PETITIONER: <NAME> (<ORG>.) Vs. RESPONDENT: <NAME> & ANR. DATE OF JUDGMENT24/06/1975 BENCH: <NAME>, V.R. BENCH: <NAME>, V.R. CITATION: 1975 AIR 1590 1975 SCC (2) 159 ACT: Representation of the People Act , 1951, S.116B(2)-Stay of election judgment and order-Judge-Power-Dimensions of Judge power to stay-Difference between executive discretion and judicial discretion, explained-Cognisability of non-legal arguments in such cases-Equity and ground of "unclean hands"-<ORG>s cannot go into the merits of the case at the stage of granting stay-Balance of convenience, public justice etc. are relevant considerations--Precedents of pre- 1966 Election law are of no value to post-1966 cases of conditional stay--Nature of "type design' stay orders and their value-Legal effect of a stay order in general and in particular, in the instant case, as a Minister or Prime Minister-Power to ask for a review of provisional orders. HEADNOTE: In the General <ORG>ary Elections of 1971, the appellant was declared as a successful candidate from the Rae Bareli Constituency in Uttar Pradesh. She won the election by a margin of 1,11,810 votes over her nearest rival <NAME>. <NAME>, respondent No. 1, who was sponsored by <ORG> filed an election petition u/s 80 r/w S.100 of the Representation of the People Act, 1951 to challenge the election of the successful candidate. A learned single judge of <ORG> upheld the challenge on two grounds rejecting the other grounds of challenge. The learned judge also granted an absolute 20 days' stay. The appellant moved this <ORG>, challenging the 'unseating' verdict against her by <ORG>. The appellant also sought "absolute stay" of the judgment and order under appeal. Respondent No. 1 filed cross-appeals against the said judgment rejecting the grounds of challenge, except two. Allowing the petition and granting the stay in terms, the <ORG> HELD : 1. While the right to appeal is statutory, the power to stay is discretionary. But judicial discretion-indeed, even executive discretion-cannot run riot. The former though plenary, is governed in its exercise by sound guidelines and courts look for light, inter alia, from practice and precedent without however being hide-bound mechanically. Judicial power is dynamic, forward looking and socially luscent and aware. [407 H, 408 A] 2. The court decides forensic questions without getting embroiled in nonlegal disputes working as it does in a sound-proof system of sorts. The <ORG> is the quiet of the storm centre and views with an equal eye, the claims on each side, taking judicial note of the high issues and balance of convenience in the wider context. The judicial approach is to stay away from political thickets and new problems with institutionalised blinkers on, so long as the court methodology remains the same. Arguments about political sentiment, political propriety and moral compulsion though relevant at other levels, fall beyond the conventional judicial orbit and the courts have to discriminately shift them while deciding. on the grant of stay pending an appeal. If national crises and democratic considerations, and not mere balance of convenience and interests of justice, were to be major inputs in the Judges exercise of discretion systematic changes and shifts in judicial attitude may perhaps be needed. But sitting in time-honoured forensic surroundings the Supreme <ORG> is constrained to judge the issues before it by canons sanctified by the usage of this <ORG>. [408 C-H] 3. The preliminary objection of "unclean bands" not entitling the petitioner/ ,appellant to seek the equitable relief of stay is not founded on facts. The stay order does not state that it was to enable the election of a different leader that time was granted. The petitioner could not be faulted as having played false to the <ORG> since <ORG> convoked subsequent to the judgment has full bloodedly plumped in favour of her remaining in office 406 as Prime Minister and guiding the <ORG> as its one and only leader. In such matters one has go by prima facie materials and probabilities. (408 H, 409 A-El 4. At the stage when the <ORG> is considering whether a stay should be granted or not, it is premature and perhaps unwise to pronounce on the merits of the appeal itself except where the judgment contained grotesque errors absurd conclusions or grossly erroneous propositions of law. The High <ORG>'& finding, until upset, holds good, however weak it may ultimately prove. The offence of corrupt practice u/s 123 of the Representation of the People Act , 1951 may be light or grave, which is for the Bench which hears the appeal In extensor to hold, one way or the other. When findings of contravention of the election law is before the <ORG>, this <ORG> cannot take the prima facie view that the justice of the case justifies indifference to those findings. [410 C, 411A, F-G] 5. Socio-legal considerations such, as prior practice of this <ORG>, special circumstances compelling departure, the balance of convenience, dictates of public justice, the way in which public interest ties, are relevant to the grant or refusal of stay and the terms to be imposed on the petitioner in the event of grant. [411 H, 412 A] 6. It was for the first time in 1966, by amending Act LXVII of 1966, that a statutory right of appeal to the Supreme <ORG> was created by S.116A of the Representation of the People Act, 1951 and a plenary power to grant stay, conditional or otherwise was vested in this <ORG> u/s 116 B(2) of the Act, independently of constitutional remedies' The question of an absolute stay or a qualified stay of the unseating verdict did not and could not arise under the pre- 1966 law and to rely upon past precedents as tantamount to absolute stay of an order which took effect would be untenable. [413 G, 414 C-E] 7. The "type-design" of stay orders made by this <ORG> under the post1966 law has, with marginal variations, acquired a standardized form. This cursus curiae is more persuasive for adoption, unless exceptional legal or other grounds for deviation are made out for grant of absolute stay. The orders are dichotomous in character. They are : (a) that "the operation of the judgment and order of <ORG> be and is hereby stayed" and (b) the petitioner shall abide by certain enumerated terms viz. (i) that he will be entitled to attend the Sessions of the <ORG> and sign the <ORG>; (ii) he shall not take part in the proceedings of the <ORG> or vote or draw any remuneration as such member. [414 F-G, 415 A-B] 8. Section 8A being the necessary follow-up of the judgment u/s 100 of the Representation of the People Act , 1951 the legal effect of an order of this <ORG> suspending the application of the judgment and order of <ORG>' is that by sheer force of the first limb of this court's stay order, the judgment and order of <ORG> is nullified for the once i.e. till the appeal is disposed of. Consequently the disqualification also ipso jure remains in abeyance. There is a plenary eclipse of <ORG>'s judgment and order during the pendency of the appeal, subject to the few restraints clamped down on the applicant. [415 C-D, H, 416 A] 9. This appeal relates solely to the <ORG> Membership of the applicant and the subject matter of her office qua Prime Minister is not directly before this <ORG> in this litigation. Indeed that office and its functions are regulated carefully by a separate fascinating of Articles in the Constitution. There is some link between membership of one of the two <ORG>s of <ORG> and Ministership ( Art. 75 ), but once the stay order is made, the disqualification regarding Membership is in suspended animation and does not operate. Likewise the appellant's Membership of the <ORG> remains in force so long as the stay lasts. However there will be a limitation regarding the appellants' participation in the proceedings of the <ORG> in her capacity as Member thereof, but, independently of the Membership, a Minister and a forty the Prime Minister, has the right to address both <ORG>s of <ORG> (without right to vote, though) and has other functions to fulfil (Arts. 74, 75, 78 and 88 are Illustrative.) In short the restraints set out in the usual stay order cannot and will not detract from the appellant being entitled to exercise such 407 rights as she has, including addressing <ORG> and drawing salary, in her capacity as Prime Minister. There will thus be no legal embargo on her holding the office of Prime Minister. [416 D-G] [The court gave liberty to the parties to move a Division Bench of this ,<ORG>, if justifying considerations appeared necessary later on, to move for variations of the conditions of the instant stay order] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 887 of 1975 and Civil Misc. Petition No. 3557 of 1975 (Application for absolute and unconditional stay with an exparte ad interim order).

<NAME> and <NAME> for the Appellant. <NAME> for the Respondent.

ORDER

1. Right at the beginning, I must record appreciation of the valuable assistance given by counsel on both sides to the <ORG> in clarifying the twilight aspects and unraveling the latent facets of what, viewed in typically isolated legal perspective, unturned to the national wave-length and unclouded by the dust-storms of politics, is a humdrum case. Having regard to the obstreperous environs and mounting tensions surrounding the events following upon the judgment of the Allahabad High <ORG>, it must be stated to the Credit of <NAME> and <NAME> that in their suave submissions they have shown how sound and fury only help thwart the thought-ways of law and extra-legal tumults can be walled off from the <ORG> hall. The arguments have been largely legal and their merits have to be weighed in judicial scales. What, perhaps in a certain view, are not strictly pertinent to the stay proceedings have, however, been adverted to at the bar, inevitably and understandably, but within marginal limits, if I may say so, because the proceedings in the Halls ,of Justice must be informed, to some extent, by the great verity that the broad sweep of human history is guided by sociological forces beyond the ken of the noisy hour or the quirk of legal nicety. Life is larger than Law. Now I proceed to discuss the merits of the matter.

2. The appellant has moved this Court challenging the 'unseating' verdict against her by <ORG>. She, has also sought 'absolute stay' of the judgment and order under appeal. Entering a caveat, the respondent has also appeared through counsel and opposed the grant of stay.

3. While the right to appeal is statutory, the power to stay is discretionary. But judicial discretion-indeed, even executive discretion-cannot run riot. The former, though plenary, is governed in *Already reported in (1976) 2 S.C.R. P. 347.

its exercise by sound guidelines, and courts look for light, inter alia,. from practice and precedent, without however, being hide-bound mechanically by the past alone. After all, Judicial power is dynamic, forward-looking and socially luscent and aware. I mention this dimension of 'judge- power' because, the industry and ingenuity of both lawyers have unearthed prior instances zigzagging now and then but substantially striking the same note. A few orders from the debris of old records have been brought up which seem to suggest variations in the type of stay granted by the higher courts. I shall have occasion to dilate on them a little later. Suffice it to note that the power of the court must rise to the occasion, if justice, in its larger connotation, is the goal-and it is.

4. Having regard to the historic power-stakes involved in this election appeal and stay proceeding, vigorous arguments, marked by strokes of heat and flashes of light, have been heard in this application for stay and the time consumed at the bar has been considerably more than when like matters have been routinely dealt with by this <ORG>. Let it be plainly understood that the <ORG> decides forensic questions without getting embroiled in non-legal disputes working as it does in a sound-proof system of sorts. Moreover, notwithstanding the unusual, though natural, excitement and importance surrounding the case, the <ORG> is the quiet of the storm centre and views, with an equal eye, the claims on each side, taking judicial note of the high issues and balance of convenience in the wider context. Arguments about public sentiment, political propriety and moral compulsion, though touched upon at the bar and relevant at other levels, fall beyond the conventional judicial orbit and have to be discriminately shifted. Nevertheless, <NAME> has pressed before me the propriety and urgency of the <ORG> taking into consideration the national situation even while exercising its discretionary power. As, a counterweight to this submission, <NAME> has claimed that no republic can surrender its democratic destiny to a single soul without being guilty of overpowering the parliamentary process by a personality cult. This brings to the fore an activist interrogation about the cognisibility of such considerations by a court. Do the judicial process and its traditional methodology sometimes make the <ORG> look archaic, with eyes open on law and closed on society, forgetting the integral yoga of law and society ? If national crises and democratic considerations, and not mere balance of convenience and interests of 'justice', were to be major inputs in the Judges exercise of discretion, systemic changes and shifts in judicial attitudes may perhaps be needed. Sitting in time-honoured forensic surroundings I am constrained to judge the issues before me by the canons sanctified by the usage of this <ORG>.

5. Now to the points urged before me. More or less by way of preliminary objection, Shri <NAME> asserted that the petitioner,, having come with unclean hands, was not entitled to seek the equitable relief of stay. How were her hands unclean ? Because, the argument runs, her advocate induced <ORG> into granting a stay by misrepresenting that if the judgment came into immediate 4 09 effect, the national government would be paralyzed for want of a Prime Minister and so time was needed for the ruling <ORG> to elect a new leader to head the Government. Taken in by this alleged critical need of the democratic process, the learned Judge granted 20 days' stay. This spell, ingeniously secured, was perverted to consolidate her leadership, not to find a successor. If this version of the respondent were veracious, the petitioner's conduct were dubious and this <ORG> would not condone such 'solemn mockery'. But Shri <NAME>'s submission loses its sting if <NAME> were to be heeded. For, according to the latter, all in a hurry a stay was moved by the Allahabad advocate praying for stay stating both the need to elect a leader (not, another leader) and to enable filing of an appeal. The Congress Parliamentary <ORG> was since convoked but there was a thunderously unanimous vote reaffirming, faith in the petitioner as leader and Prime Minister. If her <ORG> so fullbloodedly plumped in favour of her remaining in office as Prime Minister and guiding the <ORG> as its one and only leader, the petitioner could not be faulted as having played false to the <ORG>. She could only call a meeting of the <ORG> but not coerce the members to elect anyone other than the one they had set their hearts upon. Whether that <ORG>'s leadership resources were too inadequate to secure an alternative chief may be an interesting question, but the <ORG> does not peep into that penumbral area. Moreover, the stay order does not state that it was to enable the election of a different leader that time was granted. I have no good reason to reject the petitioner's plea that the choice of an alternative leader was left to her <ORG>, that she did what she could in the spirit of the representation to <ORG> and did not what she could not viz., to force her partymen to push her aside for the nonce for the <ORG>'s satisfaction. In these matters one has to go by prima facie materials and probabilities. I overrule the 'unclean hands' objection.

6. <NAME>, for the petitioner, contended that an unconditional stay was appropriate_and essential because (a) it was Sanctioned by some precedent; (b) there were momentous consequences disastrous to the country if anything less than the total suspension of the order under appeal were made; (c) the adverse holding of <ORG> on two counts hardly exceeded, even on its face, technical violations unworthy of being visited with an ad interim embargo on <ORG> Membership during the pendency of the appeal apart from being palpably perverse and (d) the nation was solidly behind the petitioner as Prime Minister. Minimal justice, public interest and balance of convenience concurred in his favour. <NAME>, on the contrary, joined issue on these pleas and asserted that (a) the appellant must be treated like any other party; (b) that an absolute stay was unprecedented; (c) that the democratic process would take care of itself even if the petitioner stepped aside for a while; (d) the corrupt practices were corrupt in law and fact, fully proved and could not be glossed over by a court of law as technical and (e) the alleged solid support by party minions meant little since similar phenomena could be organized by any strategist in top office and the rule of law cannot be drowned by the drums and shouts of numbers. In his submission, public interest and balance, of convenience as also justice to <ORG> judgment demanded that an illegally elected Member did not continue longer as Prime Minister under the umbrella of a stay order from this Court, without jeopardizing the credibility of the country abroad.

7. <NAME> assailed, in his opening submissions, the two findings recorded against the appellant holding her guilty of corrupt practice. Indeed, he was at pains to convince me that his client had, a strong prima facie case on the merits, in the sense that the judgment, on its face, was perverse and legally untenable. Although I listened at some length to these arguments and, to an extent, to the counter submissions made by <NAME> in his endeavour to establish that the holdings were sound, I made it fairly clear in the course of the hearing that at this stage when I was considering whether a stay should be granted or not, it was premature and perhaps unwise to pronounce on the merits of the appeal itself except where the judgment contained grotesque errors, absurd conclusions or grossly erroneous propositions of law. Having considered the submissions on this basis, I do not think I should express any opinion way or the other on the merits of the findings. Nor do regard it just for counsel for the respondent to say that every discrepancy in the petitioner's evidence or other incorrectness in testimony can be called false. Not to accept a witness's evidence may be due to many grounds of probability not always because of univercity or unreliablity. These aspects will surely be examined at the hearing of the appeal, not now.

8. Counsel for the petitioner, after dealing with the 'ex- facie untenability of the judgment under appeal which I have just disposed of, moved on to what he called justice between the parties. This is not an ordinary lis, where even after stepping down from office, the petitioner can, if and after she wins the appeal step back into office. In politics, 'red in tooth and claw', power lost is not necessarily followed, after legal victory by power regained. The <ORG> cannot in that sense, restore the parties to their original position as in ordinary cases. However, the respondent suffers no prejudice by the continuance of the petitioner as <ORG> Member and Prime Minister. To cap it all, there is hardly a run of a little over half-a-year for the full term of this <ORG> to expire. So, he pressed for continuance of the status quo which had gone on for a few years now during the pendency of the Election Petition.

9. The respondent's counsel retorted that the question of justice between two private persons was alien to election litigation and cited a ruling to emphasize what is obvious. In an election case, the whole constituency is, in an invisible but real sense, before the court and justice to the electoral system which is the paramount consideration is ,best done by safeguarding the purity of the polls regardless of the little rights of individual combatants.

10. At the first flush I was disposed to prolong the 'absolute stay' granted by <ORG>, moved not only by what <NAME> had urged but by another weighty time factor that the appeal itself, in the light of the directions I have already given yesterday, may well be decided in two or three months. But on fuller reflection I have hesitated to take that course. After all, <ORG>'s finding, until upset, holds good, however weak it may ultimately prove. The nature of the invalidatory grounds upheld by <ORG>, I agree, does not involve the petitioner in any of the graver electoral vices set out in Section 123 of the Act. May be they are only venial deviations but the law. as it stands, visits a returned candidate with the same consequence of invalidation. Supposing a candidate has transported one voter contrary to the legal prohibition and even though he has won by a huge plurality of votes his election is set aside. Draconian laws do not cease to be law in court but must alert a wakeful and quick-acting legislature. So it follows that I cannot, at this preliminary stage, lightly dismiss the illegality of the election as held by <ORG>. But more importantly, I am disinclined to set store by <NAME> 'Private justice' submission (to borrow his own phrase) because the ultimate order I propose to make, if I may even here anticipate, substantially preserves the position of the petitioner as Member of <ORG> and does not adversely affect her legal status as Prime Minister.

11. In another facet of the same argument <NAME> urged that, after all, the petitioner had been held 'technically' guilty of ` corrupt practice' and that the grounds set out by the learned Judge were too flimsy to stand scrutiny at the appellate level. Therefore, the 'justice' of the case demanded continuance of the 'absolute stay' granted by the trial Judge himself. <NAME>, on the other side, refuted this submission as specious. His argument is this. 'Corrupt practice' could not be dismissed as 'technical' if one bad any respect for the law of the land as laid down by <ORG>. Once the law has defined 'corrupt practice', commission thereof cannot be condoned as 'technical.'That is defiance of the law and challenge to the wisdom of <ORG>.It is one thing to amend the law, but it is another to disregard iton a ground unknown to law that is only a nominal deviance.I am afraid it is premature and presumptuous for me, at this stage,to pronounce upon the relative worth of the findings of <ORG>.The offence may be light or grave. But that is for the Benchwhich hears the appeal in extenso to hold, one way or the other. Before me are findings of contravention of the election law and I cannot take the prima facie view that the justice of the case justifies indifference to those findings. In short, I am not influenced by this aspect of <NAME>'s argument.

12.Leaving aside the injury to private rights as of lesser consequence in election disputes, let me look at the customary factors courts are prone to probe in stay matters where the discretion vests in court.

13.What has been the prior practice of this <ORG> in such cases ? What, if any, are the special circumstances compelling departure in favour of the petitioner ? What is the balance of convenience ?

What does the public justice of the case dictate Which way does public interest lie ? These are the socio-legal considerations which are relevant to the grant or refusal of stay and the terms to be imposed on the petitioner in the event of grant. Stay pending appeal has been usually granted but hemmed in by conditions. The respondent himself has filed a sheaf of orders of conditional stay granted by this <ORG>, suggesting by implication that those conditions should be attached to any stay the <ORG> may be inclined to issue. The terms in which such limited stay orders have been couched, the legal implications thereof, the right surviving under them and the impact thereof on the office of Prime Minister of the petitioner will be scanned more closely later in this order. Suffice it to say for the present that for around two decades there has rarely been what <NAME> calls an 'absolute stay' issued by this <ORG> in election cases where a Member has been unseated by the High <ORG> for corrupt practice.

14. There was reference at the, bar to political compulsions like the swell of the tidal wave in favour of the petitioner which, even if true (though controverted by the other side), cannot breach the legal dykes to force a stay where precedentially it has not been granted. Nor can the national crisis, conjured up by counsel for the petitioner, in the event of her exit from office, be a valid legal consideration, even if it may perhaps have weight in other spheres. <NAME> urges that moreover one cannot readily accept that the nation will come to a grinding halt it one person is not available to fill the office of Prime Minister. I make no comments on these rival presentations for it is difficult for the Judge to guage with his traditional court roon apparatus the reality and extent of the circumstances of national magnitude the parties have dwelt upon.

15. So we come to the next criterion which is commonplace in this jurisdiction viz., the balance of convenience. Here, counsel for the petitioner has addressed an attractive argument (repeating in some measure what, under a different head, he had urged) that if the appeal itself were disposed of early, the continuance of the status quo would go a long way to preserve and promote administrative stability and policy continuity, having regard to the fact that the petitioner in this case was more than a Member of <ORG> but was the Prime Minister and leader of the ruling <ORG>. In a democracy, the Prime Minister is the central figure who decides crucial internal and international policy, directs measures of great economic moment and is responsible and accountable to the <ORG> and the nation for the performance of the Administration. Of course, collective <ORG> responsibility is of the essence of the democratic process, but <ORG> is virtually chosen by the President in accordance with the wishes of the Prime Minister. The broad guidance of the <ORG> in power not- withstanding. the personality of a Prime Minister has a telling effect on democratic government. If, therefore, the appeal itself will be disposed of in some months, 'as it is likely to be, the balance of convenience will be in favour of continuance of the same team which is animated by the Presence of the key personality within <ORG>. Again, the short spell of the pendency of the appeal-a case of this climactic pitch deserves to be disposed of with quick dispatch and I have already given some directions to facilitate it-is a strong factor for non-disturbance of the petitioner's position, having regard to the traumatic effect on and grievous consequences to the petitioner. Of course, these are components of a wider concept of balance of convenience and not altogether forbidden ground in dealing with discretionary exercise. May be there is some force in the plea that there should be a stay of operation of the judgment and order in such manner that upsetting the <ORG> in office should be obviated. Ordinarily. even with the same <ORG> ruling, when a Prime Minister resigns, the whole team is ushered out leaving it free for the new leader to choose his new set.

16. <NAME> has countered this argument by reliance on the practice in the parliamentary system where within the ruling <ORG> a leader is changed or ceases to be available and a new leader is elected, so that the democratic process finds smooth expression. This, he said, has happened in India, as elsewhere and no plea of balance of convenience can be built on what in fact is a desire to remain in office. The Judicial approach, as already pointed out by me, is to shy away from political thickets and view problems with institutionalised blinkers on, so long as the court methodology remains what it is. So no comments again. But the balance of convenience, widely or limitedly connoted, is reasonably taken care of in the shape of the conditional stay granted at the conclusion of this judgment.

17. <NAME> drew my attention to a few vintage instances of what he calls absolute stay having been granted in election matters by higher <ORG>s. These are cases of long ago and the argument based on them stems from an insufficient comprehension about the anatomy of the pre-1956 Representation of the People Act , 1951 (Act XLIII of 1951). The <ORG> speaks for today, based on current practice and present law.

18. In this context it is necessary to remember that in the Act as it originally stood, Election Tribunals tried election disputes and s. 107 provided

107. Orders to take effect only on publication-An order of the Tribunal under section 98 or section 99 shall not take effect until it is published in <ORG> under section 106 ."

Indeed, there was no right of appeal provided in the Act and the aggrieved parties had to approach <ORG> or <ORG> under the provisions of the Constitution. The higher Courts in such situations merely stayed the publication in the <ORG>, the consequence being that the order of the <ORG> did not come into effect atall. The question, therefore, of an absolute stay or a qualified stay of the unseating verdict did not and could not arise. To relyupon orders passed under the then law merely staying publication of theorder of the <ORG> in the <ORG> as tantamount to absolute stay ofan order which took effect would be untenable.

19. In 1956 a major change in the law was made wherebythe order of <ORG> appointed under S. 86 'shall take effect as soon as it is pronounced by the <ORG>' (vide S. 107 ,as amended by Act XXVII of 1956). By the same amending Act, an appeal was provided from orders of Election <ORG>s to <ORG> and s. 116A(4) clothed <ORG> with power to stay operation of the order appealed from-and if stay was granted 'the order shall be deemed never to have taken offect. Of course, against appellate orders of <ORG> the disappointed party could come to this Court under the provisions of the Constitution (.Arts. 133 or 136).

20.Still later, by amending Act No. LXVII of 1966, <ORG> was conferred original jurisdiction to try election petitions and it was provided in s. 107 that the order of <ORG> 'shall fake effect as soon as it is pronounced...... While a limited power to stay operation of the order of <ORG> was conferred by s. 116B(l) on <ORG> itself, the statutory right of appeal to <ORG> was provided for by S. 116A . However, by virtue of s. 116B(2) it was enacted :

"116B(2). Where an appeal has been preferred against an order made under section 98 or section 99 , <ORG> may on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from."

Thus, for the first time, it was in 1966 that a statutory right of appeal to this <ORG> was created and a plenary power to grant stay, conditional or otherwise, was vested in this <ORG>, independently of constitutional remedies.

21.This narration of the historical background regarding the pre-1966 statutory position is sufficient to distinguish old examples of the pattern of stay granted by this <ORG>. Today there is no case of prohibition of publication in the <ORG>. Above all, the type-design, if I may use such an expression, of stay orders made by this <ORG> under the present law has, with marginal variations, acquired a standardised form. Naturally, this cursus curiae is more persuasive for adoption, unless exceptional legal or other grounds for deviation are made out for grant of absolute stay.

22.Even on the basis of the post-1966 law, <NAME> has argued that taking legitimate cognizance of the peerless position of the appellant as Prime Minister of the country, judicial discretion must least disturb not merely her seat in <ORG> but her office in <ORG>.

23.I proceed to take a close-up of the 'sample orders' made by this Court during the last many years, dissect them in the background of the judgments under appeal where such orders were passed and mould my order deriving support therefrom. So I turn the focus on the implications and effect of the stay orders in the cases covered by Annexure A filed by the respondent which are in consonance with the usual orders passed by this Court in election appeals.

24.It is evident on its face that the orders are dichotomous in character. The two limbs stand out clearly and they are : (a) that 'the operation of the Judgment and Order of <ORG> be and is hereby stayed' and (b) the petitioner shall abide by certain enumerated terms viz., (i) he will be entitled to attend the Sessions of the <ORG> and sign the Register; (ii) he shall not take part in the proceedings of the <ORG> or vote or draw any remuneration as such Member. In the instances I have examined, the appeals are against orders 'unseating' the returned candidate on the ground of corrupt practice and, disqualifying him for the statutory six-year period prescribed in s. 8A. If corrupt practice is found, disqualification follows, although sometimes <ORG> expressly writes it into the order itself, as in the present case. If the finding of corrupt practice does not come into effect, the sequel of disqualification also does not come into effect. If the biopsy of the stay order inevitably shows that the finding of corrupt practice is suspended and is not operative, the electoral disqualification automatically stands eclipsed. Section 8A being the necessary follow-up of the judgment under s. 100 , what is the legal effect of an order by this <ORG> suspending the operation of the judgment and order of <ORG> ? By sheer force of the first limb of this <ORG>'s stay order, the judgment and order of <ORG> is nullified for the nonce i.e., till the appeal is disposed of. Consequentially, the disqualification also ipso jure remains in abeyance.

25.What then is the import of the conditions imposed in the stay order ? They inhibit the elected member, who otherwise by virtue of the stay of the judgment, will be entitled to exercise all his rights and privileges as Member, from doing certain things expressly tabooed, viz., (a ) participating in the proceedings; (b) voting or drawing remuneration. For all other purposes, the voiding judgment being suspended, he continues as Member. Indeed, the very direction that he attend the <ORG> and sign in the <ORG> as Member to avoid disqualification under Art. 101 of the Constitution postulates that he is a Member and is not disqualified under s. 8A of the Act. For, if the disqualification under s. 8A operates and he ceases to be a Member, there is no need to veto his drawing remuneration, voting or participating in the proceedings. It would be a curious contradiction to say that a person is disqualified to be chosen as or being a Member and yet be allowed to sign the <ORG> as Member. Can the <ORG>, without stultifying itself and usurping power, permit a non-Member to sit in the <ORG> instead of or even in the Visitor's gallery, unless it necessarily reads into the order of stay of judgment a suspension of the disqualification also ? There are a number of other privileges for a Member of <ORG> which are left untouched by this <ORG>'s prior stay orders. Moreover, the specific direction suspending the judgment and order under appeal, read in its plenitude, also suspends the finding of corrupt practice. So much so, the disqualification also shares the fate. I have no doubt that the reasonable effect of a stay order is that there is a plenary eclipse of the High <ORG>'s judgment and order during the pendency of the appeal, subject to the' few restraints clamped down on an appellant. Those restraints are the second limb of the stay order and are explicit enough.

26.The essential point to note is that by necessary implication the, disqualification imposed oil every appellant also stands suspended in all cases of conditional stay. The stay is complete, but carved out of it are but three, limitations. 'For all other purposes, the appellant, in all such cases, continues a Member. For instance, if he is prevented from entering the <ORG>, a breach of privilege arises. I have gone at length into these ramifications to remove recondite doubts. The typical stay restores to the appellant, during its operation, the full status of a Member of a <ORG> minus the right to participate in debates, including voting and drawing of remuneration as a legislator.

27.For these reasons I propose to direct a stay, substantially on the same lines as have been made in, earlier similar cases, modified by the compulsive necessities of this case.

28.What would be the legal impact of an order of this type on the Prime Ministership of the petitioner ? The question canvassed about the office of the Prime Minister and its involvement in the present case has exercised counsel on both sides and it is but proper to dissolve the mists of possible misunderstanding by an explicit statement. This appeal, it is plain, relates solely to the <ORG> Membership of the appellant and the subject matter of her office qua Prime Minister is not directly before this <ORG> in this litigation. Indeed, that office and its functions are regulated carefully by a separate fasciculus of Articles in the Constitution. There is some link between Membership of one of the two <ORG> and Ministership ( Art. 75 but once the stay order is made, as has been indicated above, the disqualification regarding Membership is in suspended animation and does not operate. Likewise, the appellant's Membership of the <ORG> remains in force so long as the stay lasts. However, there will be a limitation regarding the appellant's participation in the proceedings of the <ORG> in her capacity as Member thereof, but, independently of the Membership, a Minister,, and, a fortiori, the Prime Minister, has the, right to address both <ORG> (without right to vote, though) and has other functions to fulfil (Arts. 74, 75, 78 and 88 are illustrative) In short, the restrictions set out in the usual stay order cannot and win not detract from the appellant being entitled to exercise such rights as she has, including addressing <ORG> and drawing salary, in her capacity as Prime Minister. There will thus be no legal embargo on her holding the office of Prime Minister. However, this legal sequitur of the situation arising from the stay' of the judgment and order of <ORG>, including the suspension of the disqualification under S. 8A , has nothing to do with extra-legal considerations. Legality is within the <ORG>'s province to pronounce upon, but canons of political propriety and democratic dharma are polemical issues on which judicial silence is the golden rule.

29.It is true that between an absolute stay as sought and the stay as granted there is practically little difference when the petitioner is a Minister. Moreover when the <ORG> is not in session, as now, even the restrictions set out in sub-para III of para 31 of this order hardly, have any operation. In this view, the dispute between the parties one asking for an absolute stay (as if it were a magic formula) and the other citing heaps of orders of conditional stay for adoption (as if much difference would be made in practical effect) appears to be shadow-boxing, as pointed out by me even during the arguments.

30.Maybe, brevity which is usual in this <ORG> in orders of stay of this sort might well have sufficed here also but, the over all desirability to dispel possible ambiguity warrants a hopefully longer speaking order.

31.Let me sum up the terms of the operative order I hereby pass I. Subject to para III below, there will be a stay of the operation of the judgment and order of <ORG> under appeal.

II.Consequentially, the disqualification imposed upon the appellant as a statutory sequel under s. 8A of the Act and as forming part of the judgment and order impugned will also suspended. That is to say, the petitioner will remain a Member of <ORG> for all purposes except to the extent restricted by para III so long as the stay order lasts.

III. The appellant-petitioner, qua <ORG> Member, will be entitled to sign the Register kept in the <ORG> for that purpose and attend the Sessions of the <ORG>, but she will neither participate in the proceedings in the <ORG> nor vote nor draw remuneration in her capacity as Member of the <ORG>.

IV. Independently of the restrictions under para III on her Membership of <ORG>, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise to take part in the proceedings of either <ORG> or a joint sitting of the <ORG> (without right to vote) and to discharge other functions such as are laid down in Articles 74, 75, 78, 88 etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected or detracted from on account of the conditions contained in this stay order.

32.This order, by me sitting single as Vacation Judge,, is being delivered with a sense of hurry, although after careful consideration of arguments head till last evening. Now the <ORG> in not in session and the veto on the right to vote is currently academic. Situations may develop, circumstances may change and this order itself, like any interlocutory order, is provisional. If new events like the convening of <ORG> take place or fresh considerations crop up warranting the review of the restrictions in this stay order, the petitioner-appellant will be at liberty to move <ORG> of this Court again to modify the restrictions or pray for an unconditional stay. Likewise, the respondent may also if justifying considerations appear anew move for variation of the conditions in this stay order.

<NAME>

Petition allowed.

L1 114 SCI/77-2,500-23-6-78-GIPF.

<NAME>


JUDGMENT <NAME>, J.

1. This and the connected cases are references under Section 11(1) of the U.P. Sales Tax Act. They relate to the same assessee, but to different assessment years. A common question of law has arisen in these cases which has been referred by the revising authority for the opinion of this court. The question is :

Whether on the facts and circumstances of this case, the article ceased to be an agricultural produce and whether the tea produced by the assessee would be exigible to sales tax ?

2. The assessee owns some tea gardens. The tea-leaves grown in the gardens are sold after being processed and packed. The assessee's contention is that the sale of such tea is exempt from sales tax.

3. Under Section 3, which is the charging section, it is the turnover for a year which is taxed. The term "turnover" has been denned in Section 2(i) in the following words:

'Turnover' means the aggregate amount for which goods are supplied or distributed by way of sale or are sold, or the aggregate amount for which goods are bought, whichever is greater, by a dealer; either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration :

Provided that the proceeds of the sale by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, or poultry or dairy products from fowls or animals kept by him, shall be excluded from his turnover.

4. The assessee relies on the proviso, its contention being that tea sold by it is agricultural produce grown by itself on land which belongs to it. Now, there is no dispute that tea-leaves are agricultural produce and are grown by the assessee in its own gardens. But the department's contention is that tea-leaves are subjected to a long and complicated process which converts the tea-leaves into a different commercial commodity so that the tea-leaves do. not remain agricultural produce.

5. Income arising from agriculture is exempt from tax under the Income-tax Act . Under Section 2(1)(b)(ii) of the Income-tax Act, the performance by a cultivator of any process ordinarily employed by a cultivator to render the produce raised by him fit for being taken to the market does not make any change in the nature of the income which continues to be income from agriculture. A provision like this is not to be found in the U.P. Sales Tax Act. But it is clear that the principle underlying this provision has to be kept in view while deciding as to whether or not a produce is agricultural produce for the purposes of the U.P. Sales Tax Act. Under the U.P. Sales Tax Act what is exempt is the sale proceeds of an agricultural produce. It follows, therefore, that the agricultural produce must be in a salable state and any process employed to make the produce salable would not alter its nature. Now, it is a matter of common knowledge that a large number of agricultural products are subjected to some kind of processing before they are fit for sale. Tobacco leaves are ordinarily dried to make them salable. Barley and paddy are dehusked before they are sold as barley and rice. Sometimes agricultural products grown in the original form are not sold in the same form. Tea-leaves when plucked from fields are green and perishable. There is no finding that tea-leaves in that state are marketable. In fact, in that state they are not tea at all. In order to convert the leaves into tea, as it is understood commercially, the leaves are to be subjected to a process of drying, heating and roasting. It follows, therefore, that tea-leaves have to be subjected to a process which is ordinarily employed by the growers of tea in order to render it fit for sale in the market.

6. It is not disputed on behalf of the department that some process is necessary to convert tea-leaves into tea and such a process will not make any difference. But what is contended is that the process performed by the assessee in the instant case is a process which is more than the minimum required. The process to which tea-leaves are subjected by the assessee has been described by the revising authority in the following words :

That the assessee had subjected the tea-leaves to a long and complicated process before the goods could be ready for sale. Briefly recalling, the tea-leaves were first of all subjected to weathering in shadow in rooms on a wooden floor for about 14 hours and then they were crushed by hand or foot and were then roasted for about 15 minutes. Later, they were roasted on mats for about 15 minutes and then covered by wet sheets for generating fermentation. During this process the colour of leaves was changed from green to yellowish. The process did not stop there. The leaves were then subjected to grading with sieves of various sizes. Fanning machines are also used in completing the grading process. The produce was then finally roasted with charcoal for obtaining suitable flavour and colours. It is this final product which was eventually sold by the assessee.

7. It is the contention of the department that after the tea-leaves are put through the process of drying and heating, tea-leaves are converted into loose tea. If the processing had stopped at this stage, the loose tea would be an agricultural produce. But the processing thereafter is commercial in nature and cannot be said to be an agricultural process. The short question, therefore, is as to whether grading and roasting of loose tea is a process which can be said to have changed the nature of the commodity. In our opinion, the process of grading and roasting is not materially different from the process through which tea-leaves have already undergone. It is not a manufacturing process. The loose tea even after grading and roasting still remains tea. It is true that the process of grading and roasting is a more sophisticated process undertaken to fetch a better price and easy market for the tea. The intention of the <ORG> being to exempt the sale of agricultural produce by the cultivator, he should not be deprived of the benefit of the exemption merely because he subjects the tea-leaves to a refined and commercially better process in order to fetch better price. So long as the nature of the produce remains unaltered, it does not make any difference, if the processing is long and complicated. The same is true about packing. Loose tea is packed in convenient packages to facilitate its sale and would be a legitimate process which an agriculturist is entitled to undertake to render the produce fit for sale in the market.

8. It was contended that at an intermediary stage-when tea-leaves are subjected initially to the process of drying and heating-they are converted into loose tea which is salable in the market and the further process of roasting and grading would be commercial in nature. Reliance was placed on the report of the Inspector of Sales Tax who had been deputed by <ORG> to ascertain the process of the production of tea. This report has been reproduced by the revising authority in its revisional order. According to the report, loose tea can be sold as such after paying Central excise duty at the rate of 25 paise per kilo. However, there is no finding by <ORG> or by the revising authority that there is a market for such loose tea in the State of Uttar Pradesh. In the circumstances, the process of grading and roasting would be a part of the process necessary to render tea-leaves fit for being taken to the market.

9. We, accordingly, answer the question in the negative in favour of the assessee and against the department. The assessee would be entitled to the costs which we assess at Rs. 100.


<NAME>, J.

1. This appeal by special leave impugns the judgment and order dated 8th May, 1970 of <ORG>. The issue in the appeal relates to the application of Section 14(1) of the Hindu Succession Act, 1956. It stands outside the line of cases decided by this Court in that it is argued that, in giving maintenance, provision for residence is not to be made.

2. One <NAME> had two sons, <NAME> and <NAME>. <NAME> died in 1891 leaving no issue. <NAME> had two sons, <NAME> and <NAME>. In 1905 <NAME> was taken in adoption by <NAME>'s widow. After the adoption of <NAME>, <NAME> and <NAME> remained coparceners until the death in 1911 of <NAME>. <NAME> left behind his wife <NAME> and a daughter. On 7th February, 1928, <NAME> executed a will bequeathing his estate to <NAME>. <NAME>, who had been living with her father-in-law <NAME>, protested; being the widow of a coparcener she was entitled to be maintained out of joint family property. An agreement was then entered into between <NAME> and <NAME>. It was dated 26th June, 1934. It recited that <NAME> had been boarding and lodging with <NAME>, and that family disputes had arisen. To put an end to the family disputes, <NAME> and <NAME>, by the agreement, appointed one <NAME> as arbitrator to "allot property and cost for executant number 2 for her life for residence and maintenance". The arbitrator <NAME> entered upon the reference and made an award on 9th July, 1934. He set out the particulars of properties belonging to <NAME> at Bidasar and Ladnu and gave the choice of selecting one to <NAME> to "reside till her life time in them or in it and she can use it in any way she likes. On necessity she will get its repairs done with her own money. She will have no right to sell, mortgage of transfer in any other way. After her death, the properties stated in para No. 1 or 2 (whichever she might take) will revert to <NAME>, <NAME> and legal representatives. Her right will be only in her lifetime. She is authorised to undertake construction for necessity and convenience. She may increase or decrease apartments with her money. But she will not be authorised to destroy, deteriorate its usefulness and condition, etc.

4. For the maintenance of Smt. <NAME>, I give my finding that it is better to give a lumpsum instead of giving monthly or annually because she wants to receive money in lump sum. By giving lump sum, the disputes, which might arise from time to time at the time of demand and payment, might be avoided. Therefore I give may finding that <NAME> will pay a sum of Rs. 45,000 (rupees forty five thousand only) to Smt. <NAME> for maintenance in case she accepts the house at Ladnu and in case she takes the house and the Nohra at Bidasar, she will be given Rs. 37,000 (rupees thirty seven thousand only). Since there is no apartment in the Nohra, <NAME> will pay a sum of Rs.. 1000 (rupees one thousand only) more besides Rs. 37,000 (rupees thirty seven thousand only) for constructing Dhalia, room for keeping grass and fodder and a Hauz....

(5) The money which will be given to her for maintenance will be her personal money and she can use it as she likes (8) After the execution of the aforesaid terms, <NAME> will be free from all kinds of litigations or compensation of Smt. <NAME> and she will have no right in the ancestral or personal properties of <NAME> or his heirs or legal representatives. Further, <NAME>, his heirs or legal representatives will also have no right in Smt. <NAME>'s any property or her Shtridhan except noted in Para No.3....

3. On 10th July, 1934, <NAME> executed a document wherein she stated that she had accepted the property at Bidasar under the terms of <NAME> award. She would "have right in the house and <NAME> at Bidasar in the manner that I will go on residing in the said house at Bidasar till my life time and go on using the <NAME>. I will keep the house and <NAME> in my possession and use them in the manner I like and on necessity, I will get it repaired with my money. I will be authorised to effect minor changes etc. by way of construction for my convenience, but I will not be authorised to waste or damage the said <NAME> and <NAME>. After my death the house will again revert to <NAME>, his surviving sons and grandsons or other heirs and successors or legal representatives. My heirs and successors or legal representative will have no right of possession or ownership over the said property....

3. The arbitrator has allowed me Rs. 37,000 in case I take the house and Nohra at Bidasar (Nohra with Rs. 1000 for constructing rooms). I agree to take this amount for my maintenance etc. over which I will have absolute right....

7. In the end it is clearly stated that now I shall have no concern of any kind in the movable and immovable properties and the cash of <ORG> which might be existing in this state or in British India or at any other place....

<NAME> died on 24th April, 1945.

4. Section 14 of the Hindu Succession Act, 1956, reads thus :

Property of a female Hindu to be her absolute property - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

5. On 11th April, 1960, <NAME> executed sale deeds relating to the 'Nohra' in the <NAME> property in favour of one <NAME>, in respect of its Western side, and one <NAME>, in respect of its Eastern side.

6. On 17th May, 1960, <NAME> and his sons filed a suit challenging the validity of the sale. The vendees were made parties. The trial court dismissed the suit holding that <NAME> had become, by reason of the Act, the full owner of the property at Bidasar. The plaintiffs appealed to <ORG>. <ORG> took the view that the words "in lieu of maintenance" in the explanation to Section 14(1) applied to property specifically allotted to a widow for her maintenance while the words "or in any other manner whatsoever" covered specific property allotted to her or her residence. It held that <NAME> had not become the full owner of the property at Bidasar on the coming into force of the Act because she had only a restricted life-estate therein. The appeal was, accordingly, allowed. The sale deeds were held to be void and the plaintiffs to be entitled to possession of the <NAME> upon the death of <NAME>.

7. This appeal is by the vendees of the '<NAME>', <NAME> and <NAME>.

8. Mr. <NAME>, learned Counsel for the appellants, submitted that <NAME> had a pre-existing right to maintenance and that under the award she was given a life interest in the <NAME> property along with a sum of Rs. 37,000 in lieu of that right. She, therefore, acquired limited ownership of the <NAME> property under the award in 1934 and that limited ownership blossomed into full ownership on the coming into force of the Act.

9. Mr. <NAME>, learned Counsel for the respondents, submitted that, for the application of Section 14(1) , it was requisite that the property should have been 'acquired' and that the acquisition was of ownership rights comparable to those of a limited estate holder under the old Hindu law. Since <NAME> had been conceded only the right of residence in the <NAME> Property, she had not acquired any right thereto. Hence, Section 14(1) did not apply. The use of the two expressions "limited owner" and "full owner" in Section 14(1) presupposed the existence of a limited ownership right before the same could be converted into full ownership. The modes of acquisition contemplated in the Explanation to Section 14(1) suggested that it was the right of ownership which was insisted upon. A right in the nature of a right of residence could not be equated with a right of ownership. Even during the life time of <NAME>, the reversioners, to whom the <NAME> property belonged as legatees under <NAME>'s will, could create a mortgage thereof without her permission because they continued to be the owners of <NAME> property. The concession in the award of the right of residence in the <NAME> property to <NAME> was over and above the provision for maintenance in terms of money. Even if it were to be held that the award conferred a title to the property for the purposes of Section 14(1) , it did not not come from any pre-existing right.

10. In the leading case on the subject of Section 14 , <CITATION> ) by L.Rs. , it was held that under the Sastric Hindu Law a Hindu widow had a right to be maintained out of joint family property and this right ripened into a charge if the widow took the necessary steps for having her maintenance ascertained and specifically charged on the joint family property. Even if no specific charge were created, this right was enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. When Specific property was allotted to the widow in lieu of her claim for maintenance, the allotment was in satisfaction of her right to be maintained out of the joint family property. It was not a grant for the first time without any pre-existing right in the widow. The widow got the property by virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre-existing right. Section 14(1) was large in its amplitude and covered every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance. Where such property was possessed by her at the date of commencement of the Act, she became its full owner. The words "any property" were large enough to cover any and every kind of property but in order to expend the reach and ambit of the Section and make it all comprehensive the Explanation thereto had been enacted. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by Section 14(1) . The object of the <ORG> was to wipe out the disabilities from which a Hindu woman suffered in regard to the ownership of property under the old Sastric Law and to recognise her status as an independent and absolute owner of property. Sub-section (2) of Section 14 was in the nature of a proviso to Sub-section (1). It had to be read in the context of Sub-section (1) to leave as large a scope for the operation of Sub-section (1) as possible. So read, sub- section (2) had to be confined to cases where property was acquired by a Hindu woman without any pre-existing right for the first time under a gift, will, instrument, decree, order or award, the terms of which prescribed a restricted estate in the property. Where property was acquired by a Hindu woman in lieu of her right to maintenance it was by virtue of a pre-existing right and such acquisition was not within the scope and ambit of Sub-section (2) even if the instrument allotting the property prescribed a restricted estate in it. Where property was acquired by a Hindu woman under an instrument by virtue of a pre-existing right to maintenance and, under the law as it stood prior to the enactment of the Act, she would have had no more than a limited interest in the property, a provision in the instrument giving her limited interest in the property was merely by way of recognition of the legal position as it existing and the restriction on her interest, being a disability imposed by law, was wiped out and her limited interest enlarged under Sub-section (1).

11. <CITATION> . , it was argued that even if the land in question had been given to the appellant in lieu of maintenance, it had to be established tha't what was given to her was a limited estate in the sense of ownership without the right of alienation and that under Section 14 of the Act only such a limited estate would blossom into her absolute estate. this Court rejected the argument. It said that it was obvious that Section 14 was aimed at removing restrictions or limitations on the right of a Hindu woman to enjoy, as a full owner, property possessed by her so long as her possession was traceable to a lawful origin, that is to say, if she had a vestige of a title. It made no difference whether the property was acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever. The Explanation to Section 14(1) expressly referred to property acquired in lieu of maintenance and the Court could not see what further title the widow was required to establish before she could claim full ownership under Section 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance was sufficient title to enable the ripening of possession into full ownership if she was in possession of the property in lieu of maintenance. The Court added that it did not understand that in the case of <CITATION> , it had been laid down that what was enlarged by Section 14(1) into a full estate was the Hindi woman's estate known to Hindu Law. When the Court had used the words "limited estate", they were used to connote a right in the property to which the possession of the Hindu woman could legitimately be traced, but it was not a full right of ownership. If a Hindu woman was put in possession of property pursuant to or in recognition of a right to maintenance, it could not be denied that she had acquired a limited right or interest in the property and once that position was accepted it followed that the right got enlarged to full ownership under Section 14(1) .

12. The property acquired by a Hindu widow under an award for partition of her late husband's estate was the subject-matter of the decision of this Court in <CITATION> . The word "acquired" in Section 14(1) had , the Court said, to be given the widest possible meaning. This was so because of the language of the Explanation which made Sub-section (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any manner whatsoever. Sub-section (2) of Section 14 was more in the nature of a proviso to Sub-section (1). It could come into operation only if acquisition by any of the methods indicated therein was made for the first time without there being any pre- existing right in the Hindu woman who was in possession of the property. The mere fact that there had been a partition by means of arbitration which resulted in an award and a decree based on it did not bring the matter within Sub-section (2) as the provisions of Sub-section (1) became fully applicable in view of the terms of the Explanation.

13. Mr. <NAME> drew our attention to <CITATION> . , and he emphasised a passage which reads thus :

(7) It is true that the appellant was in possession of <NAME> properties but that fact alone is not sufficient to attract the operation of Section 14 . The property possessed by a female Hindu, as contemplated in the section is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of Sub-section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, Section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called 'limited estate' or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner a full owner of the property will all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. The Explanation to Sub-section (1) of Section 14 defines the word 'property' as including "both movable and immovable property acquired by a female Hindu by inheritance or devise...." Sub-section (2) of Section 14 also refers to acquisition of property. It is true that the Explanation has not given any exhaustive connotation of the word "property " but the word 'acquired used in the Explanation and also in Sub-section (2) of Section 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she has already acquired or which she acquired after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige or title. It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespasser. In other words, the provisions of Section 14(1) of the Act cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act when she is only a trespasser without any right to property.

It is difficult to see how this judgment can assist the respondents' case. The <ORG> did not intend to mean that the object of Section 14 was only to extinguish the estate called 'limited estate' or widow's estate' under the Hindu Law. That is clear from the passage quoted when it refers to "some kind of title" and "any vestige of title". It is clear also from what the <ORG> held in the last sentence quoted above, namely, that the provisions of Section 14(1) are not attracted in the case of a Hindu woman who is in possession of property only as a trespasser and without any right thereto.

14. The next case which Mr. <NAME> cited was <CITATION> (dead) . Mr. <NAME> stressed that it was there stated that the expression "possessed by" in Section 14(1) was not intended to apply to a case of mere possession without title and the <ORG> intended this provision for cases where the Hindu woman possessed a right of ownership in the property in question. In paragraph 9 of the same judgment the <ORG> said that it appeared that the relevant date on which the Hindu woman should be possessed of the property in dispute should be the date on which the question of applying the provisions of Section 14(1) arose. If, on that date, when the provisions of this Section were sought to be applied, the property was possessed by a Hindu women, it would be held that she was full owner of it and not merely a limited owner.

15. The next judgment upon which Mr. <NAME> placed reliance was that of this Court in <CITATION> , to which reference has already been made. It was pointed out that the Court had said that a plain reading of Section 14(1) made it clear that the concerned Hindu woman should have limited ownership in the property, which limited ownership would get enlarged by the operation of that sub-section. It was intended to enlarge any sort of a right which in no sense could be described as ownership. The expression "and not as a limited owner' would, than, not have been used at all. Now, in this case it was also said that limited ownership in the Hindu woman was a sine qua non for the applicability of Section 14(1) and this requirement stood fully satisfied in the case of a widow to whom property was made over in lieu of maintenance with full rights of enjoyment thereof minus the power of alienation. These were precisely the incidents of limited ownership. It was also said that the enactment of Section 14 was a step in the direction of practical recognition of the equality of the sexes and was meant to elevate women from a subservient position in the economic filed to a pedestal where they could exercise full powers of enjoyment and disposal of property held by them as owners, untrammelled by artificial limitations placed on their rights of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of 'stridhana'. This dual purpose underlying the Explanation to Section 14(1) had to be borne in mind and given effect to when the selection was subjected to analysis and interpretation and Sub-section (2) was not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warranted. A combined reading of the two Sub-sections and the Explanation left no room for doubt that Sub-section (2) did not not operate to take in property acquired by a Hindu woman in lieu of maintenance or arrears of maintenance (which was property specifically included in the enumeration contained in the Explanation) out of the purview of Sub-section (1).

16. The reference made by <NAME> and <NAME> to the arbitration of <NAME> records that <NAME> was the widow of <NAME>'s son and had been boarding and lodging with <NAME>. Family disputes had made the continuance of joint lodging and boarding impossible and <NAME> was appointed arbitrator "to allot property and cost" to <NAME> "for her life for residence and maintenance". There was, therefore, clearly, recognition of <NAME>'s pre- existing right to maintenance. The award that <NAME> made gave <NAME> an alternative in respect of the property in which she desired to reside, one at <NAME> and one at <NAME>. The award stated that if she chose the property at <NAME> she would receive Rs. 45,000 in addition, and if she chose the property at <NAME> she would receive Rs. 37,000 in addition (as also Rs. 1,000 for constructing certain apartments). The award entitled <NAME> to use the property she chose for residence for life and "she can use in any way she likes". She was entitled to undertake construction for necessity and convenience, to increase and decrease apartments with her money and to get repairs done. The only limitation was that she should not destroy or damage the property. <NAME> chose the property at <NAME> for residence and in the deed she executed in that behalf she stated that she would "keep the house and Nohra in my possession and use them in the manner I like".

17. In our view, on a perusal of the terms of reference, the award and the document executed by <NAME> indicating her preference for the <NAME> property, there is no doubt that <NAME> acquired the <NAME> property and the sum of Rs. 38,000 in lieu of her pre-existing right to maintenance. That the award of the property and the money was linked is clear from the fact that the quantum of the money depended upon whether <NAME> chose the <NAME> property or the <NAME> property. The award of both property and money was in lieu of her pre-existing right to maintenance.

18. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provisions for food and clothing and the like and take into account the basic need for a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1) .

19. We are supported in the view that we take by Mulla's Hindu Law (Sixteenth Edition) which sets out the position in law prior to the Act. The Manager of a joint Mitakshara family is under a legal obligation to maintain all male members of the family, their wives and their children. On the death of any one of the male members he is bound to maintain his widow and his children. The obligation to maintain these persons arises from the fact that the Manager is in possession of the family property (para 543). An heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain (para 544). A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style (para 554). A widow who does not succeed to the estate of her husband as his heir is entitled to maintenance out of his separate property as well as out of property in which he was a coparcener at the time of his death (para 559). A Hindu widow is, in the absence of special circumstances, entitled to reside in the, family dwelling house in which she lived with her husband (para 562). The maintenance to be allowed to a widow should be such an amount as will enable her to live consistently with her position as a widow, with the same degree of comfort and reasonable luxury as she had in her husband's house, unless there are circumstances which affect, one way or the other, her mode of living there. In determining the amount of maintenance the <ORG> should have regard, inter alia, to the provision and status of the deceased husband and of the widow and the reasonable wants of the widow, including not only the ordinary expenses of living, but what she might reasonably expend for religious and other duties incidental to her station in life (para 566). Where an undivided family consists of two or more males, related as father and son or otherwise, and one of them dies leaving a widow, she is entitled to reside in the family dwelling house in which she lived with her husband. If the house is sold by the surviving coparceners without necessity, the sale does not affect her right, and the purchaser cannot evict her until another suitable residence is found for her (para 573). A widow who is entitled to maintenance may sue, inter alia, for a charge on a specific portion her husband's estate for her maintenance and residence (para 579).

20. The Hindu Adoption & Maintenance Act , 1959, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3(d) to include "(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment."

(Emphasis supplied.)

21. Under the award provision was made, in lieu of <NAME> preexisting right to maintenance, of money and interest for life in the <NAME> property. <NAME>, therefore, acquired limited ownership rights in the <NAME> property in recognition of her pre-existing right to maintenance. Upon the coming into force of the Act the limited rights acquired by <NAME> in 1934 blossomed into full ownership of the <NAME> property, and she became entitled to sell its 'nohra'. In our view, therefore, <ORG> was in error in the view that it took.

22. The appeal is allowed. The judgment and order under appeal is set aside the judgment and order of the Sr. Civil Judge, <NAME> is restored.

23. In the facts and circumstances of the case, there shall be no order as to costs.