Shashikant Singh v. Tarkeshwar Singh and Anr-24/04/2002

When a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either an absolute enactment or a directory enactment. The difference being that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.


Shashikant Singh


Tarkeshwar Singh and another

(Before : U. C. Banerjee And Y. K. Sabharwal, JJ.)

Criminal Appeal No. 547 of 2002 (arising out of S.L.P. (Cri.) No. 6923 of 2001), Decided on : 24-04-2002.

Criminal Procedure Code, 1973—Section 319—Additional accused—Procedure for trial—Trial of such an accused is permissible even after conclusion of trial against original accused—Words ‘could be tried together with the accused’ in Section 319(1)—Are only directory.

Interpretation of Statutes—Enabling provisions—May be partly mandatory and partly directory.

Counsel for the Parties:

P. S. Mishra, Sr. Advocate, S. Chandra Shekhar, Vishnu Sharma, Upendra Mishra, Tathagat Harsh Vardhan, Advocates with him, for Appellant

S. B. Sanyal, Sr. Advocate, Neeraj Shekhar, Ambhoj Kumar Sinha, Kumar Sinha, Kumar Rajesh Singh, Advocate for B. B. Singh, Advocate/Advocates with him, for Respondents.


Y. K. Sabharwal, J—Leave granted.

2. Can a person summoned pursuant to an order passed by a court in exercise of power conferred by Section 319 of the Code of Criminal Procedure, 1973 (the Code) be tried for the offence for which he is summoned after the conclusion of the trial wherein such an order of summoning was passed, is the question that falls for determination in this appeal. Such a question regarding the interpretation of Section 319 of the Code has arisen for the first time. The answer would depend upon the interpretation of the words ‘could be tried together with the accused’ in Section 319 of the Code. The question has come up for consideration under the following circumstances:

3. On the statement of Shashikant Singh, a case under Section 302/34, IPC and under Section 27 of the Arms Act for murder for his brother Shivakant Singh was registered against five persons including respondent No.1 and also one Chandra Shekhar Singh. On completion of investigation, police submitted charge-sheet against Chandra Shekhar Singh showing the other accused as absconders and as far as respondent No.1 is concerned investigation was shown to be pending. Against Chandra Shekhar Singh, the Court of Session framed charge under Section 302, IPC and Section 27 of the Arms Act.

4. By order dated 7th April, 2001, learned Additional Sessions, Judge held that from the evidence of prosecution witnesses it appears that respondent No.1 and two others have committed the offence of the murder of Shivakant Singh. The warrants of arrest against these persons were directed to be issued so that they may be tried together with the accused – Chandra Shekhar Singh. This order was challenged by respondent No.1 in a criminal revision petition (Criminal Revision No. 269/2001) filed in the High Court of Judicature at Patna.

5. During the pendency of the aforesaid revision petition, the learned Sessions Judge concluded the trial against Chandra Shekhar Singh and believing the ocular testimony, by judgment dated 16th July, 2001, Chandra Shekhar Singh was convicted for the offence under Section 302, IPC and Section 27 of the Arms Act. In the revision petition, it was contended on behalf of the respondent No.1 that since the trial is respect of Chandra Shekhar Singh has already been concluded and no session trial is pending before the trial court, Section 319 would not be applicable as the said provision is applicable only when the trial against another accused is pending and in the absence of pendency of such a trial, the court is not competent to proceed against respondent No.1. The High Court by the impugned judgment accepted the aforesaid contention and held that the order dated 7th April, 2001 is without jurisdiction. The order dated 7th April, 2001 was quashed without issue of notice to the petitioner but on hearing the counsel for the State of Bihar. The other contentions urged during the hearing of the revision petition that (i) the investigation against respondent No.1 was kept pending and on that score, the Court had no power to summon the said respondent under Section 319 of the Code; (ii) the order dated 7th April, 2001 is illegal as no reasons have been assigned for proceedings against respondent No.1. and; (iii) the order was too cryptic were not gone into by the High Court.

6. The trial against Chandra Shekhar Singh was pending on 7th April, 2001 when the order under Section 319(1) of the Code was passed by the Court of Session. Thus, the order when passed cannot be said to be without jurisdiction on the stated ground since at that stage, the trial against Chandra Shekhar Singh was pending and respondent No.1 summoned under Section 319 could be tried together with him. However, the trial against Chandra Shekhar Singh concluded before respondent No.1 could be brought before the Sessions Court. Therefore, the question is, can respondent No.1, after being summoned under Section 319 of the Code, be tried in the absence of trial pending against Chandra Shekhar Singh. In other words, the aspect to be determined is as to whether the order dated 7th April, 2001 would become ineffective and inoperative as a result of the conclusion of trial against Chandra Shekhar Singh before respondent No.1 could be proceeded with for the offence for which warrants were issued against him by the Sessions Court pursuant to an order passed under Section 319 of the Code. That section reads as under:

“319. Power to proceed against other persons appearing to be guilty of offence – (1) Where, in the course, of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then –

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

7. Clearly, the proceedings against the person summoned under sub-section (1) are required to be commenced afresh and the witnesses reheard. The entire proceedings have to recommence from the beginning of the trial. All the witnesses have to be examined afresh. Opportunity has to be granted to such a person to cross-examine those witnesses. There has to be a de novo trial.

8. The effect of the conclusion of the trial against the accused who was being proceeded with when the order was passed under Section 319(1) for proceedings against the newly added person, is to be examined in the light of sub-section (4) of Section 319 which stipulates a de novo trial in respect of the newly added persons and certain well settled principles of interpretation.

9. When a statute is passed for the purpose of enabling something to be done, and prescribes the way in which it is to be done, it may be either an absolute enactment or a directory enactment. The difference being that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. (Craies On Statute Law, 7th Edn. Pages 260-262)

10. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words ‘could be tried together with the accused’ in Section 319(1), appear to be only directory. ‘Could be’ cannot under these circumstances be held to be ‘must be’. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court.

11. Where a statute does not consist merely of one enactment, but contains a number of different provisions regulating the manner in which something is to be done, it often happens that some of these provisions are to be treated as being directory only, while others are to be considered absolute and essential; that is to say, some of the provisions may be disregarded without rendering invalid the thing to be done, but others not. (Craies On Statute Law, 7th Edn. Pages 266-267).

12. The mandate of the law of fresh trial is mandatory whereas the mandate that newly added accused could be tried together the accused directory. 13. On facts, the court could not have intended while concluding the trial against Chandra, Shekhar Singh, to nullify its earlier order directing issue of warrants against respondent No. 1. The construction to be placed on a provision like this has to commend to justice and reason. It has to be reasonable construction to promote the ends of justice. The words ‘could be’ tried together with the accused’ in Section 319(1) cannot be said to be capable of only one construction. If it was so, approach to be adopted would be different since the intention of the Parliament is to be respected despite the consequences of interpretation. There is, however, a scope for two possible construction. That being the position, a reasonable and common sense approach deserves to be adopted and preferred rather than a construction that would lead to absurd results of respondent No. 1 escaping the trial despite passing of an order against him on Court’s satisfaction under Section 319(1) and despite the fact that the proceedings against him have to commence afresh. In this view, the fact that trial against Chandra Shekhar Singh had already concluded is of no consequence insofar as respondent No. 1 is concerned.

14. Reliance by learned counsel for the respondent No. 1 has been placed on Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Ors. (1983) 1 SCC 1 in support of the contention that respondent No. 1 could be tried only with Chandra Shekhar Singh and his trial having concluded, respondent No. 1 cannot be now tried pursuant to order under Section 319(1) of the Code. This court in the cited decision was not concerned with the issue which has fallen for consideration before us. The same is the position in respect of Michael Machado and Anr. vs. Central Bureau of Investigation and Anr. (2000) 3 SCC 262. There was Court considered the scope of the provision as to the circumstances under which the Court may proceed to make an order under Section 319 and not the question as to the effect of the conclusion of the trial after passing an order under Section 319(1). None of these decisions have any relevance for determining the point in issue.

15. A magistrate is empowered to take cognizance of an offence in the manner provided under Section 190 of the Code. Section 209 enjoins upon a magistrate to commit the case to the Court of Session when it appears to the magistrate that the offence is triable exclusively by the Court of Session. Section 193 provides for the power of the Court of Session to take cognizance of any offence. It uses the expression ‘cognizance of any offence’ and not that of ‘offender’. These three provisions read with section 319 make it clear that the words ‘could be tried together with the accused’ in Section 319 is only for the purpose finding out whether such a person could be put on trial for the offence. Once it is so found, as already stated, sub-section (4) of Section 319 comes into play. On the magistrate committing the case under Section 209 to the Court of Session, the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of Court of original jurisdiction to take cognizance of the offence which could include summoning of the person or persons whose complicity in the commission of crime can, prima facie, be gathered from the material on record (see Kishun Singh and Ors. vs. State of Bihar (1993) 2 SCC 16.

In view of the aforesaid legal position, the High Court was clearly in error in coming to the conclusion that the order dated 7th April, 2001 had become without jurisdiction as a result of the conclusion of trial against Chandra Shekhar Singh. The impugned order of the High Court is, therefore, set aside.

16. The High Court did not go into the other contentions as urged on behalf of respondent No. 1 and decided the Criminal Revision No 269/2001 only on the point aforenoted. In this view, we would remand the Criminal Revision No. 269/2001 to the High Court for fresh decision to consider the other contentions urged by Respondent No. 1.

17. The appeal is allowed in the above terms. The application for implement is, however, dismissed. The High Court would do well to expeditiously decide the matter preferably within a period of three months.

AIR 2002 SC 2031 : (2002) 3 SCR 400 : (2002) 5 SCC 738 : JT 2002 (4) SC 386 : (2002) 4 SCALE 89 : (2002) CriLJ SC 2806

Subject to other provisions of the Constitution- means

The words “subject to other provisions of the Constitution” mean that if there is an irreconcilable conflict between the pre-existing law and a provision or provisions of the Constitution, the latter shall prevail to the extent of that inconsistency.

An article of the Constitution by its express terms may come into conflict with a pre-Constitution law wholly or in part; the said article or articles may also by necessary implication, come into direct conflict with the pre-existing law.

It may also be that the combined operation of a series of articles may bring about a situation making the existence of the pre-existing law incongruous in that situation. Whatever it may be, the inconsistency must be spelled out from the other provisions of the Constitution and cannot be built upon the supposed political philosophy underlying the Constitution. These observations are necessitated by the reliance of Mr. Nambiar on two decisions of the Supreme Court of the United States of America. In Chicago, Rock Island and Pacific Railway Co. v. William McGlinn, (1884) 29 Law Ed 270 the facts, briefly were: The Act of Kansas purported to cede to the United States exclusive jurisdiction over the Fort Leavenworth Military Reservation. In considering the question whether the previous laws continued after the said cession, the Supreme court of the United States of America made a distinction between laws of political character and municipal laws intended for the protection of private rights, but we are not concerned with that question in this case; and indeed the law of India appears to be different from that of America in that regard. But what is relied upon is the effect of cession pre-existing laws which are in conflict with the political character, institution and Constitution of the new Government. Field J., speaking for the Court observed, at page No. 272, as follows:

“As a matter of course, all laws, ordinances and regulations in conflict with the political character, institution and Constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power – and the latter is involved in the former-to the United States, the laws of the country in support of an established religion or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters.”

16. The same view was reiterated by the Supreme Court of the United States of America in a later decision in Vilas v. City of Manila, (1910) 55 Law Ed 491. We are not concerned in this case with the general principles enunciated by the law of America, but only with the express provisions of Art. 372 of our Constitution. That apart, it may also be inappropriate to rely upon the legal consequences of a cession of a State under the American law for the interpretation of Art. 372 of our constitution, which deals with a different situation and lays down expressly the legal position to meet the same.[South India Corporation (P) Ltd Vs Secretary, Board of Revenue, Trivandrum and another AIR 1964 SC 207]


Notification interpretation of

Supreme Court in Commissioner of Central Excise, Surat-I v. Favourite Industries, 2012 (7) SCC 153, while considering exemption notification issued under Central Excise Tariff Act, 1985 laid down following in paragraph 35 to 40:-

“35. The notification requires to be interpreted in the light of the words employed by it and not on any other basis. There cannot be any addition or subtraction from the notification for the reason the exemption notification requires to be strictly construed by the courts. The wordings of the exemption notification have to be given its natural meaning, when the wordings are simple, clear and unambiguous.

36. In Commr. of Customs v. Rupa & Co. Ltd., this Court has observed that the exemption notification has to be given strict interpretation by giving effect to the clear and unambiguous wordings used in the notification. This Court has held thus: (SCC pp. 41314, para 7)

“7. … However, if the interpretation given by the Board and the Ministry is clearly erroneous then this Court cannot endorse that view. An exemption notification has to be construed strictly but that does not mean that the object and purpose of the notification is to be lost sight of and the wording used therein ignored. Where the wording of the notification is clear and unambiguous, it has to be given effect to. Exemption cannot be denied by giving a construction not justified by the wording of the notification.”

(emphasis supplied)

37. In CCE v. Rukmani Pakkwell Traders, this Court has also held: (SCC p. 804, para 5)

“5. … It is settled law that exemption notifications have to be strictly construed. They must be interpreted on their own wording. Wordings of some other notification are of no benefit in construing a particular notification.”

(emphasis supplied)

38. In Kohinoor Elastics (P) Ltd. v. CCE this Court has held: (SCC p. 533, para 7)

“7. … When the wordings of the notifications are clear and unambiguous they must be given effect to. By a strained reasoning benefit cannot be given when it is clearly not available.”

(emphasis supplied)

39. In Compack (P) Ltd. v. CCE, this Court has observed thus: (SCC p. 306, para 20)

“20. Bhalla Enterprises laid down a proposition that notification has to be construed on the basis of the language used. Rukmani Pakkwell Traders16 is an authority for the same proposition as also that the wordings of some other notification are of no benefit in construing a particular notification. The notification does not state that exemption cannot be granted in a case where all the inputs for manufacture of containers would be base paper or paperboard. In manufacture of the containers some other inputs are likely to be used for which MODVAT credit facility has been availed of. Such a construction, as has been suggested by the learned counsel for the respondents, would amount to addition of the words `only out of’ or `purely out of’ the base paper and cannot be countenanced. The notification has to be construed in terms of the language used therein. It is well settled that unless literal meaning given to a document leads to anomaly or absurdity, the golden rule of literal interpretation shall be adhered to.”

(emphasis supplied)

40. In CCE v. Mahaan Dairies, this Court has held: (SCC p. 800, para 8) “8. It is settled law that in order to claim benefit of a notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. The Tribunal has based its decision on a decision delivered by it in Rukmani Pakkwell Traders v. CCE. We have already overruled the decision in that case. In this case also we hold that the decision of the Tribunal is unsustainable. It is accordingly set aside.”

(emphasis supplied)”


Where words of a statute are absolutely clear and unambiguous, no interpretation other than literal rule shall apply

It is a settled principle of interpretation that the Court should neither add nor delete words from a statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be resorted to the principles of interpretation, other than the literal rule, vide: Swedish Match AB and Another Vs. Securities and Exchange Board, India and Another, . As held in Prakash Nath Khanna and Another Vs. Commissioner of Income Tax and Another, , the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what is has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Fin. Corpn. and Another Vs. Rajiv Anand and Others, . Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of A.P. and Another Vs. Road Rollers Owners Welfare Association and Others,

In Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others, the Supreme Court observed:-

“The Court cannot relegislate on the subject under the guise of interpretation against the legislative will expressed in the enactment itself.”

The rules of interpretation would come into play only if there is any doubt with regard to the express language used. Where the words are unequivocal, there is no scope for importing any rule of interpretation: vide Pandian Chemicals Ltd. Vs. Commissioner of Income Tax,

 It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction: vide: Nasiruddin and Others Vs. Sita Ram Agarwal, . Where the words of a statute are plain and unambiguous effect must be given to them: vide: Bhaiji Vs. Sub Divisional Officer, Thandla and Others, .

In Hiralal Rattanlal Vs. State of U.P. and Another etc. etc., the Supreme Court observed:

“In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear.”

The same view has been taken in Commissioner of Income Tax, Assam and Nagaland etc. Vs. Shri G. Hyatt, .

In Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, , the Supreme Court observed:-

“It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent.”

 Where the language is clear, the intention of the legislature has to be gathered from the language used: vid Grasim Industries Ltd. Vs. Collector of Customs, Bombay, and Union of India (UOI) and Another Vs. Hansoli Devi and Others,

 The function of the Court is only to expound the law and not to legislate vide District Mining Officer and Others Vs. Tata Iron and Steel Co. and Another, . If we accept the interpretation canvassed by the learned counsel for the respondent we will really be legislating because in the guise of interpretation we will be really amending Section 12(1) of the Act.

In Gurudevdatta VKSSS Maryadit and Others Vs. State of Maharashtra and Others, , the Supreme Court observed:

“It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute.”

The same view has been taken by the Supreme Court in Harshad S. Mehta and Others Vs. The State of Maharashtra, and Patangrao Kadam Vs. Prithviraj Sayajirao Yadav Deshmukh and Others.

The Apex Court in Raghunath Rai Bareja and Another Vs. Punjab National Bank and Others, held that:

It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB and Another Vs. Securities and Exchange Board, India and Another, . As held in Prakash Nath Khanna and Another Vs. Commissioner of Income Tax and Another, , the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Fin. Corpn. and Another Vs. Rajiv Anand and Others, . Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Government of A.P. and Another Vs. Road Rollers Owners Welfare Association and Others, and the Court should not seek to amend the law in the garb of interpretation.

The rules of interpretation other than the literal rule would come into play it there is any doubt with regard to the express language used or if the plain meaning would lead to an absurdity. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. Vs. Commissioner of Income Tax, .

It is only where the provisions of a statue are ambiguous that the court can depart from a literal or strict construction vide Nasiruddin and Others Vs. Sita Ram Agarwal, . Where the words of a statue are plain and unambiguous effect must be given to them vide Bhaiji Vs. Sub Divisional Officer, Thandla and Others, .

Judicial power

Griffith, C. J., in an Australian case, namely, Huddart Parker and Co. v. Moorehead which to some extent neutralised the effect of the negative tests enumerated in the judgment. The observations of Griffith, C.J., are as follows :-

“I am of opinion that the words ‘judicial power’…. mean to power which every sovereign authority must have to necessity to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

It may be stated that the authority to hear and decide on evidence between a proposal and an opposition though it is one of the most essential of judicial powers, may be present in an administrative tribunal also. In the majority of cases, administrative bodies are also armed with the powers of a Court of justice in summoning witnesses, administering oaths and punishing disobedience to its order made for the purpose of effecting its enquiries. Vide W. F. O’Conner v. Waldron. As a matter of fact, it is usual to find that those features which were at one time attached exclusively to activities carries on in a Court of law are being extended to committees, commissions or boards conducting enquiries under directions or supervision of the Government. The presence or absence of these features, therefore, does not furnish any conclusive test to determine whether a particular body is a judicial body or not. In the observations of Griffith, C.J., quoted above, the learned Chief Justice laid stress on the power to make a binding and authoritative decision as the essential element in the exercise of judicial power. The exact meaning and implication of these expressions were the subject-matter of discussion in later Australian cases and it was held by the majority of the Judges in Rola Co. (Australia) Pty. Limited v. The Commonwealth that they do not simply mean that if an authority is given power to decide controverted questions of fact and its determination is made binding on the parties to the controversy, if would be sufficient to show that judicial power was entrusted to such authority. A determination, it was pointed out, may be binding on the parties in the same sense as contract is binding on them. What is necessary is that the determination by its own force and without the aid or instrumentality of any other authority or power must affect the rights and obligations of the parties; or in other words, the decision itself irrespective of the facts decided, must create rights and impose obligations; and it should be enforceable as such under the ordinary law of the land. This undoubtedly is one of the fundamental tests which distinguishes a judicial body from one which exercises administrative or quasi judicial functions. Sometimes the decision or report of the administrative tribunal becomes operative after it is accepted by the head of the department under which the tribunal conducted its enquiries and it is then enforced by some sort of administrative process; or it might create rights between the parties which have to be sued upon in the ordinary way in a Court of Law and it is only on the basis of a judgment or decree that is obtained in such action that relief could be had by the party. The essence of judicial determination is that nothing further remains to be done except the enforcement of the judgment, a step which is compelled automatically by the law of the land.

In Cooper v. Wilson, Scott, L. J., quoted with approval and adopted as the basis of his judgment the following passage from the report of the above committee :

“A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites :- (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence of adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties to the dispute and often with the assistance of argument by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi judicial decision equally presupposes an existing dispute between two or more parties and involves and but does not necessarily involve and never involves. The place of is in fact taken by administrative action, the character of which is determined by the Minister’s free choice.”


Where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner

It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner, vide Chandra Kishore Jha vs. Mahavir Prasad, AIR 1999 SC 3558 (para 12), Dhananjaya Reddy vs. State of Karnataka, AIR 2001 SC 1512 (para 22), etc. Section 86(1)(f) provides a special manner of making references to an arbitrator in disputes between a licensee and a generating company. Hence by implication all other methods are barred.


Mimansa Principles of Interpretation

In  Gujarat Urja Vikash Nigam Ltd. Versus Essar Power Ltd [AIR 2008 SC 1921 : (2008) 4 SCR 822 : (2008) 4 SCC 755 : JT 2008 (3) SC 336 : (2008) 3 SCALE 469] 


Today many of our educated people are largely unaware about the great intellectual achievements of our ancestors and the intellectual treasury they have bequeathed us. The Mimansa Principles of Interpretation is part of that intellectual treasury but it is distressing to note that apart from a reference to these principles in the judgment of Sir John Edge, the then Chief Justice of Allahabad High Court in Beni Prasad vs. Hardai Devi, (1892) ILR 14 All 67 (FB), and some judgments by one of us (M. Katju, J.) there has been almost no utilization of these principles even in our own country.

38. It may be mentioned that the Mimansa Rules of Interpretation were our traditional principles of interpretation laid down by Jaimini, whose Sutras were explained by Shabar, Kumarila Bhatta, Prabhakar, etc. These Mimansa Principles were regularly used by our great jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda Pandit, etc. whenever they found any conflict between the various Smritis or any ambiguity, incongruity, or casus omissus therein. There is no reason why we cannot use these principles on appropriate occasions. However, it is a matter of deep regret that these principles have rarely been used in our law Courts. It is nowhere mentioned in our Constitution or any other law that only Maxwell’s Principles of Interpretation can be used by the Court. We can use any system of interpretation which helps us resolve a difficulty. In certain situations Maxwell’s principles would be more appropriate, while in other situations the Mimansa principles may be more suitable.

39. The Mimansa principles of interpretation were created for resolving the practical difficulties in performing the yagyas. The rules for performing the various yagyas were given in books called the Brahmanas (all in Sanskrit) e.g. Shatapath Brahmana, Aitareya Brahmana, Taitareya Brahmana, etc. There were many ambiguities, obscurities, conflicts etc. in the Brahmana texts, and hence the Mimansa Principles of Interpretation were created for resolving these difficulties.

40. Although the Mimansa principles were created for religious purpose, they were so rational and logical that they subsequently began to be used in law, grammar, logic, philosophy, etc. i.e. they became of universal application. The books on Mimansa are all in Sanskrit, but there is a good book in English by Prof. Kishori Lal Sarkar called ‘The Mimansa Rules of Interpretation’ published in the Tagore Law Lecture Series, which may be seen by anyone who wishes to go deeper into the subject.

41. In the Mimansa system there are three ways of dealing with conflicts which have been fully discussed by Shabar Swami in his commentary on Sutra 14, Chapter III, Book III of Jaimini.

(1) Where two texts which are apparently conflicting are capable of being reconciled, then by the Principle of Harmonious Construction (which is called the Samanjasya Principle in Mimansa) they should be reconciled. The Samanjasya Principle has been laid down by Jaimini in Chapter II, Sutra 9 which states :

“The inconsistencies asserted are not actually found. The conflicts consist in difference of application. The real intention is not affected by application. Therefore, there is consistency.”

42. The Samanjasya axiom is illustrated in the Dayabhag. Jimutvahana found that there were two apparently conflicting texts of Manu and Yajnavalkya. The first stated “a son born after a division shall alone take the paternal wealth”. The second text stated “sons, with whom the father has made a partition, should give a share to the son born after the distribution”. Jimutvahana, utilizing the Samanjasya principle of Mimansa, reconciled these two texts by holding that the former applies to the case of property which is the self-acquired property of the father, and the latter applies to the property descended from the grandfather.

43. One of the illustrations of the Samanjasya principle is the maxim of lost horses and burnt chariot (Nashtashvadaghda Ratha Nyaya). This is based on the story of two men travelling in their respective chariots and one of them losing his horses and the other having his chariot burnt through the outbreak of fire in the village in which they were putting up for the night. The horses that were left were harnessed to the remaining chariot and the two men pursued their journey together. Its teaching is union for mutual advantage, which has been quoted in the 16th Vartika to Panini, and is explained by Patanjali. It is referred to in Kumarila Bhatta’s Tantra Vartika.

(2) The second situation is a conflict where it is impossible to reconcile the two conflicting texts despite all efforts. In this situation the Vikalpa principle applies, which says that whichever law is more in consonance with reason and justice should be preferred. However, conflict should not be readily assumed and every effort should be made to reconcile conflicting texts. It is only when all efforts of reconciliation fail that the Vikalpa principle is to be resorted to.

(3) There is a third situation of a conflict and this is where there are two conflicting irreconciliable texts but one overrides the other because of its greater force. This is called a Badha in the Mimansa system (similar to the doctrine of ultra vires). The great Mimansa scholar Sree Bhatta Sankara in his book ‘Mimansa Valaprakasha’ has given several illustrations of Badha as follows :

“A Shruti of a doubtful character is barred by a Shruti which is free from doubt. A Linga which is more cogent bars that which is less cogent. Similarly a Shruti bars a Smriti. A Shruti bars Achara (custom) also. An absolute Smriti without reference to any popular reason bars one that is based upon a popular reason. An approved Achara bars an unapproved Achara. An unobjectionable Achara bars an objectionable Achara. A Smriti of the character of a Vidhi bars one of the character of an Arthavada. A Smriti of a doubtful character is barred by one free from doubts. That which serves a purpose immediately bars that which is of a remote service. That which is multifarious in meaning is barred by that which has a single meaning. The application of a general text is barred by a special text. A rule of procedure is barred by a mandatory rule. A manifest sense bars a sense by context. A primary sense bars a secondary sense. That which has a single indication is preferable to what has many indications. An indication of an inherent nature bars one which is not so. That which indicates an action is to be preferred to what merely indicates a capacity. If you can fill up an ellipse by an expression which occurs in a passage, you cannot go beyond it.” (Emphasis supplied)

44. The principle of Badha is discussed by Jaimini in the tenth chapter of his work. Badha primarily means barring a thing owing to inconsistency. Jaimini uses the principle of Badha mainly with reference to cases where Angas or sub-ceremonies are to be introduced from the Prakriti Yagya (i.e. a yagya whose rules for performance are given in detail in the Brahmanas) into a Vikriti (i.e. a yagya whose rules of performance are not mentioned anywhere, or are incompletely mentioned). In such a case, though the Angas or the sub-ceremonies are to be borrowed from the Prakriti Yagya, those of the sub-ceremonies which prove themselves to be inconsistent with or out of place in the Vikriti Yagya, are to be omitted.

45. For example, in the Rajsuya Yagya, certain homas are prescribed, for the proper performance of which one must borrow details from the Darshapaurnamasi Yagya. In the Rajsuya Yagya, plain ground is directed to be selected as the Vedi for the homas, while in the case of the Darshapaurnamasi, the Vedi should be erected by digging the ground with spade etc. Such an act would be out of place in constructing the Vedi for the homas in the Rajsuya Yagya. Here, there is a Badha (bar) of the particular rule regarding the erection of the Vedi in the Darshapaurnarnasi Yagya, being extended to the Rajsuya Yagya. This is the case of Badha by reason of express text.

46. There are other instances in which the inconsistency arises incidentally. For example, in the Sadyaska there is no need of cutting the peg with which the animal is to be tied. But, in the Agni-Somiya Yagya which is the Prakriti of the Sadyaska Yagya, reciting of certain Mantras is prescribed in connection with the cutting of the peg. This recital being out of place in the former Yagya is barred in carrying the Atidesha process. Numerous other illustrations can be given. For example, in the Satra Yagya the selection of Rittik is out of place and so omitted, though this is done in the Soma Yagya of which the Satra is the Vikriti. The Krishnala Nyaya (black bean maxim) is another instance. In cases where Atidesha is to be made by implication, it is altogether barred, if there is an express text against making the implication.

47. When there is a negative ordinance prohibiting a thing, it is to prevail notwithstanding that there is an Atidesha which by implication enjoins the thing. For instance, there is a rule that all sacrifices partake of the character of Darsha and Paurnamasi Yagyas. The result is that all the rules of Darsha and Paurnamasi Yagyas are applicable to the Pasu Yagya also. But there is a text which says that the Aghara and the Ajyabhaga homas need not be made in the Pasu Yagya. Therefore, these homas need not be made in the Pasu Yagya, though in the absence of the prohibitory text they would have to be made on account of the rule which lays down that all Yagyas must partake of the character of Darsha and Paurnamasi.

48. One of the Mimansa principles is the Gunapradhan Axiom, and since we are utilizing it in this judgment (apart from the badha and samanjasya principles) we may describe it in some detail.

49. ‘Guna’ means subordinate or accessory, while ‘Pradhan’ means principal. The Gunapradhan Axiom states :

“If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether.”

This principle is also expressed by the popular maxim known as matsya nyaya i.e. ‘the bigger fish eats the smaller fish’.

According to Jaimini, acts are of two kind, principal and subordinate (see Jaimini 2 : 1 : 6).

In Sutra 3 : 3 : 9 Jaimini states :

Kumarila Bhatta, in his Tantravartika (See Ganganath Jha’s English Translation Vol.3, page 1141) explains this Sutra as follows :

“When the Primary and the Accessory belong to two different Vedas, the Vedic characteristic of the Accessory is determined by the Primary, as the Accessory is subservient to the purpose of the primary.”

It is necessary to explain this Sutra in some detail. The peculiar quality of the Rigveda and Samaveda is that the mantras belonging to them are read aloud, whereas the mantras in the Yajurveda are read in a low voice. Now the difficulty arose about certain ceremonies, e.g. Agnyadhana, which belong to the Yajurveda but in which verses of the Samveda are to be recited. Are these Samaveda verses to be recited in a low voice or loud voice ? The answer, as given in the above Sutra, is that they are to be recited in low voice, for although they are Samavedi verses, yet since they are being recited in a Yajurveda ceremony their attribute must be altered to make it in accordance with the Yajurveda.

Commenting on Jaimini 3 : 3 : 9 Kumarila Bhatta says :

“The Siddhanta (principle) laid down by this Sutra is that in a case where there is one qualification pertaining to the Accessory by itself and another pertaining to it through the Primary, the former qualification is always to be taken as set aside by the latter. This is because the proper fulfillment of the Primary is the business of the Accessory also as the latter operates solely for the sake of the former. Consequently if, in consideration of its own qualification it were to deprive the Primary of its natural accomplishment then there would be a disruption of that action (the Primary) for the sake of which it was meant to operate. Though in such a case the proper fulfillment of the Primary with all its accompaniments would mean the deprival of the Accessory of its own natural accompaniment, yet, as the fact of the Accessory being equipped with all its accompaniments is not so very necessary (as that of the primary), there would be nothing incongruous in the said deprival”. See Ganganath Jha’s English translation of the Tantravartika, Vol.3 page 1141.

50. In our opinion the gunapradhan axiom applies to this case. Section 174 is the pradhan whereas Section 175 is the guna (or subordinate). If we read Section 175 in isolation then of course we would have to agree to Mr. Nariman’s submission that Section 11 of the Arbitration and Conciliation Act, 1996 applies. But we cannot read Section 175 in isolation, we have to read it along with Section 174, and reading them together, we have to adjust Section 175 (the guna or subordinate) to make it in accordance with Section 174 (the pradhan or principal). For doing so we will have to add the following words at the end of Section 175 “except where there is a conflict, express or implied, between a provision in this Act and any other law, in which case the former will prevail”.

51. No doubt ordinarily the literal rule of interpretation should be followed, and hence the Court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd.

52. In the chapter on ‘Exceptional Construction’ in his book on ‘Interpretation of Statutes’ Maxwell writes :

“Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what the words signify, and that the modifications thus made are mere corrections of careless language and really give the true intention.”

53. Thus, in S.S. Kalra vs. Union of India (1991) 2 SCC 87, this Court has observed that sometimes courts can supply words which have been accidentally omitted.

54. In G.P. Singh’s ‘Principles of Statutory Interpretation’ Ninth Edition, 2004 at pages 71-74 several decisions of this Court and foreign Courts have been referred to where the Court has added words to a statute (though cautioning that normally this should not be done).


Notwithstanding anything contained in the Act – Meaning of

Encyclopedia of Indian Law

What is meant by use of the expression “Notwithstanding anything contained in the Act” as contradiction to the phrase “Subject to the provisions of this Act” reliance has been placed on the judgement of the Supreme Court in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram AIR 1987 SC 117 = (1986) 4 SCC

 It has been explained that when a clause begins with the word “Notwithstanding” the object is to give it overriding effect over other provisions of the Act which is equivalent to saying in spite of those provisions the particular clause would have a full operation. This in contradistinction to the phrase “Subject to” which conveys that the provision would yield to another provision. The relevant discussion as contained in paras 68 is as under:

“68. A clause beginning with the expression “notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract” is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in South India Corpn. (P) Ltd. v. Secretary, Board of Revenue, Trivandrum [ AIR 1964 SC 207, 215 : (1964) 4 SCR 280] .

 It is well settled that the expression “notwithstanding” is in contradistinction to the phrase “subject to”, the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject.

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Ram Gopal Versus Nand Lal and others -14/11/1950



Ram Gopal  Versus Nand Lal and others Respondent

(Before: Saiyid Fazl Ali, B. K. Mukherjea And N. Chandrasekhara Aiyar, JJ.)

Civil Appeal No. 59 of 1949,

Decided on :   14-11-1950.

Interpretation of deeds—Principles of

Counsel for the Parties:

Shri P. L. Banerjee, Senior Advocate (Shri B. Banerjee, Advocate, with him) instructed by Shri R. K. Kuba, Advocate for Appellant

Shri S. P. Sinha, Senior Advocate (Shri N. C. Sen, Advocate, with him) instructed by Shri S.P. Varma, Advocate for Respondents.


Mukherjea, J—This appeal is directed against an appellate judgment of a D. B. of the Allahabad H. C. dated 6-9-1943, by which the learned Judges reversed a decision of the Civil Judge, Etawah made in O. S. No. 28 of 1936.

2. The suit was one commenced by the pltf., who is resp. 1 in this appeal, for recovery of possession of two items of immovable property-one a residential house and other a shopboth of which are situated in the town of Etawah. The properties admittedly formed part of the estate of one Mangal Sen who died sometime towards the end of the last century, leaving behind him, as his heirs, his two widows Mt. Mithani and Mt. Rani. Mangal Sen had a son named Chhedi Lal and a daughter named Janki Kuar born of his wife Mt. Rani, but both of them died during his lifetime. Chhedi Lal had no issue and he was survived by his widow Mt. Meria, while Janki left a son named Thakur Prasad. Janki’s husband married another wife and by her got a son named Babu Ram. On Mangal Sen’s death, his properties devolved upon his two widows, and Mt. Rani having died subsequently, Mt. Mithani came to hold the entire estate of her husband in the restricted rights of a Hindu widow. On 27-11-1919, Mt. Mithani surrendered the whole estate of her husband by a deed of gift in favour of Thakur Prasad who was the nearest reversioner at that time. Thakur Prasad died in 1921, leaving a minor son named Nand Lal who succeeded to his properties and this Nand Lal is the plaintiff in the suit out of which this appeal arises. On 27-10-1921, there was a transaction entered into between Babu Ram on his own behalf as well as guardian of infant Nand Lal on the one hand and Mt. Meria, the widow of Chhedi Lal on the other, by which two items of property which are the subjectmatter of the present litigation were conveyed to Meria by a deed of transfer which has been described as a Tamliknama; and she on her part executed a deed of relinquishment renouncing her claims to every portion of the estate left by Mangal Sen. It is not disputed that Meria took possession of the properties on the basis of the Tamliknama and on 10-4-1923 she executed a will, by which these properties were bequeathed to her three nephews, who are the sons of her brother Sunder Lal. Meria died on l9-6-1924. One Ram Dayal had obtained a money decree against Sunder Lal and his three sons, and in-execution of that decree the properties in suit were attached and put up to sale and they were purchased by Ram Dayal himself on 30-1-1934. On 1-6-1936, the present suit was instituted by Nand Lal and he prayed for recovery of possession of these two items of property on the allegation that as they were given to Mt. Meria for her maintenance and residence, she could enjoy the same only so long as she lived and after her death, they reverted to the Pltf. Sunder Lal, the brother of Meria, was made deft. 1 in the suit, and his three sons figured as defts. 2 to 4. Defendant 5 is a lady named Chirman Kunwar, in whose favour Sunder Lal was alleged to have executed a deed of transfer in respect of a portion of the disputed property. Ram Dayal, the decree-holder auction purchaser, died in May 1935 and his properties vested in his daughter’s son Ram Gopal under a deed of gift executed by him in favour of the latter. On 1-9-1938, Ram Gopal was added as a party deft, to the suit on the pltf.’s application. and he is deft. 6. The two other defis., namely, defts. 7 and 8, who were also made parties at the same time, are respectively the widow and an alleged adopted son of Ram Dayal.

3. The suit was contested primarily by deft. 6, and the substantial contentions raised by him in his written statement were of a twofold character. The first and the main contention was that Mt. Meria got an absolute title to the disputed properties on the strength of the “Tamliknama” executed in her favour by the guardian of the ptlf. and after her death, the properties passed on to the three sons of Sunder Lal who were the legatees under her will. Ram Dayal, it was said, having purchased these properties in execution of a money decree against Sunder Lal and his three sons acquired a valid title to them. The other contention raised was that the suit was barred by limitation. The trial Judge Decided both these points in favour of the contesting deft, and dismissed the pltf’s suit. On appeal to the H. C., the judgment of the Civil Judge was set aside and the plif’. suit was decreed.

4. Defendant 6 has now come up on appeal to this Ct. and Mr. Peary Lal Banerjee, who appeared in support of the appeal, pressed before us both the points upon which the decision of the H. C. has been adverse to his client.

5. The first point raised by Mr. Banerjee turns upon the construction to be placed upon the document executed by Babu Ram on his own behalf as well as on behalf of Nand Lal then an infant, by which the properties in dispute were transferred to Mt. Meria by way of a “Tamliknama”. The question is whether the transferee got, under it, an absolute interest in the properties, which was heritable and alienable or was it the interest of a life tenant merely. The document is by no means a complicated one. It begins by a recital of the events under which Nand Lal became the sole owner of the properties left by Mangal Sen and refers in this connection to the obligation on the part of both Babu Ram and Nand Lal to “support, maintain and console” Mt. Meria, the widow of the predeceased son of Mangal Sen. The document then proceeds to state as follows:

“I have, therefore, of my own accord and free will come up on appeal, without any compulsion or coercion on the part of anyone else while in my proper senses made a Tamlik of a double-storied pucca built shop . . . . . and a house and a kothri in Etawah. … . worth ` 8000 for purposes of resident of the Musammat, owned by the minor aforesaid. . . . . which at present stands let out on rent to Sunder Lal, brother of Mt. Meria aforesaid . . .. in favour of Mt. Meria aforesaid, widow of Chhedi Lal and made her the owner (Malik). If any portion or the whole of the property made a Tamlik of for the purpose mentioned above passed out of the possession of the Mussammat aforesaid on account of the claim of Nand Lal minor aforesaid, I and my property of every sort shall he responsible and liable for the same.”

6. This document has got to be read along with the deed at relinquishment, which is a contemporaneous document executed by Meria renouncing all her claims to the property left by Mangal Sen. The deed of relinquishment like the Tamliknama recites elaborately, with reference to previous events, particularly to the deed of gift executed by Mt. Mithani in favour of Thakur Prasad, the gradual devolution at the entire estate at Mangal Sen upon Nand Lal. It states thereafter that Babu Ram, as the guardian of the minor and also in his own right, “has under and Tamliknama dates this day made a ‘Tamlik’ in my favour of a ship along with a Balakhana and a kota for my maintenance and a house . . . for purpose of my residence which are quite sufficient for my maintenance.’ “I have therefore, of my own accord.”

the document goes on to say,

“made a relinquishment of the entire property aforesaid mentioned in the deed of gift . . . . worth rupees 25,000. I do covenant and do give in writing that I have and shall have no claim to or concern with the property. . . . belonging to the minor aforesaid, nor has the property aforesaid remained subject to my maintenance allowance nor shall I bring any claim at any time.”

The schedule to the instrument, it may be noted, gives a list of all the properties of Mangal Sen in respect to which Mt. Mithani executed a deed of gift in favour of Thakur Prasad, including the two items at property covered by the ‘Tamliknama’ mentioned aforesaid.

7. In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used ; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed:vide Rajandra Prasad v. Gopal Prasad,571. A. 296, in the present case the instrument of grant has been described as a “Tamliknama’ which means a document by which ‘Maliki’ or ownership rights are transferred and the document expressly says that the grantee has been made a ‘Malik’ or owner. There are no express words making the gift heritable and transferable ; no. on the other hand is there any statement that the transferee would enjoy the properties only during her life time and that they would revert to the grantor after her death.

8. It may be taken to be quite settled that there is no warrant for the proposition at law that when a grant at an immovable property made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta H. C. in Mt. Kollani Koer v. Luchmee Prasad, 24 W. R. 395 which was approved at and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the P. O, as early as in the case of Tayore v. Tagore, I. A. Sup. Vol. 47, (9 Beng. L. R. 377 (P. C.) ) that if an estate were given to a man without express words at inheritance, it would, in the absence of a conflicting context, carry, by Hindu law, an estate at inheritance. This is the general principle of law which is recognised and embodied in S. 8, T. P Act and unless it is shown that under Hindu law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a ‘widow’s estate’, there is no justification for departing from this principle. There is certainly no such provision in Hindu law and no text could be supplied in support of the same.

9. The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given ; it is enough if words are used at such amplitude as would convey full rights of ownership.

10. Mr. Banerjee naturally lays stress upon the description of the document as ‘Tamliknama’ and the use at the word ‘Malik’ or owner in reference to the interest which it purports to convey to the transferee. The word ‘Malik’ is of very common use in many parts of India and it cannot certainly be regarded as a technical term at conveyancing. In the language at the P. C., the term ‘Malik’ when used in a will or other document

“as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full property rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that suchfull proprietary rights were not intended to be conferred:vide Sasiman Chowdhurain v. Shib Narain,49 I. A. 25.”

This I think to be a perfectly correct statement at law and I only desire to and that it should be taken with the caution which the Judicial Committee uttered in course at the same observation that

“the meaning of every word in an Indian document must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the grantor from which it received its true shade of meaning.”

11. The question before us, therefore, narrows down to this as to whether in the present case there is anything in the context of these two connected instruments or in the surrounding circumstances to cut down the full proprietary rights that the word ‘Malik’ ordinarily imports.

12. The H. C. in reaching its decision adverse to the applt. laid great stress on the fact that the grant was expressed to be for maintanance and residence of Mt. Meria. This, it is said, would prima facie indicate that the grant was to enure for the life-time of the grantee. It is pointed out by the learned Judges that the language of the document does not show that anybody else besides the lady herself was to be benefited by the grant and the indemnity given by Babu Ram was also given to the lady personally. It is further said that if Meria was given an absolute estate in the properties comprised in the ‘Tamlikama’, there was no necessity for including these two properties again in the deed at relinquishment which she executed at the same time.

13. I do not think that the mere fact that the gift of property is made for the support and maintenance of a female relation could be taken to be a prima facie indication at the intention at the donor, that the donee was to enjoy the property only during her life-time. The extent at interest, which the donee is to take, depends upon the intention at the donor as expressed by the language used, and if the dispositive words employed in the document are clear and un-ambiguos and import absolute ownership, the purpose at the grant would not, by itself, restrict or cut down the interest. The desire to provide maintenance or residence for the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a measure of the extent of the gift. This was laid down in clear terms by the Judicial Committee in a comparatively recent case which is to be found reported in Bishunath Prasad v. Chandrika Prasad, 60 I. A. 56. There a Hindu executed a registered deed at gift at certain properties in favour of his daughter-in-law for the “support and maintenance” of his daughter-in-law and declared that the donee should remain absolute owner at the property (malik mustaqil) and pay Govt. revenue. There were no words in the document expressly making the interest heritable or conferring on the donee the power at making alienation. It was held by the Judicial Committee that the donee took under the document, an absolute estate with powers to make alienation giving title valid alter her death. In course of the judgment, Lord Blanesburgh quoted, with approval, an earlier decision of the Judicial Committee, where the words “for your maintenance” occurring in a deed of gift were held insufficient to cut down to life interest the estate taken by the donees. These words, it was said,

“are quite capable at signifying that the gift was made for the purpose of enabling them to live in comfort and do not necessarily mean that it was to be limited to a bare right at maintenance.”

14. On behalf of the resp., reliance was placed upon the decision at the Judicial Committee in Rameshar Bakhsh v. Arjun, 28 I. A. 1, (23 ALL. 194 (P. C.) ) in Support of the contention that in a maintenance grant it is the prima facie intention of the gift that it should be for life. In my opinion, the decision cited is no authority for the general proposition as is contended for by the learned counsel for the resp., and it is to be read in the context at the actual facts of the case which relate to grants at a particular type with special features at its own. It was a case where a Talukdar made a grant at certain villages to a junior member of the joint family for maintenance at the latter. The family was governed by the law at primogeniture and the estate descended to a single heir. In such cases the usual custom is that the junior members at the family, who can get no share in the property, are entitled to provisions by way of maintenance for which assignments at lands are generally made in their favour. The extent of interest taken by the grantee in the assigned lands depends entirely upon the circumstances at the particular case, or ‘rather upon the usage that prevail in the particular family. In the case before the P. C. there was actually no deed at transfer. It was an oral assignment made by the Talukdar, and the nature of the grant had to be determined upon the recitals at a petn, for mutation of names made to the Revenue Department by the grantor after the verbal assignment was made and from other facts and circumstances at the case. The case Woodoyaditto Deb v. Mukoond, 22 W. R. 225 which was referred to and relied upon in the judgment at the P. C. was also a case at maintenance or khor phos grant made in favour of a junior member at the family, where the estate was impartible and descended under the rules of primogeniture. It was held in that case that such grants, the object of which was to make suitable provisions for the immediate members at the family, were by their very nature and also under the custom of the land resumable by the zemindar on the death of the grantee, as otherwise the whole zemindary would be swallowed up by continual demands. This principle has obviously no application to cases of the type which we have before us and it was never, so applied by the P. O. as would appear from the decision referred to above.

15. The learned counsel for the pltf. resp. drew our attention in this connection, to the fact that the properties given by the ‘Tamliknama’ were valued at Rs.8,000, whereas the entire estate left by Mangal Sen was worth ` 25,000 only. It is argued that the transfer of nearly one third of the entire estate in absolute right to one who was entitled to maintenance merely, is on the face of it, against probability and common sense. I do not think that, on the facts of this case, any weight could be attached to this argument. In the first place, it is to be noted that whatever might have been the actual market value of the properties, what the widow got under the Tamliknama was a residential house and a shop, and the shop was the only property which fetched any income. This shop, it appears, was all along in possession of Sunder Lal, the brother of Meria, and the rent, which he paid or promised to pay in respect of the same, was only ` 12 a month. So from the income of this property it was hardly possible for Meria to have even a bare maintenance and this would rather support the inference that the properties were given to her absolutely and not for enjoyment merely, so long as she lived.

16. But what is more important is, that the object of creating these two documents, as the surrounding circumstances show, was not merely to make provision for the maintenance of Mt. Meria ; the other and the more important object was to perfect the title of Nand Lal to the estate left by Mangal Sen and to quiet all disputes that might arise in respect of the same. It may be that Mt. Meria could not, in law, claim anything more than a right to be maintained out of the estate of her deceased fatherin-law. But it is clear that whatever her legal rights might have been, Nand Lal’s own position as the sole owner of the properties left by Mangal Sen was not altogether undisputed or free from any hostile attack. As has been said already, Sunder Lal, the brother of Meria, was in occupation of the double-storied shop from long before the Tamliknama was executed and Meria got any legal title to it. It appears from the record that in 1920 a suit was instituted on behalf of the infant Nand Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Mt. Mithani by taking a settlement from her. Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mt. Meria who was the actual owner of Mangal Sen’s estate. The suit ended in and compromise arrived at through the medium of arbitrators and the result was that although Sunder Lal admitted the title of the pltf; the latter had to abandon the claims which were made in the plaint for rents, costs and damages. Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of ` 12 p. m. A few months later, the Tamliknama was executed and this shop along with the residential house were given to Meria in maliki right. The recitals in both the Tamliknama and the deed of relinquishment clearly indicate that the supreme anxiety on the part of Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Mt. Meria with regard to the rights of Nand Lal to the properties of Mangal Sen and to make his title to the same absolutely impeccable. That seems to be the, reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of maintenance. It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made Sunder Lal executed a rent agreement in respect of the shop in favour of Mt. Meria acknowledging her to be the owner of the property.

17. It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given. The word “Malik” is too common an expression in this part of the country and its meaning and implications were fairly well settled by judicial pronouncements long before the document was executed. If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, prefectly well known in the locality, to express such intention.

18. The H. C. seems to have been influenced to some extent by the fact that in the Tamliknama there was a guarantee given by Babu Ram to Meria herself and to no one else agreeing to compensate her in case she was dispossessed from the properties at the instance of Nand Lal. This covenant in the document was in the nature of a personal guarantee given by Babu Ram to Mt. Meria for the simple reason that the property belonged to an infant and it was as guardian of the ‘minor that Babu Ram was purporting to act. It was too much to expect that Babu Ram would bind himself for all time to come and give a guarantee to the future heirs of Meria as well. Probably no such thing was contemplated by the parties and no such undertaking was insisted upon by the other side. But whatever the reason might be which led to the covenant being expressed in this particular form, I do not think that it has even a remote bearing on the question that arises for our consideration in the present case. It is of no assistance to the pltf. in support of the construction that is sought to be put upon the document on his behalf.

19. I am also not at all impressed by the other fact referred to in the judgment of the H. C. that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed. I fail to see how the inclusion of the properties in the deed of relinquishment would go to indicate that Meria’s rights to these properties were of a restricted and not an absolute character. It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same transaction. Under the ‘Tamliknama’, Meria got two properties in absolute right out of the estate of Mangal Sen. By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the ‘Tamliknama’. After the ‘Tamliknama’ was executed in her favour there was no further question of her claiming any right of maintenance in respect of these two items of property. She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquishment. On a construction of the entire document, my conclusion is that there is nothing in the context of the document, or in the surrounding circumstances which would displace the presumption of full proprietary rights which the use of the word “Malik” is apt ordinarily to convey. The first contention of the applt. therefore succeeds and in view of my decision on this point, the second question does not arise for determination at all.

20. The result is that the appeal is allowed, the judgment and decree of the H.C. are set aside and those of the trial Judge restored. The deft. 6 will have his costs from the pltf. in all the Cta. There will be no order for costs as regards the other parties.

21. Fazl Ali, J—I agree with the judgment delivered by my learned brother, Mukherjea J.

22. Chandrasekhara Aiyar, J—During the hearing of the appeal, I entertained doubts whether the view taken by the H. C. was not correct. But on further consideration, I find that it cannot be maintained, having regard to the terms of the ‘Tamliknama’ (deed of transport in favour of Mt. Meria and the context in which it came into existence. The name of the document or deed does not very much matter. Though the word ‘malik’ s not a term of art, it has been held in quite a large number of cases, Decided mostly by the Judicial Committee of the P. C. that the word, as employed in Indian documents, means absolute owner and that unless the context indicated a different meaning, its use would be sufficient to convey a full title even without the addition of the word ‘heirs’, or ‘son’, ‘grandson’ and ‘great-grandson’. Of course, if there are other clauses in the document which control the import of the word and restrict the estate to a limited one, we must give the narrower meaning, otherwise the word must receive its full significance. Especially is this so, when the rule of interpretation laid down in Mohammed Shamsul v. Sewak Ram, 2 I. A. 7, (14 Beng. L. R. 226 P. C.) has come to be regarded as unsound.

23. The language employed in the ‘Tamliknama’ (Ex.II) is almost similar to the language of the deeds construed in Bhaidas Shivdas v. Bai. Gulab, 49 I.A.1and Bishunath Prasad v. Chandika Prasad, 60 I.A. 56 where it was held that an absolute estate was conveyed.

24. I agree that the judgment and decree of the H.C. should be set aside and that the decree of the trial Judge should be restored with costs to the applt. and in all the Cts.

AIR 1951 SC 139 : (1950) SCR 766