judgement:
Appeals Nos. 565 566 of 1963.
Appeals by special leave from the judgment and order dated January 31, 1962 of the Mysore High Court in Writ Petitions Nos. 940 and 1056 of 1961.
G.S. Pathak and M/s. Rajinder Narain and Co. for the appellants.
R. Gopalakrishnan, for the respondent.
The Judgment of the Court was delivered by Shah, J.
These appeals raise the question whether the Academic Council of the Mysore University was competent in exercise 230 of the powers conferred by sections 22, 23 and 43 of the Mysore University Act 23 of 1956 to frame cl. 3(c) of the Regulations relating to the grant of the degree for Bachelor of Veterinary Science (B.V.Sc.).
The Mysore University Act 23 of 1956 hereinafter referred to as 'the Act ' was enacted to provide for the reorganisation of the University of Mysore and other incidental matters.
The powers of the University are described in section 4.
Section 21 provides for the constitution of the Academic Council which is one of the authorities of the University designated under section 13 and section 22 sets out the powers of the Academic Council.
It provides: "The Academic Council shall, subject to the provisions of this Act, have the control and general regulation of teaching, courses of studies to be pursued, and maintenance of the standards thereof and shall exercise such other powers and perform such other duties as may be prescribed." By section 23 other powers of the Academic Council are prescribed.
Insofar as it is material, the section provides: "In particular and without prejudice to the generality of the powers specified in section 22, the Academic Council shall have, subject to the provisions of this Act, the following powers, namely: (a) x x x x (b) x x x x (c) to make Regulations relating to courses, schemes of examinations and conditions on which students shall be admitted to the examinations, degrees, diplomas, certificates and other academic distinctions;" Section 43 of the Act sets out the scope of the Regulations.
enacts: "Subject to the provisions of this Act, the Regulations may provide for the exercise of all or any of the powers, enumerated in "sections 22 and 23 of this Act and for the following matters, namely: (i) the admission of students to the University; (ii) the recognition of the examinations and degrees of other Universities as equivalent to the examinations and degrees of the University; (iii) the University courses and examinations and the conditions on which students of the University and affiliated colleges and other University institutions shall be admitted to examinations for the degrees, diplomas and certificates of the University; and 231 (iv) the granting of exemptions.
" In exercise of the powers conferred by sections 22, 23 and 43, Academic Council made Regulations relating to the grant of a degree for Bachelor of Veterinary Science.
Clause 3(c) of the Regulations is as follows: "No candidate who fails four times shall be permitted to continue the course.
" The Mysore Veterinary College, Hebbal, Bangalore, is one of the colleges affiliated to the University of Mysore for training students for the degree course in Bachelor of Veterinary Science (B.V.Sc.).
These two appeals arise on facts which are closely parallel.
Gopala Gowda respondent in C.A. No. 565 of 1963 was admitted in the year 1958 as a student in the First Year Course in the Mysore Veterinary College.
Gopala Gowda was declared unsuccessful in four successive First Year Course examinations.
The Controller of Examinations, Mysore University, then informed Gopala Gowda by letter dated August 2, 1961 that he "had lost" his right to continue studies for the Bachelor of Veterinary Science (B.V.Sc.) course under Regulation 3(c) of the Regulations governing the course of study framed by the University leading to the degree of the Bachelor of Veterinary Science (B.V.Sc.).
Gopala Gowda then presented a petition in the High Court of Mysore praying that, for reasons set out in his affidavit, the High Court do issue a writ quashing the order communicated by the Controller of Examinations in his letter dated August 2, 1961 and do further direct the University of Mysore and the Controller of Examinations to permit him to appear for the subsequent examinations and to prosecute his training for the Bachelor of Veterinary Science Course.
The other respondent Bheemappa Reddy had also failed to satisfy the examiners in four successive First Year Course examinations commencing from April 1959, and on being intimated by the Controller of Examinations that he will not be permitted to continue his training for the Bachelor of Veterinary Science (B.V. Sc.) course under Regulation 3(c), he flied a similar writ petition in the High Court.
The High Court of Mysore held that Regulation 3(c) of the Regulations governing the course of study leading to conferment of the degree of Bachelor of Veterinary Science of the Mysore University could not be said "to subserve the purpose of maintaining the standards mentioned in section 22 of the Mysore University Act" and on that account was beyond the competence of the Academic Council or the University and those bodies had no power to prevent Gopala Gowda and Bheemappa from prosecuting their studies and from appearing at the subsequent examinations.
With special leave.
the University of Mysore, the Controller of Examinations and the Principal of the Mysore Veterinary College, have appealed.
In the view of the High Court, under section 22 of the Act the Academic Council could prescribe minimum qualifications for 232 admission to a degree course in an affiliated college, and also could prescribe standards which qualify a candidate .for admission to the degree or academic distinction, but the Council had not the power to prescribe a condition on the 'satisfaction of which a student:admitted to the Course could prosecute his study in the course to which he had been admitted.
Power to frame Regulations for "maintenance of standards" within the meaning of section 22 and prescribing conditions on which a student shall be admitted to an examination within the meaning of section 23(3) (c)did not.
in the opinion.
of the High Court, import power to make Regulation preventing a student admitted to a course from prosecuting his study, for the only consequence of failure in an examination is that the student does not qualify himself for admission to the degree sought by him.
and the University would be entitled to withhold conferment of the degree.
but not to obstruct the prosecution of the course of study.
The expression "maintenance of standards" in the view of the High Court could only take in considerations such as undergoing a course of study and keeping a prescribed minimum attendance to an institution maintained or recognised by the University, but it does not and "cannot be taken to mean that by reason only of the fact that a student has not attained the standard of knowledge or proficiency required for passing the examination within that period, he can be said to be for all times incapable of attaining that standard.
" The High Court proceeded to observe "The power to maintain certain standards before a degree or other academic distinction is conferred upon a person involves the power to withhold the conferment of that degree unless a person attains the necessary standard, but it cannot either in logic or in justice involve the power to refuse to permit a person to attain that standard.
That power can and should be exercised at the time of admission into the course of study if the University is of the opinion that the applicant for .admission into the course does not even possess the minimum suitability for taking that course of study.
Once it admits him into the course of study, it must be held to have entertained the opinion that he does have the minimum suitability to take that course which means that he has the capacity by undergoing the course of study to attain the standard necessary for receiving the degree.
" We are unable to agree with the view expressed by the high Court.
The Academic Council is invested with the power of controlling and generally regulating teaching,.
courses of studies to be pursued.
and maintenance of the standards thereof.
and for those purposes the Academic Council is competent to make regulations.
amongst others, relating to the courses, schemes of examination and conditions on which students shall be admitted to the examinations.
degrees.
diplomas.
certificates and other academic distinctions.
The Academic Council is thereby invested with power to control the entire academic life of the student from the stage of 233 admission.
to a course of study to the.
ultimate conferment of a degree or academic distinction.
Admission to a course or branch of study depending upon possession of the minimum qualifications prescribed does not divest the Academic.
Council of its control over the ' academic career of the student, for the Council has for maintaining standards the power to prescribe schemes of examinations, arid also to prescribe conditions on which students.
Shall be admitted to the examinations.
"Power to prescribe conditions, On which, a student may be admitted to the examinations, in our opinion, necessarily implies the power to refuse to admit a student in certain contingencies, for the power to admit to an examination implies the power to weed out students who have on the application of a reasonable test proved themselves to be unfit to continue the course or persecute training in that course.
If on account of general inaptitude for being trained in a course or on account of supervening disability to prosecute a course of study, a student admitted to that course is found by the Academic Council to be unfit to prosecute his training, it would, in our judgment, be within the power of the Academic Council, in exercise of its authority to control and maintain standards, and also of its authority to prescribe conditions on which students may be admitted to examinations, to direct that the student shall discontinue training in that course.
And failure by a student to qualify for promotion or degree in four examinations, is certainly a reasonable Lest of such inaptitude or supervening disability.
If after securing admission to an institution imparting training for professional courses, a student may be held entitled to continue indefinitely to attend the institution without adequate application and to continue to offer himself for successive examinations, a lowering of academic standards would inevitably result.
Power to maintain standards in the course of studies.
in our judgment, confers authority not merely to prescribe minimum qualifications for admission, courses of study, and minimum attendance at an institution which may qualify the student for admission to the examination, but also authority to refuse to grant a degree, diploma, certificate or other academic distinction to students who fail to satisfy the examiners at the final examination, and to direct that a student who is proved not to have the ability or the aptitude to complete the course within a reasonable time to discontinue the course.
There is no warrant for restricting the expression "maintenance of the standards" only to matters such as minimum attendance, length of the course and prescription of minimum academic attainments.
The High Court was therefore in error in holding that the Academic Council had no power to prescribe Regulation 3(c).
We are informed at the Bar, however, that since the High Court decided.
the case on January 31, 1962, the two respondents were permitted to continue their courses of study and they have appeared for the subsequent examinations and they were declared to have duly 234 passed their second and third year examination and have been permitted to keep terms for the degree examination.
Even though, the view taken by the High Court was erroneous, we do not think.
having regard to the fact that the respondents were permitted to continue their course of study, the University not having applied for any interim orders pending disposal of these appeals, that any order should be passed in these appeals so as to deprive the respondents of the training they have received.
These appeals are filed with special leave, and in the exceptional circumstances of the case, we do not think we would be justified, merely because we disagree with the interpretation of the High Court of the relevant regulation, in making an effective order against the respondents so as to nullify the results declared by the University concerning them in respect of the second and third year examinations.
The appeals are therefore dismissed.
There will be no order as to costs.
Appeals dismissed.

summary/full:
Under Sections 22, 23, and 43 of the Mysore University Act, the Academic Council of the University was empowered, inter alia, to control and operate the teaching, courses of study, to secure maintenance of standards, etc., and to make necessary regulations including those relating to examinations and conditions on which students may be admitted to examinations, degrees, diplomas, etc.
In exercise of these powers, the Academic Council made certain Regulations relating to the grant of a degree of Bachelor of Veterinary Science and by clause 3(c of these Regulations, it was provided that no candidate who failed an examination four times, would permitted to continue the course.
The respondents were declared unsuccessful in four successive First Year Course examinations and the Controller of Examinations informed each respondent that he had lost their right to continue studying for the degree.
The respondents thereupon filed petitions in the High Court, praying for the issue of writs quashing the orders communicated to them and directing the University to permit them to appear for the subsequent examinations and to continue their studies.
The High Court held that Regulation 3(c) was beyond the competence of the Academic Council and the University.
On appeal to this Court: HELD: that power to maintain standards in the course of studies confers authority not merely to prescribe minimum qualifications for admission, courses of study, minimum attendance at an institution which may qualify the student for admission to the examination, etc.,but also authority to refuse to grant a degree, diploma, or other academic distinction to students who fail at the final examination and to direct that a student, who is proved not to have the ability or the aptitude to complete the course within a reasonable time,discontinue the course.
There is no warrant for restricting the expression "maintenance of standards" only to matters such as minimum attendance, length of the course and prescription of minimum academic attainments.
[233F H]


judgement:
Civil Appeal No. 50 of 1965.
Appeal by special leave from the order dated January 6, 1965 of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ No. 8 D of 1965.
M.C. Setalvad, Ravinder Narain, J.B. Dadachanji and O.C. Mathur, for the appellant.
C.K. Daphtary, Attorney General, S.V. Gupte, Solicitor General, B.R.L. lyengar and R.H. Dhebar, for the respondent No. 1.
Santosh Chatterjee B. B. Ratho and M.L. Chhibber, for respondent No. 2.
The Judgment of the Court was .delivered by Gajendragadkar, C.J.
The principal question which this appeal by special leave raises for our decision relates to the construction of Article 192 of the Constitution.
The said question arises in this way.
The appellant Brundaban Nayak was elected to the Legislative Assembly of Orissa from the Hinjili 23 Constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State.
On August 18, 1964, respondent No. 2, P. Biswal, applied to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under article 191(1)(e) of the Constitution read with section 7 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act).
In his application, respondent No. 2 made several allegations in support of his contention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly.
On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the ,said complaint to respondent No. 1, the Election Commission of India, under the instructions of the Governor.
In this communication, the Chief Secretary stated that a question had arisen under Article 191(1) of the Constitution whether the member in 55 question had been subject to the disqualification alleged by respondent No. 2 and so, he requested respondent No. 1 in the name of the Governor to make such enquiries as it thinks fit and give its opinion for communication tO the Governor to enable him to give a decision on the question raised.
On November 17, 1964, respondent No. 1 served a notice on the appellant forwarding to him a copy of the letter received by it from respondent No. 2 dated the 4th November, 1964.
The notice intimated to the appellant that respondent No. 1 proposed to enquire in the matter before giving its opinion on the Governor 's reference, and, therefore, called upon him to submit on or before the 5th December, 1964, his reply with supporting affidavits and documents, if any.
The appellant was also told that the parties would be heard in person or through authorised counsel at 10 30 A.M. on the 8th December, 1964.
in the office of respondent No. 1 in New Delhi.
On December 1, 1964, the appellant sent a telegram to respondent No. 1 requesting it to adjourn the hearing of the matter.
On the same day, he also addressed a registered letter to respondent No. 1 making the same request.
Respondent No. 2 objected to the request made by the appellant for adjourning the hearing of the complaint.
On December 8, 1964.
respondent No. 1 took up this matter for consideration.
Respondent No. 2 appeared by his counsel Mr. Chatterjee, but the appellant was absent.
Respondent No. 1 took the view that an enquiry of the nature contemplated by article 192(2) must be conducted as expedtiously as possible, and so, it was necessary that whatever his other commitments may be, the appellant should arrange to submit at least his statement in reply to the allegations made by respondent No. 2, even if he required some more time for filing affidavits and/or documents in support of his statement.
Even so, respondent No. 1 gave the appellant time until the 2nd January, 1965, 10 30 A.M. when it ordered that the matter would be heard.
On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee.
On this occasion, Mr. Patnaik raised the question about the maintainability of the proceedings before respondent No. 1 and its competence to hold the enquiry.
Mr. Chatterjee repelled Mr. Patnaik 's contention.
Respondent No. 1 over ruled Mr. Patnaik 's contention and recorded its conclusion that it was competent to hold the enquiry under article 192(2).
Mr. Patnaik then asked for adjournment and made it clear that he was making the motion for adjournment without submitting to the jurisdiction of respondent No. 1.
In view of the attitude adopted by Mr. Patnaik, respondent No. 1 took the view that it would be pointless to adjourn the proceedings.
and so, it heard Mr. Chatterjee in support of the case of respondent No. 2.
After hearing Mr. Chatterjee.
respondent No. 1 reserved its orders on the enquiry and noted that its 56 opinion would be communicated to the Governor as early as possible.
When matters had reached this stage before respondent No. 1, the appellant moved the Punjab High Court under article 226 of the Constitution praying that the enquiry which respondent No. 1 was holding, should be quashed on the ground that it was incompetent and without jurisdiction.
This writ petition was summarily dismissed by the said High Court on January 6, 1965.
Thereafter, the appellant applied to this Court for special leave on January 8, 1965, and special leave was granted to him on January 14, 1965.
The appellant then moved this Court for stay of further proceedings before respondent No. 1, and the said prayer was granted.
When special leave was granted to the appellant, this Court had made an order that the preparation of the record and the filing of statements of the case should be dispensed with and the appeal should be heard on the paper book filed along with the special leave petition and must be placed for hearing within three weeks.
That is how the matter has come before us for final disposal.
Since the Punjab High Court had dismissed the writ petition filed by the appellant in limine, neither of the two respondents had an opportunity to file their replies to the allegation made by the appellant in his writ petition.
That is why both respondent No. 1 and respondent No. 2 have filed counter affidavits in the present appeal setting out all the relevant facts on which they wish to rely.
The appellant has filed an affidavit in reply.
All these documents have been taken on the record at the time of the hearing of this appeal.
It appears from the affidavit filed by Mr. Prakash Narain.
Secretary to respondent No. 1, that when notice issued by respondent No. 1 on the 17th November, 1964, was served on the appellant, through oversight the original complaint flied by respondent No. 2 before the Governor of Orissa and the reference made by the Governor to respondent No. 1 were not forwarded to the appellant.
At the hearing before us, it is not disputed by the appellant that a complaint was in fact made by respondent No. 2 before the Governor of Orissa and that the Governor had then referred the matter to respondent No. 1 for its opinion.
Let us then refer to Article 192 which fails to be construed in the present appeal.
Before reading this articl, it is relevant to refer to article 191.
Article 191(1) provides that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if, 57 to the Governor.
As we have already indicated, respondent No. 2 's case is that the appellant has incurred the disqualification under article 191(1)(e) read with section 7(d) of the Act, and this disqualification has been incurred by him subsequent to his election.
It is well settled that the disqualification to which article 191(1) refers, must be incurred subsequent to the election of the member.
This conclusion follows from the provisions of article 190(3)(a).
This Article refers to the vacation of seats by members duly elected.
Sub Article (3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1) of article 191, his seat shall thereupon become vacant.
Incidentally, we may add that corresponding provisions with regard to the disqualification of members of both Houses of Parliament are prescribed by Articles 101,102 and 103 of the Constitution.
It has been held by this Court in Election Commission, India vs Saka Venkata Subba Rao and Union of lndia Intervener/that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after being elected as such.
There is no doubt that the allegations made by respondent No. 2 in his complaint before the Governor, prima facie, indicate that the disqualification on which respondent No. 2 relies has arisen subsequent to the election of the appellant in 1961.
Reverting then to article 192, the question which we have to decide in the present appeal is whether respondent No. 1 is entitled to hold an enquiry before giving its opinion to the Governor as required by article 192(2).
Let us read article 192: "(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question.
the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion".
Mr. Setalvad for the appellant contends that in the present case.
no question can be said to have arisen as to whether the appellant has become subject to any of the disqualifications mentioned in clause (1) of article 191, because his case is that such a question can be raised only on the floor of the Legislative Assembly and can be raised by members of the Assembly and not by an ordinary citizen or voter in the form of a complaint to the Governor.
Mr. Setalvad did not dispute the fact that this contention has not been taken by the appellant either in his writ petition before the High Court or even in his application for special leave before this Court.
In fact, the case sought to be made out by the appellant in the present proceedings appears to be that though a question may have arisen about (1)[1953]S.C.R.1144.
58 his disqualification, it is the Governor alone who can hold the enquiry and not respondent No. 1.
Even so, we have allowed Mr. Setalvad to raise this point, because it is purely a question of law depending upon the construction of article 192(1).
In support of his argument, Mr. Setalvad refers to the fact that article 192 occurs in Chapter III of Part VI which deals with the State Legislature, and he invited our attention to the fact that under article 199(3) which deals with a question as to whether a Bill introduced in the Legislature of a State which has a Legislative Council is a Money Bill or not, the decision of the Speaker of the Legislative Assembly of such State thereon shall be final.
He urges that just as the question contemplated by article 199(3) can be raised only on the floor of the House, so can the question about a subsequent disqualification of a member of a Legislative Assembly be raised on the floor of the House and nowhere else.
He concedes that whereas the question contemplated by article 199(3) has to be decided by the Speaker and his decision is final, the authority to decide the question under article 192(1) is not vested in the Speaker.
but is vested in the Governor.
In other words, the context in which article 192(1) occurs is pressed into service by Mr. Setalvad in support of his argument.
Mr. Setalvad also relies on the fact that article 192(1) provides that if any question arises, it shall be referred for the, decision of the Governor and this clause, says Mr. Setalvad, suggests that there should be some referring authority which makes a reference of the question to the Governor for his decision.
According to him, this referring authority, by necessary implication, is the Speaker of the Legislative Assembly.
There is another argument which he has advanced before us in support of this construction.
Article 192(2) requires that whenever a question is referred to the Governor, he shall obtain the opinion of the Election Commission and Mr. Setalvad suggests that it could not have been the intention of the Constitution to require the Governor to refer to the Election Commission every question which is raised about an alleged disqualification of a member of a Legislative Assembly even though such a question may be patently frivolous or unsustainable.
We are not impressed by these arguments.
It is significant that the first clause of article 192(1) does not permit of any limitations such as Mr. Setalvad suggests.
What the said clause requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause.
All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the ' first part of article 192(I) is plainly inconsistent with the words used in the said clause.
59 Then as to the argument based on the words "the question shall be referred for the decision of the Governor", these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision.
These words merely emphasise that any question of the type contemplated by clause (1) of article 192 shall be decided by the Governor and Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the Courts.
That is the significance of the words "shall be referred for the decision of the Governor".
If the intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, article 192(1) would have been worded in an entirely different manner.
We do not think there is any justification for reading such serious limitations in article 192(1) merely by implication.
It is true that article 192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion.
It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway.
The object of article 192 is plain.
No person who has incurred any of the disqualifications specified by article 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by article 190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in article l 91 (1) and should, therefore, vacate his seat.
The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of article 192(2).
Therefore, we must reject Mr. Setalvad 's argument that a question has not arisen in the present proceedings as required by article 192(1).
The next point which Mr. Setalvad has raised is that even if a question is held to have arisen under article 192(1), it is for the Governor to hold the enquiry and not for the Election Commission.
He contends that article 192(1) requires the question to be referred to the Governor for his decision and provides that his decision shall be final.
It is a normal requirement of the rule of law that a person 60 who decides should be empowered to hold the enquiry which would enable him to reach his decision, and since the Governor decides the question, he must hold the enquiry and not the Election Commission.
That, in substance, is Mr. Setalvad 's case.
He concedes that article 192(2) requires that the Governor has to pronounce his decision in accordance with the .opinion given by the Election Commission; that is a Constitutional obligation imposed on the Governor.
He, however, argues that the Election Commission which has to give an opinion, is not competent to hold the enquiry, but it is the Governor who should hold the enquiry and then forward to the Election Commission all the material collected in such an enquiry to enable it to form its opinion and communicate the same to the Governor.
We are satisfied that this contention also is not well founded.
The scheme of Article 192(1) and (2) is absolutely clear.
The decision on the question raised under article 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission.
The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor.
When the Governor pronounces his decision under article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself; he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion".
In regard to complaints made against the election of members to the Legislative Assembly.
the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act.
That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission.
Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor.
If this scheme of article 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad 's contention that the enquiry must be held by the Governor.
It is the opinion of the Election Commission which is in substance decisive and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission.
the Election Commission should proceed to try the complaint before it gives its opinion.
Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof.
Mr. Setalvad faintly attempted to argue that the failure of respondent No. 1 to furnish the appellant with a copy of the complaint made by respondent No. 2 before the Governor and of the 61 order of reference passed by the Governor ,forwarding the said complaint to respondent No. 1, rendered the proceedings before respondent No. 1 illegal.
This contention is plainly misconceived.
As soon as respondent No. 1 received the complaint and the order of reference which was communicated to it by the Chief Secretary to the Government of Orissa, it was seized of the matter and it was plainly acting within its jurisdiction under article 192(2) when it served the notice on the appellant.
As we have already indicated, it was through oversight that the two documents were not forwarded to the appellant along with the notice, but that cannot in any sense affect the jurisdiction of respondent No. 1 to hold the enquiry.
In fact, as respondent No. 2 has pointed out in his affidavit, the fact that a reference had been made by the Governor to respondent No. 1 was known all over the State, and it is futile for the appellant to suggest that when he received the notice from respondent No. 1, he did not know that a complaint had been made against him to the Governor alleging that subsequent to his election, he had incurred a disqualification as contemplated by article 191(1)(e) of the Constitution read with section 7(d) of the Act.
It would have been better if the appellant had not raised such a plea in the present proceedings.
In this connection, we ought to point out that so far the practice followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under article 192(2) and article 103(2).
In fact, the learned Attorney General for respondent No. 1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President under article 103(2) or to the Governor under article 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively under article 103(1) and article 192(1).
He suggested that the main object of the appellant in taking such a plea was to prolong the proceedings before respondent No. 1.
In the first instance, the appellant asked for a long adjournment and when that request was refused by respondent No. 1, he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the appellant by respondent No. 2.
We cannot say that there is no substance in this suggestion.
There is one more point to which we may refer before we part with this appeal.
Our attention was drawn by the learned Attorney General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Governor on May 30, 1964, on a similar question under article 192(2) in respect of the alleged disqualification of Mr. Biren Mitra, a member of the Orissa Legislative Assembly, "Where, as in the present case", observed the Chief Election Commissioner, "the relevant facts are in dispute and can only be ascertained after a proper enquiry, the Commission finds itself in the unsatisfactory position of having to give a decisive L/B(D)2SCI 6 62 opinion an the basis of such affidavits and documents as may be produced before it by interested parties.
It is desirable that the Election Commission should be vested with the powers of a commission under the Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses".
We would like to invite the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under article 103(2) or article 192(2) appears to be genuine, and so Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf.
The result is, the appeal fails and is dismissed with costs.
In view of the fact that the present proceedings have unnecessarily protracted the enquiry before respondent No. 1, we suggest that respondent No. 1 should proceed to consider the matter and forward its opinion to the Governor as early as possible.
It is hardly necessary to point out that in case the allegations made against the appellant are found to be valid, and the opinion of respondent No.1 is in favour of the case set out by respondent No. 2, complications may arise by reason of the Constitutional provision prescribed by article 190(3).
In view of the said provision, it is of utmost importance that complaints made under article 192(1) must be disposed of as expeditiously as possible.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was elected to the Orissa Legislative Assembly in 1961.
In 1964 respondent No. 2 made a complaint to the Governor alleging that the appellant had incurred a disqualification subsequent to his election as contemplated in article 191(1)(e) of the Constitution read with section 7 of the Representation of the People Act (Act 43 of 1951).
The Chief Secretary Orissa forwarded the said complaint ,to respondent No. 1, the Election Commission of India, under the instructions of the Governor, requesting it to make enquiry into the complaint and give its opinion.
Accordingly respondent No. 1 served notice on the appellant and called upon him to submit his reply.
The appellant challenged the jurisdiction of respondent No. 1 to conduct the enquiry and filed a writ petition in the High Court.
On its being dismissed he appealed to this Court by special leave.
It was contended on behalf of the appellant that no question under article 192(1) had arisen in the case as a question relating to the disqualification of a member under article 191(1)(e) could not be raised by an ordinary citizen.
It was urged that considering the context of article 192 and the provisions of article 199 the question could only be raised on the floor of the House and thereafter referred to the Governor by the Speaker of the Assembly.
It was further contended that only the Governor who had to give the decision could hold the enquiry, and the Election Commission was only to give its opinion on the materials forwarded to it by the Governor.
HELD: (i) The argument t that no question had arisen under article 192(1) could not be accepted.
What Art 192(1) requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised are not relevant for the purpose of the application of this clause.
[59 H] The words in article 192(1) that "the question shall be referred for the decision of the Governor" merely emphasise that any question of the type contemplated in the said clause shall be decided by the Governor and Governor alone; no other authority, including the courts, can decide it.
Ii the intention was that the question must b.e raised first in the legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, article 192(1) would have been worded in an entirely different manner.
[59 B C] The object of Art 192 is that no member who has incurred a disqualification under article 191(1) should b.e allowed to continue as a member.
The Constitution itself in Art 190(3) provides for the vacation of the seat of such a member.
Further it is in the interests of the member 's constituency that no longer being entitled to the status of a member.
he should be removed.
In view 54 of these considerationS a citizen is certainly entitled to make a complaint to the Governor about the disqualification incurred by a member under article 191(1).
E G] (ii) The enquiry for the purpose of the decision under article 192 has to be held by the Election Commission and not by the Governor.
When the Governor pronounces his decision under article 192(1) he is not required to consult his Council of Ministers; he has merely to forward 'the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion".
It is the opinion of the Election Commission which is in substance decisive, and it is legitimate that the Commission should proceed to try the complaint before it gives its opinion.
[60 D H] [Legislation to vest Election Commission with powers of a Commission under the Commissions of Enquiry Act, 1952, recommended.] [62 B]


judgement:
Appeal No. 12 of 1953.
Appeal from the Judgment and Decree dated the 31st March, 1949, of the High Court of Judicature at Bombay (Chagla C.J., Weston and Dixit JJ.) in First Appeal No. 175 of 1946, arising out of the Judgment and Decree dated the 28th February, 1946, of the Court of the Civil Judge, Senior Division at Broach in Special Suit No. 9 of 1941.
K. section Krishnaswamy Aiyangar (H. J. Umrigar, with him) for the appellants.
C. K. Daphtary, Solicitor General for India (J. B. Dadachanii, with him) for respondents Nos.
I and 2. 1953.
November 18.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal is directed against a judgment and decree of the Bombay High Court, dated the 31st March, 1949, confirming, on appeal, the decision of the Civil Judge, Senior Division, at Broach, in Special Suit No. 9 of 1941.
The facts of the case, though a bit long, are not in controversy at the present stage and the entire dispute bet ween the parties centres round certain points of law relating to the rights of the reversioners, in whose favour a deed of surrender was executed by a Hindu widow, to recover 341 possession of the properties, belonging to the last male owner, during the lifetime of the widow from persons who acquired title to the same by adverse possession against the widow.
To appreciate the contentions that have been raised by the parties before us, it will be convenient to give a brief narrative of the material facts in their chronological order.
A reference to the short genealogical table given below will show at once the relationship between the parties to the present litigation.
Jijibhai | | | | | | Tribhovan Kashibhai | (died in 1914) | | Mathurbhai | | (diedin 1924) Shankarabhai Rukmini== ==Hirabai (died in 1922) Manubhai | ==Bai Kashi (husband) | (widow) | unjabhai (Deft. No. 3) | (died in 1931) | | | | | | | | | Natvarlal Ravajibhai Dadubhai RajiniKant (Deft. No. 1) (Deft.
No. 2) (Piff.1) (Plff. 2) One Jijibhai, whose name appears at the head of the table, had two sons, Tribhovan and Kashibhai.
Tribhovan had a son named Mathurbhai who died in 1924 leaving, behind him, his widow Hirabai and a son Punjabhai.
Kashibhai died in 1914 leaving a son Shankarbhai and a daughter Rukmini.
Shankarbhai, whose property is the subject matter of dispute in the present case, died without any issue in 1922, leaving his widow Bai Kashi who is defendant No. 3 in the suit.
It is said, that there was a notional partition between Kashibhai and Mathurbhai in 1913 which effected a severance of their joint status without any actual division of properties by metes and bounds.
Mathurbhai died on 26th January, 1924, and on the 2nd of June following Hirabai, his widow, made an application to the District Judge for appointment of a guardian of the person and property of her minor son Punjabhai, alleging, inter alia, that the minor was the sole owner of the entire joint estate by right 342 of survivorship.
On the 1st of July, 1924, Bai Kashi, the widow of Shankarbhai, was served with a notice of this application.
On the 17th of July following, she purported to adopt a son named Sivabhai and in answer to the notice in the guardianship proceeding served upon her, put forward the claim of her adopted son.
The District Judge regarded the adoption to be invalid and by his order dated November 29, 1924, appointed the Deputy Nazir of his court as guardian of the properties of the minor Punjabhai, the properties including the share of Shankarbhai in the joint estate.
The Deputy Nazir took possession of all the properties on behalf of the minor and it is not disputed that Bai Kashi never got possession of any portion of these properties since then.
In 1926 Bai Kashi as the guardian of her infant adopted son Sivabhai brought a Title Suit, being Suit No. 180 of 1926, claiming partition of the joint family properties on the allegation that, by adoption, Sivabhai became a co owner to the extent of a half share in them.
The suit was resisted by Punjabhai represented by his court guardian and the main contention put forward on his behalf was that the adoption, by the widow, of Sivabhai was invalid in law.
This contention was given effect to by the trial judge and by his judgment dated the 4th July, 1927, the suit was dismissed.
An appeal was taken against this decision, on behalf of Sivabhai, to the High Court of Bombay, but the appeal was withdrawn on the 25th July, 1927.
Thereafter in 1930, Rukmini, the sister of Shankarbhai and the mother of the present plaintiffs, instituted a suit, being Suit No. 350 of 1930, for a declaration that the joint status of the family was disrupted by the notional partition effected between Mathurbhai and Kashibhai in 1913 and she, as the next heir of Shankarbhai, was entitled to succeed to Shankarbhai 's share of the properties on the death of Bai Kashi.
The trial judge was of opinion that there was, in fact, a severance of joint status by an informal partition between Mathurbhai and Kashibhai, but he dismissed the suit on the ground that a suit of this character was not maintainable in law.
343 Rukmini died soon after that and her two sons, who were then minors, represented by their father as next friend, pre ferred an appeal to the High Court against this order of dismissal.
The High Court allowed the appeal and gave a declaration in favour of the appellants to the effect that there was disruption of the joint family in the year, 1913.
This judgment is dated the 8th of February, 1939, and there after on the 30th of January, 1941, Bai Kashi executed a deed of surrender in favour of the plaintiffs relinquishing her widow 's estate in favour of the husband 's nearest rever sioners.
On the basis of this deed of surrender the plaintiffs brought the suit, out of which this appeal arises, in the Court of the Civil Judge, Broach, claiming possession of the disputed properties as the next heirs of Shankarbhai against the defendants who are the sons and heirs of Punjabhai.
Bai Kashi was impleaded as defendant No. 3 in the suit.
The suit was resisted by defendants I and 2 who raised a number of pleas in answer to the plaintiffs ' claim.
The material defence was of a, three fold character.
It was contended in the first place that there was no partition between Mathurbhai and Kashibhai as alleged by the plaintiffs and the family being still joint when Shankarbhai died, the entire joint estate vested in Mathurbhai by right of survivorship.
It was alleged in the second place, that even if the family had separated, the adopted son of Bai Kashi being a nearer heir the plaintiffs had no title to the property.
The last and the main defence was that the defendants having acquired a title by adverse possession against the widow, and the widow having lost whatever interest she had in her husband 's property, the deed of surrender was invalid, and even if it was valid, the surrenderees could not claim possession so long as the widow was alive.
The trial court overruled all these contentions and decreed the plaintiff 's suit.
The defendants I and 2 preferred an appeal against this decision to the High Court of Bombay and the appeal first came up for hearing before a Division Bench consisting of Chagla C.J., and Dixit J.
The learned Judges, by their judgment 344 dated the 23rd January, 1948, which has been described as an interlocutory judgment, disposed of the first two points mentioned above and affirmed the decision of the trial court thereon.
It was held that the decision in Rukmini 's Title Suit No. 350 of 1930, to which the defendants were made parties, precluded them from challenging the fact of there being a partition between Mathurbhai and Kashibhai in 1913 and also from contending that Sivabhai was a validly adopted son.
There remained the only other question, namely, as to whether the plaintiffs could, on the basis of the deed of surrender, lay a claim for possession of the properties during the lifetime of the widow, as against persons, who had acquired title by adverse possession against her.
In regard to this point, a contention was raised on behalf of the appellants that the deed of surrender was not duly proved and as there was no definite finding on this point, the learned Judges sent the case back for findings on the two following issues which they themselves framed: (i)Whether the plaintiffs proved the deed of surrender dated 30th January, 1941 ? and (ii)Whether Bai Kashi surrendered the whole of her husband 's interest in the whole property of her husband? The trial court recorded its findings on both these issues after taking additional evidence and its findings were in favour of the plaintiffs.
After the findings were returned to the High Court, the appeal was heard by a Full Bench con sisting of Chagla C.J. and Weston and Dixit JJ.
The Full Bench confirmed the decree of the trial court and dismissed the appeal.
It was held by the learned Judges that even though the defendants acquired by adverse possession a title against the Hindu widow, the deed of surrender executed by her did not become infructuous or inoperative thereby; and as there was acceleration of inheritance in favour of the plaintiffs who were the next heirs of Shankarbhai, they were competent to recover possession of the properties at once by 34 5 evicting the defendants and were not bound to wait till the widow actually died.
It is the propriety of this decision that has been challenged bedore us by the defendants 1 and 2 in this appeal.
The arguments advanced by Mr. Krishnaswami Ayyangar, who appeared in support of the appealcan be conveniently considered under two heads.
The first branch of his contention is, that as the widow 's estate was in this case completely extinguished by adverse possession exercised by the defendants, she had, in fact, no interest left in her, which she could make a surrender of in favour of the reversions.
What is said is, that the widow, by suffering the trespassers to remain in possession of her husband 's estate for more than the statutory period, had placed it ab solutely beyond her power to deal with it any further; and her title being already extinguished by adverse possession, no further extinction by any act of surrender on her part was possible.
The other branch of the learned counsel 's contention is, that assuming, that the widow could make a surrender, such surrender could not prejudice the rights of persons, acquired by grant from the widow or by prescription against her prior to the date of surrender and these rights would, in law, endure during the entire period of the widow 's natural life.
Whatever rights the reversions could assert, they could assert only after the widow 's death and not during her lifetime.
A number of decided authorities have been canvassed before us in this connection by the learned counsel and it cannot be disputed that judicial opinion on these points is not at all uniform.
It seems to us that for a proper determination of the questions, it is necessary first of all to formulate as clearly as possible the precise nature and effect of what is known as "surrender" by a Hindu widow.
The word "surrender" cannot be said to be free from ambiguity.
It connotes nothing more than the English doctrine of merger and a Hindu widow, whose interest is usually, though incorrectly, likened to that of a life tenant under the English law, merely accele 346 rates the reversion by surrendering her limited interest in favour of the reversioner, undoubtedly no surrender can be effective if the widow has already parted with her interest in the property by a voluntary act of her own or her rights therein have been extinguished by adverse possession of a stranger.
The English doctrine of merger, though it may have influenced some of the judicial pronouncements in our country has really speaking no application to a Hindu widow 's estate.
The law of surrender by a Hindu widow as it stands at present, is for the most part, judge made law, though it may not be quite correct to say that there is absolutely no textual authority upon which the doctrine could be founded, at least, impliedly.
So far as the Dayabhag law is concerned, its origin is attributed to Jimutabahan 's commentary on the well known text of Katyayana which describes the interest of a childless widow in the estate left by her husband and the rights of the reversioners after her death(1).
While commenting on Katyayana 's text, Jimutabahan lays down that the persons who should be the next heirs on failure of prior claimants would get the residue of the estate after her use on the demise of the widow in whom the succession had vested, as they would have succeeded if the widow 's rights were non existent or destroyed (in otherways) [jatadhikaraya ; patnya: adhikikara pradlvamsspi bhogavasishtam dhanam grrhiyu : ] (2).
It was observed by Ashutosh Mookerjee J. in Debi Prosad vs Golap Bhagat(3) that the theory of relinquishment or surrender was foreshadowed in these remarks of Jimutabahan.
This much is clear from the passage referred to above that the commenta tor had in mind other modes of extinction of the widow 's interest in her husband 's properties besides the natural death of the widow, which would have the effect of letting in her husband 's heirs.
There is indeed no mention of surrender or renunciation in the text and it was not on the basis of any textual authority that the law of surrender developed in (1) Vide Dayabhag Chap.
II, section 1, paragraph 56.
(2) Dayabhag Chap.
II, section I, paragraph 59.
(3) at 771.
347 India.
But it Must be noticed that though certain terms and expressions of English law have been made use of in a some what loose sense, yet the radical idea involved in the doctrine of surrender by a Hindu widow is totally different from what is implied in the merger of a life interest in the reversionary estate under the English law.
In English law the reversioner or remainderman has a vested interest in the property and his rights are simply augmented by the surrender of the life estate.
In the Hindu law, on the other hand, the widow, so long as she is alive, fully represents her husband 's estate,.
though her powers of alienation are curtailed and the property after her death goes not to her but to her husband 's heirs.
The presumptive reversioner has got no interest in the property during the lifetime of the widow.
He has a mere chance of succession which may not materialise at all.
He can succeed to the property at any particular time only if the widow dies at that very moment.
The whole doctrine of surrender is based upon this analogy or legal fiction of the widow 's death.
The widow 's estate is an interposed limitation or obstruction which prevents or impedes the course of suc cession in favour of the heirs of her husband.
It is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband 's estate al together.
If she does that, the consequence is the same as she died a natural death and the next heirs of her husband then living step in at once under the ordinary law of inheritance.
In spite of some amount of complexity which is unavoidable in a law evolved by judicial decisions, this fund.
mental basis of the doctrine of surrender can be said to be established beyond doubt.
Thus Lord Dunedin in Gounder, v Gounden(1) enunciated the law in clear terms as follows: "It is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the neares, reversioner if there be only one or of all the reversioners (1) 46 I.A. 72 at 79.
348 nearest in degree if more than one at the moment.
That is to say, she can, so to speak, by voluntary act operate her own death.
" Again in repudiating the suggestion that there could be any such thing as a partial surrender, His Lordship observed: "As already pointed out, it is the effacement of the widow an effacement which in other circumstances is effected by actual death or by civil death which opens the estate of the deceased husband to his next heirs at that date.
Now, there cannot be a widow who is partly effaced and partly not so.
" Thus surrender is not really an act of alienation of the widow of her rights in favour of the reversioner.
The rever sioner does not occupy the position of a grantee or transferee, and does not derive his title from her.
He derives his title from the last male holder as his successor in law and the rights of succession are opened out by the act of self effacement on the part of the widow which operates in the same manner as her physical death.
It is true that a surrender may and in the majority of cases does take the form of transfer, e.g., when the widow conveys the entire estate of her husband.
without consideration and not as a mere device to share the estate with the reversioner, in favour of the latter.
But "it is the self effacement by the widow that forms the basis of surrender and not the ex facie transfer by which such effacement is brought about"(2).
The true nature and effect of a surrender by a Hindu widow of her husband 's estate have been thus summoned up, and in our opinion quite correctly, by a Division Bench of the Madras High Court(3): "It is settled that the true view of surrender under the Hindu law is that it is a voluntary act of self effacement by the widow having the same consequences as her death, in opening up the succession to the next heirs of the last male owner.
The intermediate stage is merely extingushed and (1) I.L.R. 39 Mad. 1035.
(2) See Vytla Sitanna vs Mariwada 61 I.A. 200, 207 ; Mumareddi vs Pitti Darairaja , 661.
(3) Vide Damaraju vs T.Narayana I.L.R.1941 Mad.551,557.
349 not transferred and the law then steps in to accelerate succession so as to let in the next reversioner.
The surrender conveys nothing in law; it is purely a self effacement which must of necessity be complete; for, as the Privy Council has said, there cannot be a widow partly effaced and partly not just as there cannot be a widow partly dead and partly alive.
The fiction of a civil death is thus assumed when a surrender takes place; and when the reversioners come in they come in their own right as heirs of the last owner and not as transferees from the widow.
" As surrender conveys nothing in law and merely causes extinction of the widow 's rights in her husband 's estate, there is no reason why it should be necessary that the estate must remain with the widow before she could exercise her power of surrender.
The widow might have alienated the property to a stranger or some one might have been in adverse possession of the same for more than the statutory period.
If the alienation is for legal necessity, it would certainly be binding upon the estate and it could not be impeached by any person under any circumstance.
But if the alienation is not for legal necessity, or if a squatter has acquired title by adverse possession against the widow, neither the alienation nor the rights of the adverse possessor could affect the reversioners ' estate at all.
These rights have their origin in acts or omissions of the widow which are not binding on the husband 's estate They are in reality dependent upon the widow 's estate and if the widow 's estate is extinguished by any means known to law, e.g., by her adopting a son or marrying again, these rights must also cease to exist.
The same consequences should follow when the widow withdraws herself from her husband 's estate by an act of renunciation on her part.
Whether any equitable principle can be invoked in favour of a third party who has acquired rights over the property by any act or omission of the widow may be a matter for consideration.
But the learned counsel for the appellants is not right when he says that as adverse possession extinguished the rights of the widow, no fresh extinction by an act of surrender was possible.
As the rights acquired by adverse possession are 350 available only against the widow and not against the hus band 's heirs, the husband 's estate still remains undestroyed and the widow may withdraw herself from that estate leaving it open to the reversioners to take possession of it at once as heirs of the last male holder unless there is any other rule of law or equity which prevent them from doing so.
The first branch of the appellants ' contention cannot, therefore, succeed.
This leads us to the other branch of the appellants ' contention and the question arises whether in case of sur render by a Hindu widow, a person, who has, prior to the date of surrender, acquired, by adverse possession, an inte rest in the widow 's estate, can be ousted from possession of the property so long as the widow remains alive? This question, Mr. Ayyangar argues, should be answered in the negative.
His contention, in substance, is, that by reason of adverse possession for more than 12 years the title of the limited owner became extinguished under article 28 of the Limitation Act and the possessor acquired good title against the widow.
This title, it is said, cannot be displaced by the surrenderee who gets the property by reason of a, subsequent voluntary act on the part of the widow.
In support of this contention the learned counsel has placed reliance upon a number of cases, principally of the Madras High Court, where it has been held that a reversions in whose favour a surrender has been made by the widow cannot challenge the right of a prior alienee from the widow, even though the alienation was not for legal necessity, so long as the widow remains alive; and the same protection could be claimed by one who acquired the limited interest of a widow by adverse possession against her.
It is undisputed that there is considerable divergence of judicial opinion on this point and in these circumstances it is necessary to examine briefly the different lines of reasoning adopted by the different High Courts in dealing with the subject.
In Subbamma vs Subramanyam(4), which can be taken to be the leading pronouncement of the Madras High Court (1) I.L.R. 39 Mad.
351 on the point, it was held that a surrender by a Hindu widow could not affect prior alienations made by her, and even though such alienations might not be binding on the reversions as not being made for a proper or necessary purpose, they are binding on the widow for her life time or at any rate during the period of her widowhood.
In deciding this case the learned Judges relied mainly upon an earlier decision of the same court in Sreeramulu vs Kristamma(1), where the view taken was that an alienation, not for legal necessity, made by a Hindu widow, prior to adopting a son, could not be challenged by the adopted son so long as the widow remained alive.
In other words, the effect of a surrender by a Hindu widow was treated to be the same as that of an act of adoption by her.
Two years later, a Full Bench(2) of the Madras High Court overruled the decision in Sreeramulu vs Kristamma(1) and held that where a Hindu widow alienated property for a purpose not binding on the inheritance and thereafter adopt ed a son, the right of the adopted son was not prejudiced by the unauthorised transfer and he could sue for possession at once.
Although the Full Bench overruled the decision in Sreeramu vs Kristamma(1) which was relied on as an authority in Subbamnia 's case(3), yet the law enunciated in the latter case as regards the effect of surrender on previous alienations made by the widow was not dissented from, and Kumaraswami Sastriyar J., who was one of the Judges com posing the Full Bench.
in the course of his judgment, expressed the view that the adoption of a son by a Hindu widow to her husband was quite different from surrender in favour of the reversions, and to a relinquishment by the widow, based on no consideration of duty to her husband or his spiritual benefit, courts could very properly refuse to annex rights to defeat prior alienations made by her.
(1) (2) Vide Vaidyanatha Sastri vs Savithri I.L.R. (3) I.L.R. 39 Mad.
352 This view was approved in Sundarasiva vs Viyyamma(1) and has been accepted since then as good law in all the subsequent cases(2) of the Madras High Court.
The Madras High Court has also expressly held that the position of a person, who has acquired by adverse possession the limited interest of a Hindu widow is exactly the same as that of an alienee from her and if the title of such person has been completed already, it could not be defeated by a surrender made by the widow(1).
These decisions undoubtedly support the appellants ' case.
In the Calcutta High Court the question was raised in Prafulla Kamini vs Bhabani(4) as to whether a gift made by widow prior to surrendering her husband 's estate could be challenged by the reversioner during the period of the widow 's life.
The two Judges, constituting the Bench, differed in their opinion; and whereas Walmsley J. held that the gift was valid for the period of the widow 's life, Page J., on the other hand, after an elaborate discussion of the law relating to the legal affect of a widow 's surrender, came to the conclusion that the reversioner became immediately entitled to recover possession from the donee.
In view of the difference of opinion between the two Judges, there was an appeal filed under clause 15 of the Letters Patent, but the point in controversy was not decided by the Letters Patent Bench.
The matter again came up before another Bench of the Calcutta High Court consisting of D. N. Mitter and Rao JJ.(5).
Both the Judges concurred in holding that the view expressed by Page J. in the earlier case was right and that on a surrender by the Hindu widow of her husband 's estate and the consequent extinguish (1) I.L.R. (2) Vide the oases collected in Arunachala vs Arumugha I.L.R. (3) Vide Kamiraju vs Singaraju A.I.R. 1935 Mad. 664; Korabala vs Ratala A.I.R. 1951 Mad. 753.
(4) (5) Vide Ram Krishna vs Kausalya 353 ment of her interest therein all prior alienations in excess of her power were liable to be challenged by the reversioner immediately on the surrender taking effect just as they could be impeached if the widow died a natural death.
In the judgment under appeal the Bombay High Court has substan tially accepted the view taken by the Calcutta Judges in the case referred to above.
In the Allahabad High Court a Division Bench, consisting of Boys and Sulaiman JJ.
took a view similar to that of the Madras High Court, in Lachmi vs Lachho(1).
Boys J. in course of his judgment observed: "The doctrine of surrender having been imported into the Hindu law by judicial decision, we are entitled to import the complementary rule essential to the prevention of fraud that the widow cannot by making a surrender defeat rights created by herself and creation of which was within her authority." Sulaiman J., on the other hand, was very critical of this view and he expressed his own opinion(2) as follows: "I find great difficulty in discovering any true basis for holding that though the reversioner in whose favour the surrender has taken place has succeeded to the estate of the last male owner and derives title from him, he is nevertheless 1stopped from challenging any alienations made by the Hindu widow during her lifetime as if he were a grantee from her." In spite of these observations, however, the learned Judge agreed with Boys J. in the conclusion arrived at by the latter, principally on the ground that it would not work any hardship if the reversioner, in whose favour the surrender is made, were to take the property subject to the transfers made by the widow so as to allow the transfers to remain valid for her lifetime.
There has however been a definite change in the (1) I.L.R. 49 All. 334.
(2) I.L.R. 49 All 334 346.
354 view taken by the Allahabad High Court since then, and in a very recent pronouncement(1) of that court the learned Judges have expressly approved of the decision of the Calcutta High Court which is in entire agreement with the opinion actually expressed by Sulaiman J. as stated above.
So far as the Patna High Court is concerned, the case of Basudeo vs Baidyanath(2) was decided sometime before the case of Ram Krishna vs Kausalya(3) was heard by the Calcutta High Court and the learned Judges, without examining the principles of law independently, followed the Madras autho rities which had at that time been accepted by the Allahabad High Court.
An analysis of the Madras decisions, referred to above, upon which the learned counsel for the appellant places his reliance, will show that the grounds upon which they purport to be based are of a threefold character.
The first is that an alienation of property by a Hindu widow, in excess of her powers, though not binding on the inheritance, creates in the alience an interest commensurate with the period of her natural life.
A part of the interest, it is said, is severed from the husband 's estate when there is an alienation by the widow, and the reversioner when he takes the estate on surrender, takes it subject to the interest already created.
A person, who has acquired the widow 's interest by adverse possession against her, occupies, according to the Madras decisions, as stated above, the same position as an alienee from the widow.
The second ground is, that as the widow herself is in capable of disputing the title of the alienee or of the person who has acquired interest by adverse possession against her, a like disability attaches to the reversioner also who could not have obtained the properties but for the surrender made by the widow.
The third ground assigned is that the law of (1) Vide Raghuraj Singh vs Raba Singh A.I.R. 1952 All. 875.
(2) A.I.R. 1935 Pat.
(3) 355 surrender being a judge made law, the courts in recognising the right of surrender by a Hindu widow can and ought to impose conditions on the exercise of her power based on considerations of justice, equity and good conscience, and surrender being a purely voluntary act on the part of the widow, she could not be allowed by her own act to prejudice the interests which she had already created.
The first line of reasoning mentioned above is based upon the dictum of Bhashyam Ayyangar J. in Sreeramulu vs Kristamma(1), which though accepted in ubbamma 's case(1), was expressly dissented from in the subsequent Full Bench decision in Vaidyanatha vs Savithri(3).
This view, in our opinion, proceeds upon a misconception regarding the true nature of a, Hindu widow 's estate and the rights and duties which vest in her under the Hindu law.
Though loosely des cribed as a "life estate", the Hindu widow 's interest in her husband 's property bears no analogy to that of a "life tenant" under the English law.
As was pointed out by the Judicial Committee(1) as early as 1861, the estate which the Hindu widow takes is a qualified proprietorship with powers of alienation for purely worldly or secular purposes only when there is a justifying necessity and the restrictions on the powers of alienation are inseparable from her estate.
The restrictions, as the Judicial Committee pointed out, which are imposed on the Hindu widow 's powers of alienation, are not merely for the protection of the material interest of her husband 's relations, but by reason of the opinion expressed by all the Smriti writers that the Hindu widow should live a life of moderation and cannot have any power of gift, sale or mortgage except for religious or spiritual purposes.
The Hindu law certainly does not countenance the idea of a widow alienating her property without any necessity, merely as a (1) (2) I.L.R. 39 Mad. 1035.
(3) I.L.R. 41 Mgad.
(4) Vide Collector of Masulipatam vs Cavaly Venkata 8 M.I.A. 529.
356 mode of enjoyment, as was suggested before us by Mr. Ayyangar.
If such a transfer is made by a Hindu widow, it is not correct to say that the transferee acquires necessarily and in law an interest commensurate with the period of the natural life of the widow or at any rate with the period of her widowhood.
Such transfer is invalid in Hindu law, but the widow, being the grantor herself, cannot derogate from the grant and the transfer cannot also be impeached so long as a person does not come into existence who can claim a present right to possession of the property.
As in the majority of cases, persons with such rights come into existence only when the widow dies it is generally said that the alienee gets the estate for the term of the widow 's life.
We think that the legal position has been correctly indicated by Kumaraswami Shastriyar J. in the Full Bench case(1) referred to above.
On the one hand, a Hindu widow has larger rights than those of a life estate holder, inasmuch as, in case of justifying necessity she can convey to another an absolute title to the properties vested in her.
On the other hand, where there is no necessity for alienation, the interest, which she herself holds and which she can convey to others, is not an indefeasible life estate, but an estate liable to be defeated on the happening of certain events which in Hindu law cause extinction of the widow 's estate.
Remarriage by the widow is one such event which completely divests her of any interest in her husband 's property.
Adoption of a son to her husband is another circumstance which puts an end to her estate as heir to her husband, the effect of adoption being to bring in a son who has prior claims to succession under the Hindu law.
In both these sets of circumstances it is not disputed that prior rights derived from the widow, if not supported by legal necessity, could be defeated by the next heir of the husband or the adopted son as the case may be.
If the effect of surrender, as explained above, is to destroy the widow 's estate in the same way as if she suffered physical or civil death, there is no conceivable reason why the reversioner should not, subject to any question of fraud or collusion that might arise, be in a position to recover possession of the properties from (1) Vide, Vaidyanatha vs Savithri, I.L.R. 357 an alienee from the widow or from one who has obtained title by adverse possession against her, as none of them could acquire rights except against the widow herself.
Kumaraswami Shastriyar J. is of opinion(1) that a, surrender stands on a different footing from adoption by a widow.
According to the learned Judge, the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract.
The widow is not bound to surrender the estate, nor is the reversioner bound to accept it, except on terms which would apply to any other transfer of immovable property so far as prior alienees are concerned.
This, in our opinion, involves a total misapprehension of the nature and legal effect of surrender by a Hindu widow as we have already explained.
Surrender is not alienation of an interest of the widow in favour of the reversioner, and no acceptance by the reversioner is necessary as a condition precedent to the vesting of the estate in him.
The estate vests in the reversioner under operation of law without any act on his part.
It is also difficult to see why the learned Judge looked upon surrender as a matter of contract between the widow and the reversioner.
It is true that the widow at the time of surrendering her husband 's estate can, if she likes, stipulate for a right to be maintained out of the properties for her lifetime; but reservation of such small benefit absolutely necessary for her maintenance does not invalidate a surrender as has been held by the Privy Council in more cases than one(1).
Mr. Ayyangar argues that a widow, who requires to be maintained out of her husband 's property, cannot be said to have suffered death.
But this argument is fallacious.
Nobody says that the surrendering widow actually dies.
It is a fiction of law pure and simple and it is for the law to determine under what circumstances this fiction of natural or civil death would arise.
There is such a legal fiction involved in adoption also when a son is adopted by a widow subsequent to the death of her husband.
Such adopted son is given the rights of a posthumous son and the fiction is that he was in existence from before (1) Vide Vaidyanatha vs Savithri, I.L.R. at 99.
(2) Vide Sureswar Misra vs Mahesarani, 47 T. A. 233.
358 the date of the proprietor 's death, although the fact is otherwise.
So far as the legal consequences are concerned, there is no material difference between an adoption and an act of surrender by the widow.
In our opinion, there is no warrant in Hindu law for the proposition that in case of alienation by a Hindu widow of her husband 's property without any justifying necessity, or in the case of a stranger acquiring title by adverse possession against her the interest created is to be deemed to be severed from the inheritance and if a surrender is made subsequently by the widow, the surrenders must take it subject to such prior interest.
Sulaiman J. in the Allahabad case(1) cited above enunciated the law with perfect precision when he said that the effect of an alienation by a widow is not to spilt up the husband 's estate into two parts or to give to the alienee an interest necessarily co extensive with her lifetime.
The reversionary right to challenge it is no part of the widow 's estate at all and, therefore, could not be surrendered to the reversioner.
The first line of reasoning, therefore, seems to us to be of no substance.
The second ground upon which the Madras decisions purport to be based is manifestly untenable.
The widow her self may be incapable of derogating from her own grant and disputing the alienation which she has herself made; but as has been said already, surrender is not an alienation and as the reversioner does not derive his title from her, there is no principle of law under which the acts of the widow could bind him.
As Sulaiman J. pointed out in the case just referred to, that if the reversion were a grantee from the widow, he would not only have been stopped from challenging the alienation during her lifetime, but would have been equally estopped from challenging it after her death; admittedly that is not the case(1).
It is true that the surrender benefits the reversioner but the benefit comes to him under the provision of general law as a result of self effacement by the widow.
No estoppel can possibly be founded on the receipt of such bene (1) Vide Lachini Chand vs Lachho, I.L.R. 49 All.
(2) Vide I.L.R. 49 All.
334 at 346.
355 Coming now to the third ground, it is certainly true that a surrender is a voluntary act on the part of the widow and she is under no legal or moral obligation to surrender her estate.
Instances do arise where an alienee has paid valuable and substantial consideration for a property on the expectation of enjoying it so long as the widow would remain alive and his expectations have been cut short by a surrender on the part of the widow, which no doubt benefits the reversioner in the sense that he gets the inheritance even during the widow 's lifetime.
On the other hand, a person, who takes transfer from a Hindu widow, acts with his eyes open.
If the transfer is without any legal necessity, there is a risk always attached to the transaction, and there is no law, as we have already ,explained, which secures to him necessarily an estate for life.
A man making a purchase of this character is not expected to pay the same value which he would pay if the purchase were made from a full owner.
Be that as it may, even assuming that the court is not incompetent to impose conditions on the reversions ' right of recovering possession of the property during the widow 's lifetime on grounds of equity, justice and good conscience in proper cases, it is clear that in the case before us no equitable considerations at all arise.
The appellants are not alienees from the widow ; they came upon the land as trespassers with,out any right and it is the law of limitation that has legalised what was originally a clear act of usurpation.
They have enjoyed their property since 1925, and as the title which they have acquired is not available against the reversionary interest, we do not see any reason sanctioned by law or equity for not allowing the reversions their full legal rights.
The result is that in our opinion the decision of the High Court is right and this appeal must stand dismissed with costs.
Appeal dismissed.
Agent for respondents Nos.
I & 2 : A. C. Dave.

summary/full:
Where a Hindu widow surrenders her widow 's estate to the reversioners, after a third person has acquired title to the properties by adverse possession against her, the reversioners are entitled to recover possession of the properties from that person immediately as heir 's of the last male holder.
The person in adverse possession is not entitled to remain in possession till the death of the widow.
So far as the legal consequences are concerned there is no material difference in this respect between an adoption and an act of surrender by the widow.
As a surrender by a Hindu widow does not convey any title to the reversioners, but is only a voluntary act of self effacement by the widow, she can make a valid surrender under Hindu law even after another person has acquired title by adverse possession against her.
The reversioners do not take the property subject to the rights created by the widow.
Surrender by the widow and acceptance by the reversioner are not matters of contract.
The estate vests in the reversioner by operation of law without any act of acceptance on the part of the reversioner.
L/B(D)2SCI 8(a) 340 The view that, as the widow herself is incapable of disput ing the title of alienee, or of the person who has obtained title by adverse possession, a like disability attaches to the reversioner, is also unsound as the reversioner does not derive title from the widow even in the case of a surrender.
Assuming that the court has power to impose conditions on the reversioners ' right to recover possession during the lifetime of the widow on considerations of equity, justice and good conscience and to prevent the widow, by her own act, from prejudicing the interests she has created, no such equitable considerations arise in favour of persons who have come upon the land, as trespassers and claim title by adverse possession.
Subbamma vs Subrahmanyam (I.L.R. 39 Mad.
1035), Sundrasiva vs Viyyamma (I.L.R. , Arunachala vs Arumuga (I.L.R. , Lachmi vs Lachho (I.L.R. 49 All. 334) and Basudeo vs Baidyanath (A.I.R. 1935 Pat.
175) disapproved.
Ram Krishna vs Kausalya , Raghuraj Singh vs Babu Singh (A.I.R. 1952 All. 875) approved.
Vaidyanatha vs Savitri (I.L.R. commented upon.