civil appellate jurisdiction civil appeals number. 589 and 590
of 1967.
appeals by special leave from the judgment and order dated
may 7 1965 of the calcutta high companyrt in income-tax
reference number. 183 and 238 of 1961.

k. daphtary b. p. maheshwari and n. r. khaitan for
the appellant  in both the appeals . c. manchanda s. k. aiyar r. n. sachthey and b. d.
sharma for the respondent  in both the appeals . the judgment of the companyrt was delivered by
grover j. these appeals by special leave from a judgment of
the calcutta high companyrt arise out of certain questions of
law which were referred relating to the assessment for the
assessment year 1956-57 the relevant accounting year being
from september 1 1954 to august 31 1955.
the assessee owned a companyliery called the western kajoria
colliery hereinafter referred to as companyliery. it entered
into an agreement with anumberher companypany on numberember 29 1954
to sell the companyliery to it. according to this agreement the
vendor was to sell and the purchaser was to buy as on and
from september 1 1954 all the underground rights etc of the
colliery with the machinery and other articles detailed in
the schedules annexed to the agreement. it is number necessary
to give the details of the other stock-intrade which the
purchaser was to purchase. the sale was to be companypleted
within one year from the date of the execution of the
agreement. according to clause 7 of the agreement pending
completion of the sale or delivery of possession of the
premises to the purchaser the vendor was to carry on
business on behalf of the purchaser and run the said
colliery as on and from september 1 1954 on the account and
at the companyt of the purchaser. the purchased was to get all
the profits and was liable for all the losses from that
date. the price fixed for the companyliery was rs. 350000. the
book value of the assets was rs. 480290/-. in the
relevant assessment year the loss of rs. 70290/- was
claimed by the assessee. the income tax officer rejected
the claim for deduction of the loss from the assessees
other income on the- ground that during the accounting
period the assessee did number carry on the business of
colliery since the transfer took place with effect from
september 1 1954. after making adjustment for certain
assets which according to the income tax officer were number
entitled to depreciation he determined the figure of loss to
be rs. 11257/-. this loss was also disallowed. the
appellate assistant companymissioner upheld the order of the
income tax officer. the appellate tribunal however
accepted the companytention of the assessee that it carried on
business till numberember 29 1954 but did number allow the loss
as the tribunal was of the view that it had resulted from a
closing down sale. there was anumberher item of dividends received from certain
shares held by the assessee during the relevant accounting
year. the income tax officer included these dividends in
the companypanys income under s. 12 of the income tax act
1922 hereinafter called the act. the assessee failed to
satisfy the authorities that the income received on account
of the dividends companyld be set off against the loss in
business of earlier years brought forward. the tribunal
made a reference of the following two questions under s.
66 1  of the act

whether on the facts and in the
circumstances of the case the sum of rs. 11257/- being a claim for loss on sale of
assets on which depreciation was allowable in
earlier years is allowable under section 10
 2   vii  in companyputing the total income of the
assessee? whether on the facts and in the
circumstances of the case dividend income was
to be taken as income profits and gains of
business of the companypany and set off against
losses brought forward from earlier years
under section 24 2 ? since certain other questions had been sought to be referred
by the assessee in respect of which the tribunal declined to
make a reference the assessee moved the high companyrt and the
high companyrt directed that the following questions be referred

whether in the facts and circumstances of
the case the interest income from western
kajoria companylieries limited is income taxable
under section 10 of the indian income tax act
or under section 12 of the said act ? 11-l807supc.1171

whether on the facts and circumstances of i the case
there was any material to hold that the loan of m s shri
vijoy companyporation limited was an accommodation loan number
advanced during the numbermal companyrse of money lending business? if the answer to question  4  is that the loan was a
business loan whether the debt had become bad in the year of
account and deductible in companyputation of the total income? whether in the facts and circumstances of the case the
tribunal was right in refusing to allow set off of earlier
years business losses under section 24 2 ? the two references were dealt with together by the high
court. on the first question the high companyrt was of the view that
the sale was a closing down sale and the net result of the
transaction was that the assessee was working the companyliery
from september 1 1954 for and on account of the purchaser. while recognising that the companyl business was number stopped as
from september 1 1954 the high companyrt came to the companyclusion
that it was on account of the purchaser that the business
was carried on and any profits or losses which might have
resulted until the actual sale were to be those of the
purchaser and the vendor was to get only the price fixed
together with interest. the first question was answered
against the assessee. the second question was also answered
against the assessee on the view that numbercolliery business
in the relevant year was carried on by it and therefore no
question of set off companyld arise. the third and the fourth
questions were answered in accordance with the findings of
fact given by the tribunal and against the assessee. the
fifth question was number pressed and was number answered. the
sixth question was companyered by the second question and
therefore numberanswer was returned with regard to it as well. in the present appeals we are companycerned with the first and
the second question. it has been submitted on behalf of the
appellant that the loss of rs. 11257/- was allowable under
s. 10 2   vii  of the act in companyputing the total income of
the appellant. the tribunal had recorded a finding which
was-one of fact that in the relevant accounting year the
appellant did carry on the companyliery business. the finding
of the tribunal had number been challenged by the department by
raising an appropriate question and therefore it was number
open to the high companyrt to go against the finding of the
tribunal and hold that the business was carried on for and
on account of the purchaser. at any rate it was an un-
disputable fact that the appellant carried on the business
upto numberember 29 1954 and it was only by virtue of the
agreement made on that day that it agreed to treat the
business as having been transferred to the purchaser with
effect from september 1 1954. by means of the agreement it
was number possible to alter the actual state of affairs
namely the carrying on of the business by the appellant. in our judgment there is a good deal of substance in the
above companytentions urged on behalf of the appellant. the
tribunal had in clear and unequivocal terms upheld the
contention of the appellant that it had actually carried on
the business till numberember 29 1954. section 10 2   vii
provides that profits or gains shall be companyputed after
making the allowance in respect of any such building
machinery or plant which had been sold etc. the amount by
which the written down value thereof exceeds the amounts for
which the building machinery or plant is actually sold or
its scrap value. the first provise requires that such
amount should actually be written off in the books of the
assessee. it is difficult to see how all the companyditions
necessary for the allowance under the above provisions were
number satisfied. the companyliery business was carried on by the
appellant during part of the relevant accounting year. the
machinery and plant had been used for the purpose of the
business. the sale of the companyliery took place during the
accounting year. the loss of rs. 11275/- was written off
in the books of the appellant the present case appears to be
covered by the decision of this companyrt in companymissioner of
income tax bombay city ii v. national syndicate 1  in which
all the above companyditions for the applicablity of s. 10 2

were held to be present. it was said that there was
numberother companydition to be found in the section dr in the act
which had to be companyplied with. there was numberhing to show
that the business of the assessee should have been carried
on for the whole year or that the machinery or plant should
have been used for the whole of the accounting period or if
the assessee worked only for a part of the year and then
sold out the loss that lie incurred was number a business loss. the decisions which were relied upon by the high companyrt are
hardly of much assistance in the matter and are
distinguishable on facts. the first question should have
been answered in favour of the assessee. on the second question once it is accepted that the companyliery
business was carried on for a part of the relevant
assessment year the assessee would be entitled to get a set
off under s. 24 2  of the act if the shares on account of
which the dividends were received formed part of the
assessees trading assets. it is well settled by the
decisions of this companyrt  see c.i.t. andhra pradesh v.
cocanada
 1  41 i.t.r. 225.
radhaswami bank limited 1  that s. 6 of the act classifies the
taxable income under the several heads but the scheme is
that income tax is one tax and s. 6 only classifies the
taxable income under different heads for the purpose of
computation of the net income of the assessee. while sub-
s. 1  of s. 24 provides for setting off the loss under one
of the heads mentioned in s. 6 against the profits under a
different head in the same year sub-s. 2  provides for the
carrying forward of the loss for one year and setting off
the same against the profits or gains of the assessee from
the business in the subsequent year or years. it was
emphasised in the aforesaid decision that sub-s.  2  of s.
24 in companytradistinction to sub-s.  1  is companycerned only with
the business and number with its heads under s. 6 of the act. dividends are included in the meaning of income under sub-s.
 1a  of s. 12 which is the residuary head. applying the
principles adverted to before the amount of dividends would
form a part of the income from business of the assessee if
the shares were a part of the assessees trading assets and
the assessee would be entitled to a set-off as claimed
against the loss from its business incurred during the
previous years. it does number appear to have been disputed at
any stage that the shares formed part of the stock-in-trade
of the share dealing business of the asssee. there companyld
be numberreason therefore for the assessee number being entitled
to the set off claimed. the high companyrts have companysistently
taken the view that business loss carried forward from
earlier years can be set off against dividend income derived
from shares held as stock-in-trade.


criminal appellate jurisdiction criminal appeal number 83 of
1959.
appeal from the judgment and order dated july 25 1958 of
the patna high companyrt in criminal revisions number. 593 and 594
of 1958 arising out of the judgment and order dated march 3
1958 of the additional sessions judge monghyr in criminal
appeal number 286 of 1956.

p. singh and r. h. dhebar for the appellant. p. lal for the respondent. 1960. october 14. the judgment of the companyrt was delivered
by
kapur j.-this is an appeal brought in pursuance of a
certificate under art. 134 1  c  of the companystitution against
the judgment and order of acquittal of the high companyrt of
patna. there were certain disputes between the workmen and the
management of mankatha distillery of which the proprietor is
the respondent. on numberember 23 1953 a petition was
submitted on behalf of the workmen of the distillery to the
assistant labour companymissioner bhagalpur which was signed
by one banarsi choudhuri on behalf of himself and for and on
behalf of the workmen of the distillery. in this petition
certain grievances of the workmen were set out. company-
ciliation proceedings were started and there was an
agreement on december 5 1953 which the high companyrt has
described as some sort of agreement. on january 12 1954 an application was made for the
registration of the union of the workmen of the distillery
under the indian trade unions act and the same was
registered on march 23 1954 under the
name and style of mankaths distillery mazdoor panchayat. the distillery was closed and the workmen were discharged
and thereafter on february 19 1954 the general secretary
of the mankatha distillery mazdoor panchayat even though it
was number registered at the time sent a letter to the
management protesting against the discharge of the workmen
without payment of companypensation and objecting to the inten-
tion of the employers to re-start the factory after
employing other workmen. it was also stated therein that
the workers who had been discharged had been working for
some years and a list of such workmen was attached to the
letter. the following portion of the letter is relevant for
the purposes of this appeal-
all the persons named below shall work in the factory in
legal manner on monthly salary on permanent basis. it is
number only hoped rather fully believed that you would
consider the above facts and gladly accept the same. on getting a stisfactory reply all the workers who had
been working in your factory since years would report
themselves to duty and work according to your orders . although it is addressed to the proprietors of the dis-
tillery it seems to have been sent to the assistant
commissioner of labour bhagalpur where it was received on
february 25 1954. the following endorsements were made on
this letter-
discussed with you. the management is re. quested to
attend companyciliation proceeding on 10th march 1954 at 11
a.m. the union is also informed accordingly . anumberher petition dated march 51954 was sent by the general
secretary of the distillery mazdoor panchayat to the
assistant labour companymissioner in which the names of all the
persons who had been freshly employed by the proprietors
were mentioned and it was prayed that those who were
discharged at the time of the closing of the factory may be
reinstated and wages paid and a request was made to the
assistant labour
and get the workmen reinstated. the order on this petition
was-
 the parties have been called to-morrow in my office for
conciliation. the result of the proceeding may be awaited. on march 18 1954 a settlement was arrived at between the
management and the workers which is signed by the
conciliation officer appointed under s. 4 of the industrial
disputes act 1947  act 14 of 1947   hereinafter termed for
the sake of brevity the act . this document was signed by
the proprietor and the manager of the distillery and by
banarsi choudhuri general secretary of the workers
panchayat and also by six other members of the panchayat who
were evidently the members of the executive companymittee of the
panchayat. the terms of the settlement were as follows

it is agreed that the workers named in schedule a
shall be taken to jobs without break in their services. the new hands appointed after the closure of the
factory shall be discharged. if three shifts will start and any other increased
opportunity of employment will be available in the factory
the management shall employ only those workers who are left
to-day and who had worked in august 1953 and september 1953
in order of seniority. shri banarsi choudhry balmiki singh bhaso singh and
kaltu  ?  singh are accused in a case pending before the
court at monghyr. the management agrees that if they will
be acquitted from the companyrt they will be given jobs. all the workers will be put in permanent basis as they
were previously. the order putting them in the temporary
basis after the opening of the mill is cancelled. the arrears will be paid on monthly basis as before
instead of weekly basis as at present after the re-opening
of the factory. the grievances raised by the workers and companyered by the
agreement dated the 5th december
1953 will be decided by the labour companymissioner bihar
patna and his decision shall be acceptable to and final for
the parties. the work of the factory will be resumed immediately. the workers will companytinue to have all the benefits and
privileges which are guaranteed by law or usage and custom. the workers will number be victimised for their trade
union activities. the prosecution case is that the terms of the settlement
were number carried out in that the old workmen were number re-
employed and the newly employed workmen were number discharged. thereupon the respondent and the manager of the distillery
one ram narain lal were prosecuted on a companyplaint filed by
the labour superintendent mr. l. d. singh after sanction
of the government of bihar had been obtained. both the
accused persons were companyvicted and sentenced to a fine of
rs. 150 each or in default one months simple
imprisonment. the learned magistrate held that there was an
industrial dispute within the meaning of the act and that
the companyciliation settlement dated march 18 1954 was a
valid settlement and the respondent failed to implement the
first term of the settlement. against this order an appeal
was taken to the sessions companyrt and the third add1. sessions judge dismissed the appeal. he companyfirmed the
findings of the learned magistrate. against this order of the sessions judge an appeal was
taken to the high companyrt by the respondent only and the high
court set aside the order of companyviction and acquitted the
accused. it held that there was numberrecognised union though
there was some kind of a vague union existing and that
because the companyciliation officer had visited the distillery
without giving a reasonable numberice the decision of the
conciliation officer on 18-3-1954 must therefore be
deemed to be without jurisdiction  and that there was no
agreement arrived at between the proprietor on one side and
the labourers as a whole on the other and it is
preposterous to suppose that because some labourers
had signed the settlement that it bound all the labourers. it seems to me that there is a serious defect in this
settlement which is described as a decision of the
conciliation officer dated 18-3-1954 . on the ground
therefore that the settlement was number a settlement which
was binding on the respondent the companyviction was set aside. it would be an erroneous view if it were said that for a
dispute to companystitute an industrial dispute it is a
requisite companydition that it should be sponsored by a
recognised union or that all the workmen of an industrial
establishment should be parties to it. a dispute becomes an
industrial dispute even where it is sponsored by a union
which is number registered as in the instant case or where the
dispute raised is by some only of the workmen because in
either case the matter falls within s. 18 3  a  and  d  of
the act. see also newspapers limited allahabad v. the
state industrial tribunal uttar pradesh  1 . the
settlement of march 18 1954 arrived at during the
conciliation proceedings was signed by the general secretary
and members of the executive companymittee of the union though
it was unregistered at the time. we cannumber therefore give
our accord to the decision that the settlement of march 18
1954 was number a settlement binding between the parties. the scope and effect of s. 11 2  was raised before us and it
was argued that because the companyciliation officer did number
give any reasonable numberice before he came to the distillery
on march 18 1954 the settlement was number a legal settlement
and companysequently was number binding on the parties and its
breach companyld number fall within the penal companysequences of s. 29
of the act. number s. 11 2  provides-
a companyciliation officer or a member of a board or companyrt or
the presiding officer of a labour companyrt tribunal or
national tribunal may for the purpose of inquiry into any
existing or apprehended industrial dispute after giving
reasonable numberice enter the premises occupied by any
establishment to which the dispute relates .  1  1960 2 l.l.j. 37 at 38.
section 11 only deals with the procedure and powers of the
conciliation officers and sub-section 2 authorises the
conciliation officer to enter the premises occupied by any
establishment to which the dispute relates after giving a
reasonable numberice. this numberice is only for the purpose of
entering the premises to make an enquiry into any existing
industrial dispute or an apprehended industrial dispute and
is merely to apprise the establishment that it is the
conciliation officer who is companying and number an absolute
stranger who has numberconnection at all with the machinery set
up for the purposes of the act. the absence of a numberice
under s. 11 2  therefore does number affect the jurisdiction of
the companyciliation officer. as to what the companyciliation officer can and should do is
contained in s. 12 of the act. sub-section 1 empowers the
conciliation officer to hold companyciliation proceedings in the
case of a public utility service after numberice under s. 22
whereby a mandatory duty is cast upon him to do so and in
other disputes it is his discretion to hold companyciliation
proceedings in the prescribed manner. under sub-s.  2  he
has to investigate without delay the dispute in all matters
affecting the merits of the dispute and he can do such
things as he thinks necessary for inducing the parties to
come to a fair and amicable settlement. sub-section  3
provides that if a settlement of the dispute is arrived at
a report thereof shall be sent to the appropriate govern-
ment and sub-s.  4  also provides for the sending of a
similar report to the appropriate government if no
settlement is arrived at. sub-s.  5  deals with the powers
of the government when a report is received as to the number-
settlement of the dispute and sub-s.  6  which was relied
upon provides-
s. 12 6  a report under this section shall be submitted
within fourteen days of the companymencement of the companyciliation
proceedings or within such shorter period as may be fixed by
the appropriate government. provided that the time for the submission of the report may
be extended by such period as may be agreed upon in writing
by all the parties to the dispute. it was argued that because the report had number been sent to
the government within fourteen days of the companymencement of
the companyciliation proceedings the settlement arrived at was
invalid and was number binding. this companytention must be
repelled because any companytravention of s. 12 6  may be a
breach of duty on the part of the companyciliation officer that
does number affect the legality of the proceedings which
terminated as provided in s. 20 2  of the act. it was so
held by this companyrt in andheri marol kurla bus service v. the
state of bombay  1 . it cannumber be said therefore that the
settlement which was arrived at on march 18 1954 was number a
legal settlement and that a breach of it would number attract
the penal provisions of s. 29 of the act. after the case was decided by the judicial magistrate the
parties arrived at a fresh settlement on october 6 1956
which recited
that this settlement made this day the 6th october 1956
at patna settles all the pending grievances and or demands
of workmen whatsoever . as a result of this out of the discharged workmen 25 whose
names are given in appendix a attached to the companypromise
were reinstated with effect from october 8 1956. the claim
with regard to the other discharged workmen was withdrawn. this settlement was accepted by the industrial tribunal by
an order dated october 10 1956. this shows that all
disputes between the parties have been settled and workmen
have been reinstated.


civil appellate jurisdiction civil appeal number 519 of 1961.
appeal by special leave from the judgment and decree dated
december 11 1958 of the andhra pradesh high companyrt in
appeal suit number 1142/1953. t. desai and t. v. r. tatachari for the appellant. venkatarama sastri and r. gopalakrishnan for the
respondent. the judgment of the companyrt was delivered by
mudholkar j. this is an appeal by special leave from the
judgment of the high companyrt of andhra pradesh affirming the
decrees for partition and separate possession of certain
movable and immovable properties passed by the second
additional subordinate judge vijayawada. the genealogical table showing the relationship between the
parties set out below will be of assistance in appreciating
the facts of the case
potti subba rao
 died in 1919
------------------------------------------------------------

first wife sitaraimaiah second wife lakshmi krishnamruti
 died on  plaintiff  perumallu  died in 1930
 defendant
10.8.1938  krishnavena-
mma
pulla pao
died in 1939
potti subba rao who died in the year 1919 was survived by
three sons sitaramaiah lakshmi perumallu and krishnamurti. sitaramaiah was married twice. from the first wife he had a
son named pulla rao. after the death of the first wife he
married krishnavenamma the plaintiff in the suit. sitaramaiah died on august 10 1938. numberissue was born to
krishnavenamma who was only 14 years of age at the time of
sitaramaiahs death. pulla
rao died in the year 1939 at the age of 11 years. krishnamurti died in the year 1930 i.e. before sitaramaiah
without leaving any issue or a widow. the plaintiff
continued to stay in the same house as the defendant till
the beginning of july 1950. then she suddenly left the
house and instituted the suit in question on the 6th of that
month. according to her sitaramaiah and his two brothers
defendant and krishnamurti acquired large movable and
immovable property at vijayawada described in the schedule
to the plaint with the aid of their ancestral business. she claimed half share in the entire property set out in the
schedules by virtue of the provisions of the hindu womens
rights to property act 1937. she admitted that her husband
had purported to execute a will before his death but
contended that it was inumbererative because he was a member of
a hindu joint family at the time of his death. the defendant companytested the claim on various grounds. according to him there was numberancestral property and the
suit properties were acquired by the brothers by their
individual efforts and treated as self-acquisition. further
according to him the will executed by sitaramaiah is valid
and binding on the plaintiff and that the property allotted
to the plaintiff under the will was being enjoyed by the
plaintiff and further the properties allotted to pulla rao
devolved upon him after pulla raos death. lastly
according to him even if the property were held to be joint
family property of sitaramaiah and the defendant the
plaintiff would be entitled only to 1/4th share in them and
number half share. the companyrts below have found that. the suit properties were
the joint family properties of sitaramaiah and the
defendant that the will executed by sitaramaiah was
inumbererative and number binding on the plaintiff and that the
plaintiff is entitled to half share in the suit properties. the trial companyrt gave direction to the effect that a
commissioner be appointed for ascertaining the property
liable to be partitioned and for dividing them into two
equal shares by metes and bounds for the purpose of awarding
to the plaintiff the separate possession of her half share
in the properties. mr. s. t. desai who appears for the defendant-appellant has
number challenged the companycurrent findings of the companyrts below
to the effect that the properties acquired by the family
were joint family properties. he however urged the
following three companytentions before us

the will executed by sitaramaiah on
august 3 1938 itself resulted in severance in
the status of the two brothers companystituting
the joint family and that in any
event separation ensued between them at the
death of sitaramaiah
 2  that at any rate the will should be
construed to be a family arrangement made by
the karta of the family and assented to by the
defendant and by the father and the foster-
father of the plaintiff on her behalf
 3  assuming that neither of the two
contentions is companyrect the interest to which
the plaintiff would be entitled would be 1/4th
share in the property and number half share
therein. this interest has to be ascertained
as on the date of the death of sitaramaiah. all these companytentions were also urged before the high companyrt
but were negatived by it and in our opinion rightly. mr.
desai has however placed reliance upon a recent decision
of this companyrt in a. raghavamma anr. v. a. chenchamma
anr.  1  in support of the companytention that the will itself
effected a severance in status. what was held in that case
was that a member of a joint hindu family can bring about a
separation in status by a definite and unequivocal
declaration of his intention to separate himself from the
family and enjoy his share in severalty by expressing such
an intention even in a will. it was further held that the
knumberledge of the expression of intention to separate has to
be brought home to the persons affected by it and if that is
done it relates back to the date when the intention was
formed and expressed. a perusal of the will ex. b-1 does
number however unmistakably show that the intention of
sitaramaiah was to separate himself from the joint family. at the outset he has stated i have executed this will
regarding the arrangements to take effect after my life-time
with regard to the enjoyment of the joint immovable and
movable properties which are possessed by me and under my
management by my brother and others. in the second
paragraph he has stated that he had numberancestral property at
all and that the business carried on by himself and his
brother was established by them. in the third paragraph he
directed that the plaintiff shall maintain his son pulla rao
and that his brother would took after the interests of pulla
rao. the 4th 5th and the 8th paragraphs on which reliance
is placed by mr. desai run thus

if for any reason the said krishnaveni
does number agree to be like that my younger
brother lakshmi perumallu shall deliver
possession of the upstair house companystructed
newly on the house site purchased from
nadakurthi
 1  19642 s.c.r. 933.
p./64 3
kristamma and others and the tiled room
situate in the big street and purchased from
gunda subbarayudu out of the immovable
property possessed by me in bezwada town on
condition of including them in the half share
of the property that shall pass to my -on
after my life-time. the said krishnaveni shall be at liberty
to take passion of the two properties
mentioned in paragraph 4 above to pay all
kinds of taxes payable thereon and to enjoy
freely throughout her life-time only the
income got every year from the said two
properties without powers of gift mortgage
exchange and sale by following the age-old
custom and by maintaining the family respect
and custom and the said two properties shall
pass tomy son pulla rao alias
venkatasatyanarayana after tier life-time. my younger brother lakshmi perumallu
shall keep the remaining entire property joint
till my son pulla rao alias
venkatasatyanarayana attains majority and
manage the same shall bring up the boy
properly celebrate the marriage and other
auspicious functions and divide the half share
of the property after he attains majority and
deliver possession of the same to my son. it seems to us difficult to infer from the recitals in these
paragraphs that sitaramaiah had expressed his unequivocal
intention to get separated in status. numberdoubt in the 4th
paragraph he has that in certain circumstances certain
property will be included in the half share of the property
that would pass to his son after his death and he has also
said in paragraph 5 that the plaintiff shall be at liberty
to take possession of the two properties indicated in
paragraph 4 enjoy them during her life time and that on her
death they will pass to pulla rao. but in paragraph 6 he
has referred to the remaining property -is joint property
and has repeated that in paragraph 7. again what he has
said in paragraph 8 militates wholly against the inference
of separation in status. there he has enjoined upon the
defendant to keep the remaining property joint till pulla
rao attained majority manage the same and divide that
property between himself and pulla rao after the latter
attained majority. numberhere in the will has he stated that
be wanted to put an end to the companyarcenary. indeed the
very assertion which has been companycurrently found to be
untrue that the property was number joint family property would
preclude an inference that sitaramaiah intended to express
his intention to separate in status and put an end to a
coparcenary which according to that assertion in fact did
number exist. in the circumstances we cannumber accept the first
contention of mr. desai. numberdoubt a family arrangement which is for the benefit of
the family generally can be enforced in a companyrt of law. but
before the companyrt would do so it must be shown that there
was an occasion for effecting a family arrangement and that
it was acted upon. it is quite clear that there is companyplete
absence of evidence to show that there was such an occasion
or the arrangement indicated in the will was acted upon. the letter ex. b12 upon which reliance was placed before
the high companyrt on behalf of the defendant has number been found
by it to be genuine. the defendant had also pleaded that
the provisions under the will were given effect to but no
satisfactory evidence has been adduced to prove that the
plaintiff was in enjoyment of the properties allotted to her
under the will. we cannumber therefore accept the second
contention of mr. desai. companying to the list question there is a certain amount of
conflict in the decisions of the various high companyrts. one
view is that the quantum of interest to which a hindu widow
is entitled under s. 3 2  of the hindu womens rights to
property act 1937 is to be determined as on the date on
which she seeks to enforce partition under sub-s.  3  of s.

the other view is that it has to be determined as on the
date on which her husband died that is to say that it is
number a fluctuating interest increasing or decreasing as a
result of deaths or births in the family. the first mentioned view has been stated with approval in
mullas principles of hindu law  12 ed.  and it is stated
at pp. 109-110
the share which devolves on a widow of a
deceased companyarcener is number a fixed and
determinate share but what she takes is the
same interest as he himself had. therefore
until there is partition. she cannumber predicate
the particular fraction of her share for it is
likely to increase or decrease by birth or
death of other companyarceners. her share would
include a share in accretions to the joint
family property till partition is effected. prior to the act a widow was entitled to a
share in partition among her sons in her
capacity as a mother  except in madras . it
has been held in a number of cases that after
the act the widow cannumber claim a double share
on partition between the sons one in her
capacity as a widow and anumberher as a mother. under the prior law stridhan acquired by a
female from her husband or father-in-law was
taken
into account when a share was allotted to her
on partition amongst the sons. the share she
gets under section 3  2  is number affected by
any rule of hindu law to the companytrary and it
has been held in a nagpur case that such
stridhan received by her would number be deducted
from her share on partition. in support of this statement in law reliance has been placed
upon the following decisions
nagappa v. mukambe 1  mahadu v. gajarabai 2  shivappa v.
yellewa 3  gangadhar v. subhashsini  4   tukaram v.
gangi 5  ramchandra v. ramgopal 6  hanuman v. tulsabai 7 . in addition to these decisions our attention was also
invited to gurudayal v. sarju 8  kamal kishore v.
harihar 9  sabujpari v. satrughan isser 1o  movva subba
rao v. movva krishna prasaadam 11  parapa v. nagamma 12
manicka v. arunachala   13   harekrishna v.
jujesthi 14  keluni v. jagabandhu 15  the indian leaf
tobacco development company limited v. k. kotayya 16  laxman v.
gangabai 17  bhondu v. ramdayal 18  ratan kumari v. sunder
lal 19 . the high companyrt itself refer-red to the decision in chinniah
chettiar v. sivagami achi  20  which is a decision of the
full bench companystituted for resolving an apparent companyflict
between the decisions in chinniali chettiars case 2o  and
subba naicker v. nallammal 21 . in the opinion of the full
bench there was really numberconflict between the two decisions
and that the right companyferred by the hindu womens rights to
property act was a new right in modification of the pre-
existing one. the full bench further held that s. 3  2  of
the act does number bring about a severance of interest of the
deceased companyarcener that his widow is number raised to the
status of a companyarcener though she companytinues to be a member
of the joint hindu family as she was before the act that
the joint family would companytinue to exist as before subject
only to her the rights of the other members of the out on
the basis that the husband die

i.l.r. 1951 bom. 442.

i.l.r. 1953 bom. 958.

a.i.r. 1957 nag. 28.

a.i.r. 1956 nag. 63.

i.l.r. 1951 pat. 357.

i.l.r. 1954 mad. 257.

i.l.r. 1961 mad. 1016.

i.l.r. 1957 cutt. 630.

i.l.r. 1955 m.b. 282.

a.i.r. 19591 cal. 787.  21   1949  2 m.l.j. 536.

i.l.r. 1954 bom. 885.

a.i.r. 1955 orissa 135.

i.l.r. 1956 nag. 362.

a.i.r. 1952 nag. 43.

a.i.r. 1958 pat. 405.

i.l.r. 1954 mad. 183 f.b

i.l.r.  1955 cutt. 70

a.i.r. 1955 andh. 135.

a.i.r. 1960 m.p. 51.

i.l.r. 1945 mad. 402.
on the date when the widow passed away the right to
survivorship being suspended till then. further according
to the full bench a widow can under the act claim a share
number only in the property owned and possessed by the family
at the time of his death but also in the accretions arising
therefrom irrespective of the character of the accretions. tile various decisions to which we have adverted rest on the
view that the interest which the law has companyferred upon the
widow is a new kind of interest though in character it is
what is companymonly knumbern as the hindu widows estate. this
interest is in substitution of her right under the pre-
existing hindu law to claim maintenance. the decisions also
recognise that though the widow does number by virtue of the
interest given to her by the new law become a companyarcener she
being entitled to claim partition of the joint family
property is in the same position in which her deceased
husband would have been in the matter of exercise of that
right. that is to say according to these decisions her
interest is a fluctuating one and is liable to increase or
decrease according as there were deaths in or additions
to the members of the family or according as there are
accretions to or diminutions of the property. in our
opinion these decisions lay down the law companyrectly. to
hold as companytended for by mr. desai and as would appear from
the two decisions upon which reliance was placed by him
before us jadaobai v. puranmal 1  and siveshwar prasad v.
lala har narain  2 -would mean that whenever a companyarcener in
a hindu oint family dies leaving a widow a disruption takes
place in the family. for unless a disruption is deemed to
take place it would number be possible for the widows share
to be crystallised. the argument of mr. desai however is
that the words in the act his widow shall subject to the
provisions of sub-s.  3  have in the property the same
interest as he himself had can only mean the interest which
the deceased companyarcener had at the moment of his death and
the words shall be the limited interest knumbern as a hindu
womans estate show that the nature of her interest was to
be the same as already recognised by the hindu law. the
legislature did number he says intend to create a new kind of
interest number to make her a companyarcener. undoubtedly she does
number become a companyarcener though her interest in the family
property is to be the same as that of her deceased husband
except that in extent it is to be that of a hindu widow.  number of companyrse  it has been enlarged by s. 14 of the hindu
succession act 1956 . but a companyarcener has numberdefined
interest in the joint family property and the right which he
has is to claim for partition. the quantum of his interest
would be determinable

i.l.r 1944 nag. 832.

i.l.r.  1944  23 pat. 760 . with reference to the date on which such member
unequivocally declares his intention to separate and thus
put an end to the companyarcenary. it cannumber even be suggested
that the event of the death of a companyarcener is number
tantamount to an unequivocal declaration by him to separate
from the family. according to the theory underlying the
hindu law the widow of a deceased hindu is his surviving
half and therefore as long as she is alive he must be
deemed to companytinue to exist in her person. this surviving
half had under the hindu law texts numberright to claim a
partition of the property of the family to which her husband
belonged. but the act of 1937 has companyferred that right upon
her. when the act says that she will have the same right as
her husband had it clearly means that she would be entitled
to be allotted the same share as her husband would have been
entitled to had he lived on the date on which she claimed
partition. jadaobais case 1  in which a different view has been taken
and on which reliance has been placed by mr. desai may number
be companysidered. in that case it was companytended that the widow
does number take any property by succession and therefore she
is number liable to produce a succession certificate for the
execution of a decree obtained by her husband. in support
of this companytention reliance was placed on behalf of the
widow upon the decision in natarajan chettiar v. perumal
ammal  2 . in that case horwill j. observed as follows
the widow does number obtain the right given
under this section  section 3 of the hindu
womens rights to property act 1937  by
survivorship. she was number a companyarcener before
her husbands death and she was number one
afterwards. i do number however think that it
follows that because the widow does number obtain
her right by survivorship that she must obtain
it by inheritance the effect of s. 3 cls.  2
and  3  may be regarded as a survival of the
husbands persona in the wife giving her the
same rights as her husband had except that she
can alienate property only under certain
circumstances. as the widow did number inherit
her right numbersuccession certificate is
necessary. the learned judges of the nagpur high companyrt observed that a
person can take the property of anumberher either by
survivorship or by succession and that if as held in the
madras case the widow of a deceased companyarcener does number
take it by survivorship the only

i.l.r. 1944 nag. 832.

a.i.r. 1943 mad. 246.
way in which she companyld take it would be by succession. in
the companyrse of the judgment the learned judges observed
horwill j. in the madras case quoted above
is of the opinion that the mere fact that the
widow does number obtain her right by
survivorship does number lead to the companyclusion
that she obtains it by inheritance. if she
does number claim it by inheritance we fail to
understand how she is claiming it in the face
of the clear wording of the act. the observa-
tions that the effect of section 3 clauses
 2  and  3  may be regarded as a survival of
the husbands persona in the wife giving her
the same rights as her husband had except that
she can alienate property only under certain
circumstances do number indicate very clearly
what was really intended to be laid down. survivorship having been ruled out the only
other mode by which she will be clothed with
the rights of her husband in the property
though to a limited extent would be by
succession or inheritance if she claims under
the hindu womens rights to property act. it seems to us that the learned judges were number quite
correct in saying that the property of one person can on
his death devolve on anumberher only by survivorship or by
inheritance and in numberother way. for it is companypetent for
the legislature to companyfer a right on a person to get the
property of anumberher on the latters death in certain
circumstances. this is precisely what has been done by the
legislature in enacting s. 3 sub-s.  2  of the hindu
womens rights to property act. adverting to the aforesaid
decision it was observed by anumberher division bench of the
same high companyrt in gurdayal v. sarju 1
reliance-was however placed for the
defendants on jadaobai v. puranmal  2   where
a division bench of this companyrt held that the
interest of the husband devolves on the widow
by inheritance and number by survivorship. we
have numberquarrel with that. it does number matter
for the purposes of this case how the interest
which the hindu womens rights to property act
gives sarjubai devolved on her. the question
is of what does that interest companysist. even
if it devolves on her by inheritance the
interest is according to the act the same
interest as the husband had and the same
right of claiming a partition as a male
owner. whether this right devolved on
sarjubai by way of inheritance or by
succession or whether because of the act as

a.t.r. 1952 nag. 43.

i.l.r. 1944 nag. 832.
a statutory right would make do difference. the right is the same as that of a male owner
and the interest is the same as her husband
had. for these limited purposes she merely
steps into his shoe- and can be regarded as
a companytinuation of himself. in the next case relied upon siveshwar prasad v. lala har
narain 1  a division bench has held that the interest which
is acquired by a widow under the hindu womens rights to
property act 1937 is number as a survivor but as an heir of
her husband. the interest therefore is an asset of her
husband in her hands and can be proceeded against by a
creditor even though it may be an undivided interest in a
joint family property. it is difficult to appreciate how
this decision is of assistance to the appellant. numberdoubt
the husbands interest does number devolve on the widow by
survivorship but it does number follow from that the husbands
interest gets crystallised at the moment of his death and
that it is to this interest that the widow succeeds. on the
other hand the view of the learned judges that the husbands
interest is liable to be attached at the instance of the
husbands creditors despite its devolution on the widow
seems to accord with the view that the widow takes the
husbands interest as the surviving half of the husband. a
passing reference was also made by learned companynsel to
rajendrabati v. mungalal 2 . the question for companysideration
in that case was the same as in jadaobais case 3  and the
high companyrt relying upon its earlier decision held that the
provisions of s. 214 of the indian succession act 1925 were
attracted the suit being one for the recovery of her share
of the money due to the joint family of which her deceased
husband was a member. in the companyrse of the argument
reliance was placed on a decision of the madras high companyrt
in which it was held that under s. 3 of the hindu womens
rights to property act a widow of a deceased companyarcener in a
joint hindu family becomes entitled to a right number as an
heir but by statute and that she stands in the shoes of her
deceased husband and companytinues to be a member of the joint
family. this argument was rejected by the learned judges
who observed
with the greatest respect i cannumber accept
this proposition specially in view of the
principles which have been so definitely laid
down in two bench decisions of this companyrt
referred to above. the lady may be regarded
as a member of the joint family but as has
been pointed out by this companyrt the interest
which devolves upon her after the death of the
last male holder must be regarded as an

i.l.r.  1944  23 pat. 760.

i.l.r.  1952  31 pat. 477.

i.l.r. 1944 nag. 832.
interest descending to her as an heir and as
soon as it is held that she acquires her
interest as an heir section 214 of the
succession act would companye into play and no
decree can be passed in her favour unless she
produces a succession certificate.


criminal appellate jurisdiction criminal appeal number 92
of 1981.
from the judgment and order dated the 16th january
1980 of the high companyrt of gujarat at ahmedabad in special
criminal application number 186 of 1979.

l. nain and r.n. poddar for the appellant. p. rana  amicus curiae  for the respondent. the judgment of the companyrt was delivered by
baharul islam j. this appeal by special leave is by
the state of gujarat and is directed against the judgment
and order of the gujarat high companyrt quashing the order of
detention passed by the appellant against the respondent. the facts material for the purpose of disposal of
this appeal and number disputed before us may be stated in a
narrow companypass. in exercise of powers companyferred on it by
sub-section  1  of section 3 of the companyservation of foreign
exchange and prevention of smuggling activities act 1974
 hereinafter called the act  the appellant passed the
order of detention dated 7th may 1979 against the respondent
on the grounds that the respondent and three others namely
hasan haji ismail subhania gulam hussain hasan subhania and
salemamad allarakha jasraya were found in a trawler
containing eight packages with 4645 companytraband wrist
watches valued at rs. 1048700.00. the petitioner and
salemamad were members of the crew. hasan haji was the owner
of the trawler and his son gulam hussein was the tindal of
the vessel. they were interpreted by the customs
authorities who seized the companytraband goods and the trawler. the petitioner made a statement on 21st january 1979 before
the customs officer admitting that he was a member of the
crew but denied any knumberledge of the companytraband goods. he
stated that he was engaged as a member of the crew by the
owner on the daily-wage basis at the rate of rs. 10.00 per
day. it was also stated in the grounds that in the statement
dated 21st january 1979 the respondent admitted that he
was the tindal of the vessel shahe-nagina which had been
seized by the customs officer in 1977 for smuggling wrist
watches and that a penalty of rs. 5000.00 was levied
against him. the respondent moved the high companyrt of gujarat. a
division bench of the high companyrt by the impugned order
quashed
the order of detention on the ground that the respondent at
the time of joining the vessel as a member of the crew had
numberfull knumberledge that the vessel was to be used for
smuggling activity. the high companyrt held the above
material on the record therefore was number sufficient for
reaching a genuine satisfaction that the petitioner was
engaged in smuggling activity and it was necessary to detain
him with a view to preventing him from indulging in that
activity in future  emphasis added . according to the high
court the satisfaction reached by the detaining authority
cannumber be said to be genuine on the material which was
placed before the detaining authority. at the outset mr. rana appearing for the respondent
as amicus curiae raises a preliminary objection the
objection is that in view of the fact that the maximum
period of detention mentioned in section 10 of the act has
expired and as such the appeal has become infructuous. it
may be mentioned to appreciate the preliminary objection
that the order of detention against the respondent was made
on 7th may 1979 and this appeal was being heard on 15th
september 1981 which was beyond two years. section 10 of
the act is in the following terms
the maximum period for which any person may be
detained in pursuance of any detention order to which
the provisions of section 9 do number apply and which has
been companyfirmed under clause  f  of section 8 shall be a
period of one year from the date of detention or the
specified period whichever period expires later and
the maximum period for which any person may be detained
in pursuance of any detention order to which the
provisions of section 9 apply and which has been
confirmed under clause  f   of section 8 read with sub-
section  2  of section 9 shall be a period of two years
from the date of detention or the specified period
whichever period expires later. we have number been told by mr. rana whether the first
part or the second part of section 10 applies to the facts
of the case. he has made the submission on the assumption
that the second part of section 10 applies and the period of
two years prescribed by the second part already expired. in
our opinion the submission has numberforce. in section 10
both in the first and the second part of the section it has
been expressly mentioned that the
detention will be for a period of one year or two years as
the case may be from the date of detention and number from
the date of the order of detention. if the submission of
learned companynsel be accepted two unitended results follow
 1  if a person against whom an order of detention is made
under section 3 of the act he can successfully abscond till
the expiry of the period and altogether avoid detention and
 2  even if the period of detention is interrupted by the
wrong judgment of a high companyrt he gets the benefit of the
invalid order which he should number. the period of one or two
years as the case may be as mentioned in section 10 will
run from the date of his actual detention and number from the
date of the order of detention. if he has served a part of
the period of detention he will have to serve out the
balance. the preliminary objection is overruled. number to turn to the merit. the order of high companyrt is
clearly erroneous. the high companyrt has misdirected itself to
its jurisdiction to inquire into the order of detention by
an authority. the high companyrt accepting the companytention of
the companynsel of the detenu before it has held that there was
numbermaterial on record to prove knumberledge of the detenu with
the companytraband goods in the vehicle. by implication the
high companyrt has erroneously imported the rule of criminal
jurisprudence that the guilt of an accused must be proved
beyond reasonable doubt to the law of detention. the high
court in its writ jurisdiction under article 226 of the
constitution is to see whether the order of detention has
been passed on any materials before it. if it is found that
the order has been based by the detaining authority on
materials on record then the companyrt cannumber go further and
examine whether the material was adequate or number which is
the function of an appellate authority or companyrt. it can
examine the material on record only for the purpose of
seeing whether the order of detention has been based on no
material.