satisfied the criterion of seniority cum fitness prescribed by this Rule, he shall not be considered for promotion unless he qualifies in the test.
The relevant statutory Rules governing the appellant do not provide any minimum general education qualification for promotion to the Upper Division.
The case in point is Roshal Lal Tandon vs Union of India.
In that case, before the impugned notification was issued, there was only one rule of promotion for both the departmental promotees and the direct recruits, and that rule was seniority cum suitability, and there was no rule of promotion separately made for application to direct recruits.
As a result of the impugned notification, a discriminatory treatment was made in favour of the direct recruits, i.e. existing Apprentice Train Examiners who had already been absorbed in Grade 'D ' by March 31, 1966, because the notification provided that this group of Apprentice Train Examiners should first be accommodated en bloc in Grade 'C ' upto 80 per cent of vacancies reserved for them without undergoing any selection.
Ramaswami J., speaking for a Bench of five learned Judges, held that the impugned notification violated the guarantee under Articles 14 and 16 of the Constitution.
The reason was that once the direct recruits and promotees were absorbed in one cadre, they formed one class and they could not be discriminated against for the purpose of further promotion to the higher Grade 'C '.
In that case, it was not disputed that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was 'seniority cum suitability '.
The impugned notification was discriminatory because in the case of that category who were appointed as Train Examiners by promotion the aforesaid test of 'seniority cum suitability ' prescribed by the rule for further promotion to the higher Grade 'C ' was abandoned and, instead, selection on merit only was adopted.
The principle enunciated in Roshan Lal Tandon vs Union of India applied with greater force to the facts of the present case because here the classification made by the impugned Government Order is not only unfair and irrational but also, virtually amounts to abandonment of the test of seniority cum fitness provided in rule 28 (b) (ii).
The last point for consideration is, whether it was proper for the High Court to issue a positive direction requiring the appellant to 253 promote the respondent to the Upper Division and thereafter to determine his rank in the cadre of Upper Division Clerks.
Ordinarily, the court does not issue a direction in such positive terms, but the peculiar feature of this case is that it has not been disputed that Koyakutty respondent satisfies the two fold criterion for promotion laid down in the statutory rule 28(b)(ii).
Indeed, the District Registrar, Palghat, who was impleaded as respondent 3 in the writ petition, expressly admitted in paragraph 8 of his counter affidavit filed before the High Court, "that the seniority of service is the basis of promotion from the ranks of Lower Division Clerks to the ranks of Upper Division Clerks provided they are fully qualified by passing the departmental tests for the purpose".
It was never the case of the Registrar that Koyakutty was not otherwise fit for promotion.
Indeed, even in the grounds of appeal to this Court, incorporated in the Special Leave Petition, it is not alleged that Koyakutty did not satisfy the criterion of seniority cum fitness prescribed by Rule 28(b)(ii).
The position taken by the appellant, throughout, was that this rule should be deemed to have been "supplemented" by the impugned Government Notification.
It is not correct that the impugned Notification merely "supplements" or fills up a gap in the statutory rules.
It tends to super add or super impose by an Executive fiat on the statutory rules something inconsistent with the same.
Since the existence of both the criteria viz., seniority and fitness for promotion to the Upper Division prescribed by the statutory Rule 28(b)(ii), in the case of Koyakutty was not disputed, the High Court was justified in issuing the direction, it did.
For the foregoing reasons the appeal fails and is dismissed with costs.

dataset_name: IN-Abs

summary/full:
The respondent, who originally belonged to the Madras Ministerial Service, was allotted to the State of Kerala as a lower division clerk on the reorganisation of States.
On the ground that he belonged to a community which was educationally backward the State Government of Madras appointed him as a lower division clerk relaxing the requirements of r. 29 of the Special Rules for Madras Ministerial Service which prescribed minimum general educational qualification for appointment to service under the State Government.
In 1957 the State Government of Kerala issued an order providing that, until common service rules were framed, every officer in the service of the new State of Kerala would be bound by the service rules of Travancore Cochin or Madras, to which he belonged prior to November 1, 1956.
Thereafter in supersession of all earlier rules the Kerala State and Subordinate Service Rules, 1958 were framed.
Rule 1 of the General Rules in Part II stated that the rules in that part shall apply to all State and Subordinate Services and the holders of all posts appointed before or after the date on which those rules came into force.
The Special Rules contemplated by r. 2(16) of Part I had however, not been framed.
Rule 28(b) (ii) of Part II provided that all promotions or appointments by transfer [other than those mentioned in cl.
(i) of this rule] shall be made in accordance with the seniority, subject to the person 's fitness for appointment.
In 1961, persons who did not possess the general minimum educational qualifications but were appointed as lower division clerks, were allowed to sit for a qualifying test for promotion to upper division clerks.
In the gradation list of officiating lower division clerks prepared, the respondent was shown at No. 1 place.
Even so, when two vacancies of upper division clerks occurred, two persons junior to him in the gradation list were promoted ignoring the respondent.
In his writ petition under article 226 of the Constitution the respondent contended that the exemption granted to him removing the bar of educational qualification enured to him for all purposes, and therefore, promotions of two juniors, ignoring r. 28(b)(ii) under which seniority was the basis for promotion, amounted to denial of equal treatment guaranteed under articles 14 and 16 of the Constitution.
243 A single Judge of the High Court dismissed the petition on the ground that the exemption granted was for the limited purpose of enabling the respondent to be appointed and continued in the post of lower division clerk but that it did not remove the bar of minimum qualification for promotion.
On appeal the division bench reversed the order of the single Judge, and directed the Government to promote him and determine his rank in the cadre of upper division clerks.
On appeal to this Court it was contended on behalf of the appellant that (1) the Special Rules contemplated by r. 2 of Part I read with the State Government 's order of 1957, were the Special Rules contained in the Madras Ministerial Service Rules; (2) even if r. 28(b)(ii) was applicable it was well within the power of the State Government to prescribe a test to judge the fitness of persons who were exempted from the minimum educational qualifications when appointed as lower division clerks and (3) there was a reasonable basis for classifying those persons who did not possess the minimum educational qualification as a category apart from those who possessed such a qualification.
Dismissing the appeal, ^ HELD: 1 (a) The Special Rules, for the purposes of Kerala Rules of 1958, would be as defined in r. 2(16) of Part I.
That definition contemplated that Special Rules would be framed by the Governor but no such rules had been framed.
[248 H] (b) In the matter of promotion as on upper division clerk the respondent was governed by r. 28(b)(ii) in Part II.
[249 A] 2.
It cannot be said that the impugned notification merely "supplemented" or filled up a gap in the statutory rules.
It tended to superimpose or super add by an executive flat on the statutory rules something inconsistent with the same.
If the statutory rules framed by the Governor or any law enacted under article 309 is silent on any particular point, the government can fill up that gap and supplement the rule by issuing administrative instructions not inconstant with the statutory provisions already framed or enacted.
[253 D; 250 C] In the instant case, however, it could not be said that there was a gap in the statutory provisions in the matter of promotion from the cadre of lower division clerks to that of upper division clerks.
3(a) The classification made by the impugned government order was not only unfair and irrational but also, virtually amounted to abandonment of the test of seniority cum fitness provided in r. 28(b)(ii).
[252 G H] (h) By virtue of section 3 of the Kerala Public Services Act, 1968, the 1958 Rules were deemed to have been made under the Act and were continued until superseded by rules made under that Act.
No Special Rules relating to upper division clerks having been made the General Rules in Part II would be applicable to upper division clerks, also.
[250 E] (c) The 1958 Rules superseded all earlier rules.
The General Rules did not provide any minimum general educational qualification for promotion to 244 the cadre of upper division clerks.
There is nothing in r. 28(b)(ii) or elsewhere, which provides that a lower division clerk would be presumed to be unfit for promotion to upper division unless he possessed the minimum general educational qualification or passed the qualifying test.
[250 G H] There is nothing to show that the respondent was considered for promotion but was found unfit.
[251 B] (d)(i) The impugned notification prescribed the qualifying test for promotion, not for all, but only for one category of persons with reference to the manner in which they initially entered service.
The respondent and others like him, appointed as lower division clerks after granting them exemption, had been singled out for this discriminatory treatment.
[251 F] (d)(ii) There is nothing on record to show that the duties discharged by the clerks of the upper division were substantially different from those in the lower division.
[251 G H] (iii) The statutory rule did not warrant the classification made by the impugned order.
It impinged upon the statutory rule inasmuch as it laid down that even if a lower division clerk who entered service as a result of exemption from possessing minimum educational qualification satisfied the criterion of seniority cum fitness prescribed by this rule, he shall not be considered for promotion unless he qualified in the test.
The relevant rule did not provide any minimum general educational qualification for promotion to upper division.
[252 A B] Roshan Lal Tandon vs Union of India, ; ; followed.
State of Jammu & Kashmir vs Triloki Nath Khosa & Ors. ; ; held inapplicable.
Though ordinarily the court would not issue a direction requiring the government to promote an aggrieved employee and thereafter determine his rank in the cadre, in the peculiar facts of this case the respondent satisfied the two fold criterion for promotion laid down in r. 28(b)(ii) and since the existence of both the criteria for promotion were not in dispute the High Court was justified in issuing the direction, it did.
[253 A B; E]