JUDGMENT <NAME>, C.J.

1. I have bad the advantage of perusing the judgment prepared by my learned brother <NAME> and I am in entire agreement with his reasoning and conclusion. If I add a few words it is because the question raised in the case is not covered by decided authority.

2. <NAME> and <NAME> were undivided brothers. <NAME> died on 17-8-1943 leaving behind him his widow <NAME>. She sold a house which was a part of the joint family property to the first appellant in this second appeal. In the ordinary course <NAME> would have become entitled to the entire joint family property on the death of his brother <NAME>. But the appellant relied on the right conferred on a widow by Section 3(2) of the Hindu Women's Rights to Property Act , 1937 (hereinafter referred to as the Act). To meet this claim based on that Act, the plea was raised on behalf of the contesting respondent that at the time of the death of her husband <NAME> was leading an unchaste life and lived in adultery with a person at Kumbakonam. This fact has been found by both the Courts below and the claim of the appellant based on the Act negatived on the ground that by reason of her un-chastity the widow was disqualified from acquiring any interest under the Act. The contention on behalf of the appellant before us was that Section 3 (2) of the Act conferred upon the widow an unrestricted and unqualified right to take the property of the husband in the same interest as the husband himself had and her unchastity would not disqualify her from acquiring that interest, 'The material provisions of the Act run as follows :

"2. Notwithstanding any rale of Hindu law or custom to the contrary, the provisions to Section 3 shall apply where a Hindu dies intestate.

Section 3 . (1) When a Hindu governed by the Dayabhag School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son;

(2) Where a Hindu governed by any school of Hindu law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had."

3. The appellant's contention is based upon the language of Section 2 which declares that the provisions of Section 3 shall apply notwithstanding any rule of Hindu law to the contrary and on the fact that no disqualification is expressly mentioned in Section 3 . The learned Editor of the 10th Edition of Mayne on Hindu Law and Usage expressed the following opinion at page 722 :

" As the Act confers upon the widow a right of succession notwithstanding any rule of Hindu law, in unchaste widow will not be disqualified from inheritance. Similarly the rights of succession of the widowed daughter-in-law will not be subject to the condition of chastity even in the Dayabhaga school. For the same reason the widow will be entitled to succeed, notwithstanding any ground of disqualification under Hindu law in either School." The learned editor of the subsequent edition has added the remark : "It may be stated that this is perhaps an unintended result".

The question is whether we are compelled to form the same opinion having regard to well established principles of construction of statutes.

4. The dominant purpose in construing a statute is to ascertain the intention of the <ORG>. No doubt, the meaning of a statute is primarily to be sought in the terms as enacted, but the terms must be construed with due regard to the subject matter and object of the statute. The intention of the <ORG> must be first sought in the statute itself, then in other legislation and contemporaneous circumstances and finally by ascertaining what was the law before the Act, what was the mischief or defect for which the common law did not provide, what remedy the <ORG> have provided to cure the defect and tile true reason of the remedy. When the enactment is in the nature of an amending provision, that is to say, a provision which amends the general law on the subject in any particular it should not be interpreted so as to alter completely the character of the principal law, unless clear language is found indicating such intention. Statutes which introduce new principles into any branch of the law should be expressed in clear unambiguous terms (<ORG>, vol. 81, pp. 477, 491, 493 and 504). There is always a presumption that the "<ORG> does not intend to make any substantial alteration in the law beyond what it expressly declares, either in express terms or by clear implication, or in other words, beyond the immediate scope and object of the statute." (Maxwell on Interpretation of Statutes, Edn. 9, p. 85).

"Statutes regulating heirship or descent, or giving force to wills and to the devises contained in wills should be read as not intended to affect paramount questions of public policy or depart from well settled principles of jurisprudence."

<NAME> v. <NAME>, 48 Bom. 569 at p. 575.

"The words of the statute are to be construed so as to ascertain the mind of the <ORG> from the natural and grammatical meaning of the words which it has used, and in so construing them the existing state of the law, the mischiefs to be remedied, and the defects to be amended, may legitimately be looked at together with the general scheme of the Act."

(In re,Viscountess <NAME>'s claim, 1922-2 A. 0. 839 at p. 365).

". . . . general words are to be construed so as to pursue the intent of the makers of statutes and so as to import all these implied exceptions which arise from a close consideration of the mischiefs sought to be remedied and of the state of the law at the moment when the statute was passed"

(1922) 2 A. C. 339 at p. 869.

5. The Act with which we are concerned is described as "an Act to amend the Hindu law governing Hindu women's rights to property." The object is stated in the preamble thus:

"Whereas it is expedient to amend the Hindu law to give better rights to women in respect of property."

The Hindu law as it stood before the passing of the Act gave certain rights to women in respect of property. The object of the Act was to give "better rights" to them. Inter alia under the law as it stood before the Act, a Hindu widow who was not unchaste was entitled to inherit to the separate property of her husband when he died intestate and leaving no son (or son's son or son's son's son), if there was a son she was entitled to claim maintenance against the son and if the property was joint family property against the coparceners of her husband, provided she was not unchaste. Unchastity was a disqualification which prevented her from claiming rights to which she was otherwise entitled under the law. If the object of the Act was to remove the disqualification on the ground of unchastity, then, in my opinion the appropriate language would have been different, vide, for instance, the Hindu Inheritance (Removal of Disabilities) Act XII [l2] of 1928, which is described as an Act to amend the Hindu law relating to exclusion from inheritance of certain classes of heirs and to remove certain doubts. An Act designed to remove the bar of unchastity cannot be properly called an Act to confer a right. If the contention of the appellant is to be accepted the object of the Act would be among other things, to confer rights on unchaste women.

6. There is another aspect of the matter which, in my opinion, throws considerable light on the scope of the Act. If the object of this enactment was inter alia to abrogate the rule of Hindu law as regards unchastity and to remove the disability from inheritance on that ground, then, it is impossible to comprehend why the <ORG> should have removed that bar only in the cases provided for by the Act and not in cases where a Hindu dies intestate and sonless. There can be no imaginable reason why an unchaste widow shall be disqualified from inheriting to her husband's property when he did not leave a son behind but should be permitted to take an interest in her husband's property along with a son. It appears to me to be clear that this Act has not expressly or by implication removed the disqualification on the ground of unchastity which is based on ethical foundations and the sentiment of the people. It was argued for the appellant that Section 3 did not make any exception or impose any restriction on the right conferred on the widow. The answer to this contention is that if by any rule of law in force at the time of the enactment, there is a disqualification or disability from acquiring any right, unless such disqualification or disability is expressly or by necessary intendment removed by the Act, the provisions of the Act must be read subject to such general rules of law. To give an instance, there is a rule of Hindu law which is also a rule of general public policy that a murderer is disqualified from inheriting to the estate of the murdered man. Can it be successfully contended that a wife who has murdered her husband would be entitled to the rights conferred on her by S 3 of the Act ? The learned advocate for the appellant was not prepared to go this length and I believe, rightly. An interesting case which illustrates this principle is Queen v. <NAME>, (1872) 7 Q B. 361. 32 and 33 Vict. ch. 55 enacted (s. 9) that in the Municipal Corporation Acts, words importing the masculine gender shall include females for all purposes connected with the right to vote at the election of Councillors, auditors and assessors. Nevertheless, it was held that a married woman was not entitled to vote because of the disability by reason of the status of coverture. It was contended that the statute did not contain any exception in regard to married women and, therefore, even married women were entitled to vote. The provisions of the Married Women's Property Act were also relied upon, but the contention was overruled. <NAME> observed :

"The 32 and 33 Vict. Ch. 55 .... enacted that where-ever men were entitled to vote, women, being in the same situation, should thereafter be entitled; but this only referred to women possessed of the necessary qualification in respect of property and the payment of rates, and I cannot believe that it was intended to alter the status of married women. It seems quite clear that this statute had not married women in its contemplation."

<NAME> said that the Act only removed the disqualification by reason of sex and left untouched the disqualification by reason of status. The other learned Judge <NAME>, disposed of the contention based on the Married Women's Property Act thus:

"The Married Women's Property Act was intended to protect married women in the enjoyment of the rights of property and was not intended to extend in any way to the political rights of the women, and we must not by a side mind give an extension to its effect which we can clearly see was not intended."

This is what we would be doing if we imported into the Hindu Women's Eights to Property Act a provision removing the disqualification on the ground of unchastity. In my opinion, if the <ORG> intended to confer rights on even widows who were otherwise disqualified under the general rule of Hindu law, then it would have given expression to that intention. If I could borrow the language of <ORG> in the Viscountess <NAME>'s case, 1922-2 A. C. 839, I would say that it would require a convincing demonstration to satisfy me that the <ORG> intended to effect a change so momentous and far- reaching by so furtive a process.

7. Much reliance was placed on Section 2 which declares that the provisions of Section 3 shall apply notwithstanding any rule of Hindu law or custom to the contrary. It is important to note that the language is not "Notwithstanding any rule of Hindu law or custom" but "Notwithstanding any rule of Hindu law or custom to the contrary." If there is any rule of Hindu law or custom which is contrary to the provisions of Section 3 , then it is such a rule that is abrogated and not every rule of Hindu law which is not directly contradicted by the provisions of Section 8 . As pointed out by <NAME>, it is the general rule of Hindu law that a son excludes the widow in respect of separate property and the surviving coparceners exclude the widow in respect of joint family property that are contrary to the provisions of Section 3 ; and Section 2 declares that notwithstanding these rules of Hindu law, the provisions of Section 3 shall apply.

8. I have, therefore, come to the conclusion that we are not obliged to hold that the effect of the enactment is to bring about something not intended by the <ORG>, as the learned Editor of Edn. 11 of Mayne's Hindu Law opined. On the finding of fact that <NAME> was unchaste at the time of her husband's death, she was disqualified from acquiring any interest under the Hindu Women's Eights to Property Act . The second appeal fails and is dismissed with costs.

9. <NAME> The point for determination is whether a Hindu married woman living in adultery at the time of her husband's death is disqualified by reason of her unchastity from succeeding to his interest in joint family property under Section 8 , Hindu Women's Eights to Property Act (XVIII  of 1937) hereinafter referred to as "the Act." The problem presented by this case is one of a type which occasionally confronts <ORG> of applying an enactment to circumstances not within the contemplation of the Legislature. The learned Editors of Edns. 10 and 11 of Mayne's Hindu Law, have expressed the opinion based on the language of Section 2 of the Act, that a widow is not disqualified by reason of her unchastity from succeeding to her husband's estate under Section 3 of the Act, and this opinion has been accepted as correct by a learned Judge of <ORG> in <CITATION> . (1941) Bom. 438. I am unable to agree with this interpretation of the Act.

10. In construing the Act, it must be remembered that it is not an enactment codifying the Hindu Law of Inheritance or even the topic of Hindu women's right to succession to property. The legislature is piecemeal and deals only with particular cases where, under the pre-existing law, a Hindu widow was excluded from succession to her husband's self scquired or separate property or interest in joint family property. The draftsman of the Act has assumed a knowledge of the existing state of Hindu law on the part of those who have to interpret it. The hardships which the Act was intended to remedy and the extent of legislative interference considered to be necessary for that purpose must be borne in mind in construing the enactment.

11. I might indicate at the outset what I consider to be the proper mode of approach to the construction of the Act. The <ORG> might well be presumed to have left the previous law unaltered except to the extent to which a departure therefrom has been specifically enacted. <CITATION> . (1938) Bom. 502 P. C., <ORG> observed, "A statute is prima facie to be considered as changing the law to no greater extent than its words or necessary intendment require." In Maxwell on Interpretation of Statutes, 9th Edn.

at pages 85 and 86 the rule of construction applicable to cases like the present is thus stated:

"It is in the last degree improbable that the <ORG> would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual, or their natural sense, would be to give them a meaning other than that which was really intended ...... In construing the words of the Act of Parliament we are justified in assuming that the <ORG> did not intend to go against the ordinary rules of law unless the language they have used obliges the <ORG> to come to the conclusion they did so intend."

It has been observed by <ORG> and this Court that though the Act conferred new rights of succession upon widows yet, in view of its far-reaching consequences on other branches of the Hindu law, the Act should be so construed, as to make no further inroad into the Hindu law than is warranted by its plain terms. In all other respects the <ORG> might be presumed to have left the Hindu law unaffected. <CITATION> , 1945-1-M. L. J. 108 at p. 116, <CITATION> , 1950-l-M. L. J. 399, <CITATION> , 1949-2 M. L. J. 536 and Seethamma v. <NAME>, 1950-2-M. L. J. 21. This is also the view of the learned Editors of Mayae's Hindu Law, 10th and 11th Edns. as regards the scope and effect of the Act.

12. It is a well settled rule of Hindu law--a rule that is in conformity with popular sentiment--that unchastity disqualifies a widow from succession to her husband's estate. The textual authorities on this point will be found assembled in the judgment in <NAME> v. <NAME>, 13 Beng. L. B. 1. The text requires that the widow must be chaste not only when the inheritance of her deceased husband opens but also thereafter. A text attributed to <NAME> says:

"The wife alone, being sonless and keeping the bed of her lord unsullied and leading a life of religious observance, may take his entire estate."

<NAME> also declares:

"Let the sonless widow, preserving unsullied the bed of her lord and bidding with her venerable protector, enjoy with moderation the (husband's) property until her death."

Other texts state that as "half the body" of her deceased husband the widow takes his property in default of male issue. The above texts show that not only that the sonless widow's right in her husband's property is a mere right of enjoyment but that the exercise of that right is dependent on her chastity. The use of the present participle form implies that chastity is imposed as a permanent condition of the widow's enjoyment of her husband's estate and that a violation of that condition would involve a forfeiture of the right. But European writers like <NAME> and English Judges who had to administer the Hindu law, in their concern for ensuring certainty of titles to property and their leanings against a divestiture of estates once vested, declared the law to be that a sonless widow who was chaste at the time of her husband's death inherited his estate and that a widow who had once inherited the estate of her husband was not liable to forfeit it by reason of her subsequent unchastity. The law was thus settled by <ORG> in <CITATION> , 5 Cal. 776 P. C. and this has been the accepted rule of Hindu law ever since. Unchastity disentitles a Hindu widow to maintenance. Maintenanee being a recurring right her continued chastity is a condition of her right to receive maintenance and she would forfeit her right by reason of her unchastity even though maintenance has been decreed to her by a Court. <NAME> v. Mt. Anandi, 57 ALL. 672 P. c., <CITATION> , 19 Mad. 6 and <CITATION> , 17 Mad. 392. If there has been a lapse from chastity the widow would be entitled only if she reforms her ways, and even then only to a starving maintenance, <NAME> v. <NAME>, 39 Mad. 658. The widows of coparceners in a joint Hindu family are in fact and in law members of the family with rights in or over the family property by way of maintenance. <NAME> v. <NAME>, 1 Mad. 69 at p. 81; <CITATION> . (1937) l Cal. 653 (P. c.) and <NAME> v. Commissioner of Income-tax, 66 Mad. 1 at pp. 4, 5. The requirement of chastity as a condition of their maintenance from the family property is therefore intelligible.

13. The Act was doubtless intended to "give better rights to women in respect of property" as stated in the preamble. But in what cases and to what extent ? The rights of a Hindu widow in relation to the property or interest of her husband, as they stood before the Act, and as they now stand, have to be considered. A Hindu widow Succeeded to the self-acquired property of her husband or the property held by him as the last surviving coparcener or as the holder of a share on partition if he happened to die without leaving sons (including in that term grandsons and great grandsons) The sonless widow was disqualified from inheriting her husband's separate or self acquired property if she was unchaste or living in adultery at the time the inheritance opened. The Act did not touch this class of cases and did not abrogate the rule of Hindu law as to disqualification of a widow arising out of her unchastity in such eases. If in the oases abovementioned the husband had left sons (in the comprehensive sense) the widow would before the Act have been excluded by the sons from inheriting her husband's estate and would only be entitled to maintenance for her life out of that estate. If her husband had died as a member of a joint Hindu family owning property, his interest in the family property ceased on his death. The widow would but for the Act, be excluded from succession to the undivided interest of her husband which passed by survivorship to the remaining coparceners. She would have had a right, however, to be maintained from the joint family property in the hands of the surviving coparceners, who might be her son or her husband's uncles, brothers, nephews or other agnatie relations. With reference to these two classes of cases above specified, Section 3 of the Act conferred new rights of succession on widows in supersession of the above mentioned rules of Hindu law. The rule that a widow succeeded only on failure of male issue was abrogated and she was given the same share as a son in her husband's separate or self acquired property. Where the husband died a member of an undivided Hindu family, his undivided interest in the family property passed to his widow even if he left male issues. The rule of survivorship was to this extent abrogated. The interest taken by a widow in her husband's estate by virtue of Section 3 of the Act was the same as the interest which she took in her husband's separate or self-acquired property in the absence of male issue, that is to say a Hindu widow's estate with all the incidents attached by law to that estate. The liability to forfeiture on remarriage would attach to that estate from its commencement and continue throughout the Widow's life. The condition of chastity however attaches to the estate only at its commencement. Though the Act conferred new rights of succession on Hindu widows in the two classes of cases referred to above, it did not purport to abrogate the pre-existing rule of Hindu law excluding an unchaste widow from succession to the property of her husband. It would be a queer state of law that a sonless widow has to be chaste in order to inherit her husband's separate or self acquired property but a widow need not be chaste if she happens to have sons or other coparceners of her husband in competition with whom she claims to take her husbands estate. This, however, would be the result of the argument of the appellant as regards the construction of Sections 2 and 3 of the Act.

14. The Act does not provide for the devolution of her interest after the widow's death in cases where she is given a right of inheritance by the Act. This is left to be determined by the general law. The right of maintenance possessed by a widow now enlarged by the Act into a right of succession, is not abrogated by the Act, but having regard to the principle of Hindu law that maintenance is awarded to a widow because of her exclusion from inheritance and a share on partition, it is to be inferred that the right of maintenance would not be available to the widow in such cases. I refer to these matters to show that the Act is not exhaustive oc self-contained, and must be fitted into the context of the existing Hindu law except to the extent forbidden by its plain terms. The Hindu law as to the grounds of axclusion from inheritance has been considerably modified by Hindu Inheritance (Removal of Disabilities) Act , 1928. But even after this Act congential idiocy or lunacy is a ground of exclusion from inheritance. Unchastity is a ground of exclusion of Hindu widows from inheritance to their husband's estate has not been removed by that Act which removed many other grounds of disqualification imposed by Hindu law. Is it to be said that the disqualification from inheritance based on congenital idiocy or lunacy, which has not been removed by the Act of 1928, has now been removed by the Act not under consideration, not directly but inferentially? This is, however, what the appellant's argument amounts to. A murderer is disqualified from succeeding to the estate of the person murdered on grounds of public policy. <NAME> v. <NAME>, 48 Bom. 569 at p. 576 (P. C.). Is it to be said that this disqualification attaches only to a sonless widow who murders her husband and claims to succeed to his separate or self-acquired property, and not to a widow who claims her husband's estate in competition with her sons or other coparceners of her husband? The Caste Disabilities Removal Act (XXI  of 1850) set aside the provisions of Hindu law which penalised renunciation of religion or exclusion from caste. But it wag held that the Act did not get rid of any conditions or restrictions to which the converts were originally subject under the Hindu law <CITATION> , 19 Cal. 289 (F. B.) and <CITATION> , 44 Mad. 891. For instance, this enactment would not remove the disqualification based on the widow's unchastity imposed by the Hindu law though it removed the disqualification arising from apostacy. <CITATION> , 5 Cal. 776 (P. C.) and <NAME> v. <NAME>, <NAME>, 32 Cal. 871 at pp. 873 4. That the <ORG> did not take the view that adulterous conduct or unchastity in a married woman was a minor or negligible misdemeanour not affecting her rights to property ia clear from Section 2 , Hindu Married Women's Rights to Separate Residence and Maintenance Act 1946 which disentitles an unchaste wife to maintenance. I find it difficult to hold that the Act now in question has expressly or by necessary intendment done away with the personal disqualification like unchastity imposed by Hindu law on widows claiming to succeed to the estate of their deceased husband.

15. Reliance has been placed by the learned counsel on the language of Section 2 of the Act which runs thus:

"Notwithstanding any rule of Hindu law or custom to the contrary, the provisions of Section 3 shall apply when a Hindu dies intestate."

It is said that the disqualification of a Hindu widow to inherit her husband's estate arising from her unchastity is a rule of Hind law which stands abrogated as a result of Section 2 . I cannot agree. The "rule of Hindu law to the contrary,"

referred to in Section 2 is the rule of Hindu law excluding a widow from succession to her husband's estate if he had left a son, grandson or great grandson, or if he had died as a member of a joint Hindu family leaving his coparceners. It is this rule of Hindu law that was superseded by Section 3 of the Act. To this extent, but no further, Section 3 is contrary to and therefore, supersedes the rule of Hindu law. The significance of the words "to the contrary" following the words "Notwithstanding any rule of Hindu law" in Section 2 is that it is only such rules of Hindu law as are contrary to the provisions of Section 3 of the Act that stand abrogated. The disqualification of a Hindu widow from succession to her husband's estate based on her unchastity was not even touched upon by the Act, and there is nothing in 8. 3 prescribing a rule contrary to the well established rule of Hindu Law that the chastity of a widow is a condition precedent to her inheriting her husband's estate.

16. The object of the Act according to the preamble, was to give ' better rights to women" and not to confer rights on unchaste women. The object has been amply achieved by Section 3 which gives Hindu widows rights of succession to their husband's estate in supersession of the rules of Hindu law which in the circumstances specified in the section gave them a mere maintenance out of that estate. The family a pivotal institution extolled by <ORG> depended for its unsullied cohesiveness and continuity, upon the sanctity of marital relationship with its attendant obligation of chastity I consider it improbable that the <ORG> would have overthrown the well-established and fundamental principle of Hindu law founded in the deep rooted sentiments of the people that chastity is a condition precedent to a widow's right to inherit her husband's estate, without expressing its intention with irresistible clearness I also venture to think that it could not have been the intention of the Act to give a charter of unchastity to married women or to abrogate the inhibitions of a law designed to preserve the purity and sanctity of family life. Unless there is no reasonable way of escape I must decline to attribute to the legislature so wayward an intention.

17. For these reasons the second appeal fails and is dismissed with costs.

18. <NAME> have had the advantage of going through the judgments of my brother <NAME> and my Lord the Chief Justice. I unhesitatingly agree with their conclusions that the Hindu Women's Eights to Property Act (Act XVIII  of 1937) has not abrogated either expressly or impliedly the Hindu law rule that a wife who is unchaste cannot succeed to her husband's property, whether joint family property or self-acquired property and that the opinion to the contrary expressed by the learned authors of Mayne's Hindu Law (Edns. 10 and 11) and by a single Judge of <ORG> in <CITATION> . (1941) Bom. 488 is wrong and unwarranted.

19. Chastity is considered by all schools of Hindu law, and by all Hindus as Truth in Action, and this is a land where it is proclaimed that God is Truth and Truth is God. For the Hindus, chastity in a wife is the first thing required, all other qualities paling into insignificance beside it. The Vedas say:

"<NAME>" (She .........the wife.........is born as half of the self.) In the hoary past <NAME> leaped across death with chastity as her sole armour and shield, and got back the life of her husband, <NAME>, from <NAME> who had to yield her husbund's body, the submerged half of the wand of life of the couple, when it was pulled by her, his half standing out of the waters of death. Only in the background of this thrilling tale can we understand the lawgiver <NAME>'s words:

"Amnaye Smriti tantre Cha Lekachare cha sooribhi Sareerardham Smrita Jaya Punyapunyaphala Sama Yasya noparate bharya dehardham tasya jeevati Jeevatyardhasareerartham Kathamanyah Samapnuyat."

(In the Vedas and Smritis and popular usage, the wife is declared to be half the body of her husband and to be sharing equally the fruits of her husband's good and bad acts. Of him whose wife is not dead, half the body survives. When half his body survives, how can any one else inherit his property?)

20. <NAME> expressly says that only the sonless widow who keeps the bed of her lord unsullied is entitled to her husband's property. <NAME> also expressly says that she must be chaste (Yasyadavyab icharinee) if she is to succeed to her husband's properties. This idea of an unchaste wife's being disqualified to inherit her husband's property was taken for granted so much so that several law-givers, like <NAME>, <NAME> and <NAME>, often omit it as urderstood. Thus, <NAME> says:" Patneeduhitaraschaiva Pitaram Bhratarastatha" (the wife, the daughter, the parents and the brothers succeed to the property of a sonless man). <NAME> says: "Anapatyasya Prameetasya Dhanam Patnyabhigami'' (the wife takes the property of her sonless husband). And <NAME> says: "Bharya Sutaviheenasya Purushasya Mritasyatu" (the wife takes the property of her sonless husband.) By such omission they do not intend to say that the disqualification of unchastity is removed. For it is the very same <NAME> who says:

"Vrateenavasadirata Brahmacharya Vyavasthita Dharmadanarata nityam aputrapai divam Vrajet."

(Performing religious ceremonies and observing fasts, chaste, virtuous, and always making gifts for the benefit of her husband's soul, even a childless widow goes to heaven.)

21. That the Hindus of South India (the widow in this second appeal comes from Trichinopoly district) did not attach less importance to chastity in a wife is clear from the following verses from the Kural of Sage Tiruvalluvar, the authoritative book of Dharma of the South:

"Is there anything greater than a wife with the armour and shield of chastity? She worships no other God than her husband. Verily, at her bidding the rain will fall. Her chastity is her armour and her shield. A home with a chaste wife lacks nothing. If a wife lacks chastity, the home is doomed."

So, the North and South, East and West in Hindu India, did not differ in the least on this vital point. And this was only natural, seeing that the patriarchal Hindu law, of Sapindas and Samanodhakas, depended on the chastity of the cornerstone of its edifice.

22. With this background of a fanatical insistence on chastity in a wife and its being an essential pre-requisite for inheriting the husband's property, it is obvious that its omission by <NAME>, <NAME> and <NAME> is only because of the disqualification being taken for granted. The omission is therefore similar to the omission of the disqualification in the Hindu Women's Eights to Property Act , 1937 by <ORG> which expressly mentions the disqualification in the Hindu Married Women's Eight to Separate Residence and Maintenance Act of 1946, nine years later showing that it never intended to abrogate it for the purposes of the 1937 Act which conferred far more valuable rights. India is one of the few civilized countries where adultery is still a criminal offence, showing the great importance placed on the chastity of wives by the people and their <ORG> and the feeling against men who interfere with it. The Hindu members of the <ORG>, who formed the vast majority in both the <ORG>, which passed the 1937 Act could never have intended to interfere with this deep-rooted feeling of the race. Nowhere in the Act or Preamble or objects do we have any whisper about removing this cornerstone of Hindu law about a wife's capacity to inherit. It is unthinkable that such a revolutionary change was made without any demand from the public or mention in the objects or preamble or body of the Act, and still more unthinkable that if the <ORG> deliberately did away with it in 1937 it would keep it in 1946 for a lesser right, for that would be swallowing a camel and straining at a gnat. The 1937 Act was intended only to amend the Hindu law to give better rights to women in respect of property, and not to take away any established disability, like congenital idiocy, congenital lunacy, living in adultery, murdering the husband, etc., and the phrase "notwithstanding any rule of Hindu law or custom to the contrary" in Section 2 must be read as meaning only notwithstanding any rule of Hindu law or custom to the contrary of what Section 8 says, and not as abrogating all disqualifications, especially when the Act never mentioned such an object or intention at all.

23. Nor can the argument that the 1937 Act is a self-contained Act and therefore effect must be given to Section 3 despite all pre existing disqualifications under Hindu law be accepted. It is only a piecemeal legislation regarding a small corner of Hindu law. It is not a codifying Act, like the Hindu Code now before <ORG>, nor even a general amendment of the Hindu law of Inheritance. <NAME> has said in <CITATION> , 1945-1 M. L. J. 108 (P. C.) at p. 116 :

"But it must be remembered that the Act was not a codifying Act or even a genera] amendment of the Hindu Law of Inheritance. It will help us to ascertain the precise scope of the Act if we can ascertain the defects which it set out to remedy,"

Even the learned authors of Mayne's Hindu Law, Edns. 10 and 11 are well aware of this. They say:

"Where the provisions of the Act are clear, effect of course, must be given to them. But the <ORG> may well be presumed to have left Hindu law unaltered in other respects. The Act must therefore be so construed as not to create a greater departure from Hindu law than it necessarily implies."

In holding that the disqualification of chastity was abrogated, they overlooked their own observations quoted above and construed the Act so as to create a greater departure from Hindu law than it necessarily implies. The well known rules of construction given in <CITATION> . (1938) Bom. 502 (P. C.) and <NAME> v. <NAME>, 48 Bom. 569 (P. C.) and by acknowledged authorities like Maxwell on Interpretation of Statutes, were ignored by them in arriving at their conclusion. They also observed, rather illogically, that a murderous wife could not inherit as public policy retained that disqualification. There is nothing against public policy in retaining the disqualification of unchastity for a wife seeking to inherit her husband's property. The various anomalies pointed out by <NAME>, if this disqualification is taken, as removed by implication by the 1937 Act, also show the erroneous nature of such a conclusion.

24. It was urged that commonsense requires the removal of the disqualification as there is no divesting of the estate from a widow who was chaste when she inherited it and began to live in adultery later on. I cannot agree. This rule of law is only the result of the application of English rules of fixity of property rights and a desire not to divest what has vested. The rule need not be extended further in the name of commonsense. Often, an unsuitable marriage which is only contemplated will be prevented by a <ORG> by issuing an injunction, but, once it is celebrated a <ORG> will be slow to annul it. So, this will be a case falling within <NAME>'s famous rule : "A hundred texts cannot annul a settled fact". In other words, it is only a rule of prudence recognising a fait accompli and cannot be applied before the fact occurs.

25. Nor do justice, equity and good conscience require the abrogation of the disqualification.

There is nothing unjust in requiring chastity in a wife before she seeks to inherit her husband's property. It is only a quid pro quo. Nor is Equity offended by the disqualification. "He who seeks equity must do equity" is the well known rule of equity. A wife who seeks to inherit her husband's property should not be indulging in iniquitous conduct. Here, the widow <NAME> left her husband <NAME> and eloped with a paramour, <NAME>, and lived with him in adultery. <NAME> went and took her back, condoning her adultery. But, after a few days, she again left <NAME> and went back to <NAME> and lived with him in adultery in Kumbakonam till her husband <NAME>'s death. Neither equity nor good conscience can be invoked on behalf of such a wife for inheriting the property of her husband she had wronged so grievously.

26. For all these reasons I have no hesitation whatever in agreeing with the conclusions of <NAME>, and my Lord the Chief Justice. This second appeal must be dismissed with costs.


CASE NO.: Appeal (civil) 4908 of 2002 PETITIONER: M/s. D.L.F. Qutab Enclave Complex Educational Charitable Trust RESPONDENT: State of Haryana and Ors. DATE OF JUDGMENT: 17/02/2003 BENCH: <NAME> & <NAME> JUDGMENT:

J U D G M E N T WITH CIVIL APPEALS NOS. 4909, 4910 AND 4911 OF 2002 S.B. SINHA, J:

Interpretation of Section 3(3)(a)(iv) of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter called and referred to for the sake of brevity as 'the said Act') falls for consideration in these appeals which arise out of a judgment and order of <ORG> dated 7.3.2001 passed in C.W.P. No.7245 of 1997 filed by the appellant of Civil Appeal No. 4908 of 2002.

M/s. <ORG> Universal Ltd. (<ORG>) is a public limited company registered and incorporated under the Indian Companies Act . It purchased free-hold lands at Gurgaon in the State of Haryana for setting up a colony known as <ORG> Qutab Enclave Complex. It applied for and was granted licence in terms of the provisions of the said Act.

M/s. DLF Universal Limited and other group of companies created DLF Qutab Enclave Complex Educational Charitable <ORG> (<ORG>) wherefor 85 sites were earmarked for constructions of schools/ community buildings in the complexes. The said sites vested in the <ORG> by reason of a deed. The <ORG> entered into agreements of lease with <ORG>, Mr. <NAME>, <ORG>, <NAME> and <NAME> (hereinafter referred to as 'fourth parties').

Three of the lessees from the <ORG>, namely, <ORG>, <NAME> and <NAME> applied for approval and were granted building plans by the 2nd respondent herein.

On or about 9.2.1994 the 2nd Respondent issued a letter to the <ORG> directing it to ensure that no other fourth party right is created on community site, in respect whereof third party interest was created prior to 7.8.1991. The said cut off date was fixed purported to be on the basis of the resolution taken in a meeting held under the Chairmanship of the then Chief Minister of the State of Haryana wherein a resolution was adopted to the effect that no further third party right could be created. The State of Haryana by a letter dated 25.10.1994 issued instructions as regards transferring community sites to third and fourth parties and raising constructions thereupon which are broadly classified into three heads:

I. Where community sites are still in the ownership of the colonizers II. Sites where colonizers have created third party rights before 7.8.1991 III. Cases where the licensee has created fourth party right on community sites.

The said instructions were followed by another addenda in terms of a letter dated 13.2.1996 stating that the time schedule of three years for construction on community buildings would also apply to all sites where third and fourth party rights have been created before 7.8.1991 and in respect thereof, the remaining conditions of letter dated 25.10.1994 shall be applicable. The legality or validity of the directions contained in the said two letters dated 25.10.94 and 13.2.96 were the subject matter of the writ petition filed by <ORG> and <ORG> marked as Civil Writ Petition No. 7245 of 1997.

It appears that a proposal was mooted in the said proceeding as to whether the dispute between the parties could be amicably resolved and pursuant thereto or in furtherance thereof by an order dated 21.9.2001 the Trust was given an opportunity by <ORG> to obtain and file affidavits of the parties in whose favour licences had been granted for construction and running of the schools.

Allegedly, the respondents No. 1 and 2 pursuant to the observations made by <ORG> held meetings with all concerned an d found the said proposal to be acceptable.

Thereafter affidavits were filed by the concerned fourth parties stating that they would abide by the conditions of the licence issued in favour of <ORG> as also the rules and regulations and instructions issued by the First and Second Respondents. In the said affidavits it was further affirmed that schools would be built within the time specified by the Respondents.

<ORG> by an order dated 13.12.2000 recorded that the parties had nearly reached a consensus and draft agreement was directed to be put up for its consideration.

However, the learned Advocate General for the State of Haryana on or about 16.2.2001 appeared and stated before <ORG> that it was not possible for the State to accept the said proposal and requested that the Writ Petition be decided on merits.

The Writ Petition by reason of the impugned judgment was dismissed holding:

(i) The petitioner is a duplicate of the licensee. It has been created to fiddle with figures. A consuming avarice and not charity is the cause for its creation.

(ii) The Act and the Rules do not permit the licensee to transfer sites without the permission of the competent authority. The action of the respondents in refusing to recognize the transfers cannot be said to be illegal.

(iii) The impugned circulars are not arbitrary, illegal or unfair. These do not impinge upon the protection of Article 14 of the Constitution.

(iv) The failure of the <ORG> to act or the mere silence of the <ORG> cannot be a ground for the court to put its seal of approval on deeds which do not have the sanction of the Statute and the Rules.

Mr. <NAME>, the learned senior counsel appearing on behalf of appellant in Civil Appeal No. 4909 of 2002 would submit that the said Act, the Rules framed thereunder or the conditions of licence do not provide for imposition of any embargo on transfer of the lands, in question, to third parties by <ORG> and as such the impugned judgment is not sustainable. The learned counsel would contend that by reason of the said Act only grant of licence as regards regulation of user of land is contemplated and the restrictions imposed thereunder must be held to be operative qua the terms and conditions of licence and not qua the owners of the properties. Mr. <NAME> would urge that so long the user of the land conforms to the provisions of the Act, Rules or the terms and conditions of the licence, no restriction on exercise the right of the owner to transfer the land can be imposed having regard to absence of a statutory provision in relation thereto. He would argue that the question as to whether the <ORG> was an entity independent of <ORG> is wholly irrelevant or not inasmuch as even assuming that it is so, having regard to the terms and conditions of licence as the third parties and the fourth parties are claiming interest through the owner, they would also be bound thereby. In that view of the matter and particularly having regard to the fact that the fourth parties by way of affidavits had undertaken to abide by the terms and conditions of the licence granted pursuant to or in furtherance of the said Act and the Rules framed thereunder, the purport and object for which Town Planning Act has been enacted would not be violated. It was argued that conversely if it be held that the <ORG> was entitled to transfer those lands to the third parties, the profits accrued by reason of the transactions of the Charitable <ORG> lose relevance for a decision upon the validity of the refusal of the Government to sanction the building plans. The learned counsel would submit that having regard to the expression 'development works' meaning 'internal and external development works', used in the statute, no fetter on transfer of lands can be inferred, as long as lands reserved for construction of schools, hospitals, community centers etc. are used for the said purpose. By reason of the provision contained in Section 3(3) of the Act, it was submitted, the licensee was merely obligated to construct or get constructed schools, hospitals, community centers etc. and thus, in terms thereof no prohibition has been imposed as regard transfer thereof to an institution or an individual so as enable them to undertake construction of schools, hospitals and community centers at their own cost.

Drawing our attention to the instructions dated 9.2.1994 issued by the Director, <ORG> impugned in the writ petition, the learned counsel would submit that the same merely shows that an executive decision in relation thereto was taken which was not backed by any statute or statutory rule and as such the same should have been declared ultra vires by <ORG>.

Mr. <NAME>, the learned counsel appearing on behalf of the appellant in Civil Appeal No. 4908 submitted that in the facts and circumstances of this case <ORG> should not have made adverse comments as regard the functioning of the <ORG>.

The learned counsel appearing on behalf of the appellants in Civil Appeal No. 4910 and 4911 would inter alia submit that keeping in view the fact that the <ORG> issued advertisements which were published in various newspapers in the year 1991 declaring availability of educational sites in the colony in question, it cannot be said, that the respondents No. 1 and 2 were not in the know thereof. It was submitted that the appellants upon due enquiry satisfied themselves about the title of the <ORG> whereafter only they purchased the lands in question bona fide and for valuable considerations within the knowledge of the State of Haryana and as at no point of time the State of Haryana objected thereto, the purported impugned directions issued in the year 1994 and 1996 could not have given retrospective effect and retrospective operation with effect from 7.8.1991.

Mr. <NAME>, the learned counsel appearing on behalf of the Respondent Nos. 1 and 2 would, on the other hand, submit that although there does not exist any express bar on transfer of lands by the owners thereof by creating third party or fourth party interest, the same must be inferred having regard to the scheme of the said Act. The learned counsel would contend such a scheme would appear not only from the interpretation clauses of the Act but also from Section 7 thereof as also the rules framed thereunder and the licences granted pursuant thereto or in furtherance thereof. According to the learned counsel having regard to the scheme of the act, the <ORG> should apply the rule of purposive construction so as to hold that the licensee itself was bound to construct schools, hospitals, community centres etc. at its own cost. It was submitted that if the <ORG> can take over the lands without payment of any compensation, it must necessarily be held that it has also the concomitant right to keep control thereover which would include imposing restriction on transfer of the said land. The owner of the land by necessary implication, the learned counsel would urge, was not entitled to exercise any right over the property and its right to use the same was restricted to get constructions raised through a third party wherefor also it has itself to incur costs. Mr. <NAME> would contend that the extent of regulation can further be judged by the fact that a colonizer is not entitled to enter into a profitable venture, the reasonable profit being restricted to 15% by the <ORG> and thus in the event the owner could create third party and fourth party interests, the same would defeat the very purpose and object of town planning.

The said Act was enacted to regulate the use of land in order to prevent ill plant and haphazard urbanization in or around towns in the State of Haryana. It came into force with effect from 16th November, 1971 except Section 10 thereof which came into force on 30th January, 1975 when the State Act received the assent of the Governor of State of Haryana.

'Colony' has been defined in Section 2(c) of the said Act in the following terms:

"colony" means an area of land divided or proposed to be divided into plots or flats for residential, commercial or industrial purposes subject to certain restrictions specified therein."

Colonizer has been defined in Section 2(d) thereof which reads thus:

"(d) "colonizer" means an individual, company or association or body of individuals, whether incorporated or not, owning or acquiring or agreeing to own or acquire, whether by purchase or otherwise land for converting it into a colony and to whom a licence has been granted under this Act;"

"Development Works" in terms of Section 2(e) would mean internal and external development works.

"External Development works" and "internal development works" have been defined in Section 2(g) and 2(i) of the Act as under:

"(g) "external development works" include sewerage, drains, roads and electrical works which may have to be executed in the periphery of, or outside, a colony for the joint benefit of two or more colonies;

(i) "internal development works" means

(i) metalling of roads and paving of footpaths;

(ii) turfing and plantation with trees as open spaces;

(iii) street lighting;

(iv) adequate and wholesome water supply;

(v) sewers and drains both for storm and sullage water and necessary provision for their treatment and disposal; and

(vi) any other work that the Director may think necessary in the interest of proper development of a colony;

Interpretation clauses except Section 2(g) having regard to user of expression "means" can neither be construed liberally nor can be held to be exhaustive ones.

It is not in dispute that <ORG> is a colonizer. It is further not in dispute that licences had been granted to it for the construction of a colony. It also stands admitted that schools, hospitals, community centers and other community buildings were required to be constructed in the colony in terms of the licences granted under the Act.

Section 3 of the said Act provides for application for licence and grant thereof. Sub-section (2) of Section 3 clearly states that the Director before granting the licence may enquire into the title of the land as also capacity of the colonizer to develop a colony.

Such enquiry is also required to be made having regard to the plan regarding development works to be executed in a colony and in conformity with the development schemes of the colonies of the neighbouring areas.

In terms of sub-section (3) of Section 3 of the said Act, the Director upon arriving at a satisfaction as regard the requirements specified in Clause

(a) to (f) would grant licence subject to the licensee's furnishing a bank guarantee and giving an undertaking as specified in clause (a) thereof.

The relevant provision of Section 3(3) of the said Act reads thus: "(3) After the enquiry under sub-section (2), the Director, by an order in writing, shall

(a) grant a licence in the prescribed form, after the applicant has furnished to the Director a bank guarantee equal to twenty-five per cent of the estimated cost of development works as certified by the Director and has undertaken - -

(i) ..

(ii) ..

(iii) the responsibility for the maintenance and upkeep of all roads, open spaces, public park and public health services for a period of five years from the date of issue of the completion certificate unless earlier relieved of this responsibility and thereupon to transfer all such roads, open spaces, public parks and public health services free of cost to the Government or the local authority, as the case may be;

(iv) to construct at his own cost, or get constructed by any other institution or individual at its cost, schools, hospitals, community centers and other community buildings on the land; set apart for this purpose, or to transfer to the <ORG> at any time, if so desired by <ORG>, free of cost the land set apart for schools, hospitals, community centers and community buildings, in which case the <ORG> shall be at liberty to transfer such land to any person or institution as it may deem fit.

Section 7 prohibits advertisement and transfer of plots and reads as under:

"7. Prohibition to advertise and transfer plots. Save as prescribed in Section 9 , no person shall

(i) without obtaining a licence under Section 3 transfer or agree to transfer in any manner plots in colony or make an advertisement or receive any amount in respect thereof;

(ii) erect or re-erect any building in any colony in respect of which a licence under Section 3 has not been granted;

(iii) erect or re-erect any building other than for purpose of agriculture on the land sub-

divided for agriculture as defined in clause (aa) of section 2 of this Act."

The State of Haryana in exercise of its power under Section 24 of the said Act made the Haryana Development and Regulation of Urban Areas Rules, 1976 (hereinafter referred to as 'the Rules'). Rule 10 provides that the applicant for grant of a licence would be required to fulfil certain conditions laid down therefor. Rule 11 specifies the conditions required to be fulfilled by the applicant. Sub-rule (e) of Rule 11 is identically worded with Section 3(3)(a)(iv) of the Act.

Licence to a colonizer is granted in form LC-IV. Condition No. (b) of the licence again is in identical terms with Section 3(3)(a)(iv) of the said Act.

Although the object of the said Act is laudable but does it mean that with a view to achieve the same the regulatory provisions contained therein should be construed as a total prohibition on transfer of land not only in relation to those which are required for development works but also to schools, hospitals, community centers and other community buildings, is the core question involved in these appeals.

Construction of schools, hospitals and community centres and other community buildings do not come within the purview of the term 'development works'. They come within the purview of the term "Amenities". Only in relation to the development works the colonizer is bound to pay the development charges, carry out and complete development works. He has also the responsibility to maintain the same for a period of five years from the date of issue of the completion certification whereafter, the same is required to be handed over to the <ORG> or the local authority as the case may be, free of cost.

At the outset, we may notice that the cost of development works indisputably is to be raised from the plot holders, but as construction of schools, hospitals, community centres and other community buildings do not come within the purview of the term 'development works', the costs therefor are not to be borne by them.

The expression "Development Work" as noticed hereinbefore is not synonymous with "Amenity". The expression "Amenity" has been used only in proviso appended to Clause (v) of Section 3(3)(a) and Rule 2(b) of the Rules. Rules are subservient to the Act, although they may be read con- jointly with the Act, if any necessity arises therefor. Even Rule 5 specifies the obligation of the colonizer as regard providing for the development works. The expression "amenity" as defined in Rule 2(b) of the Rules is wider than "development works". No principle of construction of statute suggests that a wider expression used in the rule may be read in the Statute employing narrower expression. Even in the rule the said expressions have been used for different purposes. The licence, also does not postulate that all amenities must be provided by the colonizer at its own expense. If the terms 'Development Works' and 'Amenity' are treated as carrying the same meaning, the plot holders may be held to be bound to meet the costs for construction of schools, hospitals, community centres etc. The cost of construction in terms of the said provisions thereof is to be borne by <ORG> or its nominees.

Right of transfer of land is indisputably incidental to the right of ownership. Such a right can be curtailed or taken away only by reason of a statute. An embargo upon the owner of the land to transfer the same in the opinion of this Court should not be readily inferred. Section 3(3)(a)(iv) of the Act does not expressly impose any restriction. The same is merely a part of an undertaking. Assuming that a prohibition to transfer the land can be read therein by necessary implication, it is interesting to note that the consequence of violation of such undertaking has not been specified. In other words, if a transfer is made in violation of the undertaking, the statute does not provide that the same would be illegal or the transferee would not derive any title by reason thereof.

The right of a transferee, however, would be subject to the building laws or regulatory statute relating to user of the property. In terms of the said Act, in the event the <ORG>, takes over the plots it would be at liberty to transfer such land to any person or institution including a local authority as it may deem fit. Purpose of such a clause, therefore, is to ensure that schools, hospitals, community centres and other community buildings are established at the places reserved therefor in the sanction plan but there does not exist any embargo as regards the person or persons who would run and manage the same.

A regulatory act must be construed having regard to the purpose it seeks to achieve. <ORG> as a statutory authority cannot ask for something which is not contemplated under the Act. A statute relating to regulation of user of land must not be construed to be a limitation prohibiting transfer of land which does not affect its user.

The plan provides that schools, hospitals etc. would be located at particular sites. When that purpose is satisfied, the <ORG> in the name of interpretation would not make a further attempt to find out who did so.

It is not in dispute that respondent Nos. 1 and 2 have sought to impose such a ban specifically by reason of the impugned circulars issued in the years 1994 and 1996, which in unmistakable terms go to show that even according to them such a bar did not exist prior thereto. It is accepted that even the concerned respondents had recognised at least three transfers. If transfer of the sites reserved for construction of school was prohibited under the statute, it is axiomatic that in absence of any provision contained therein, the respondent could not exercise any power of regularizing such transaction. A transfer prohibited by a statute would be illegal and not irregular. Once it is held that such transfer would only be 'irregular' which can be cured, it would necessarily mean that there was no absolute statutory bar in relation thereto. The building plans which were submitted on various days in 1992 and onwards had been accepted and sanctioned. If it be held that such transfers by <ORG> were illegal, there was no occasion for the respondents No. 1 and 2 herein to pass the building plans keeping in view of the fact that transferee thereof did not acquire any title whatsoever. Such a right of transfer to third parties to raise construction having been accepted by the respondents No. 1 and 2 prior to 1994, it does not now lie in their mouth to contend that there existed a statutory bar. The primal question is as to whether by reason of an executive fiat, a right to transfer one's own property could be curtailed? The answer to the said question must be rendered in the negative.

Expropriatory statute, as is well known, must be strictly construed.

In terms of Section 3 of the Act, a colonizer has to construct schools, hospitals, community centres and community buildings at its own cost or to get the same constructed by any other institution at its cost and for the said purpose lands have to be set apart. However, in the event the same is not done within a reasonable time, the State would be at liberty to take over the lands and fulfil the said objects as specified in the sanctioned plan. The power of the <ORG> to take over the lands must be held to be restricted and would be applicable only in a case where community services had not been developed. In other words, where the community services had not been developed the question of acquisition thereof by the <ORG> would arise and not in any other situation.

<ORG> in our opinion, committed a manifest error in holding that despite the fact that the statute uses two different expressions as regards cost to be incurred for construction of schools, hospitals and community centres etc. the effect thereof would be the same. In case of licensee the words used are 'at his own cost' whereas in respect of the others, the words used are 'at its cost'. When different terminologies are used by the legislature it must be presumed that the same had been done consciously with a view to convey different meanings. Had the intention of the legislature been, as has been held by <ORG>, that the cost for such a construction has to be borne by the licensee irrespective of the fact as to whether it undertakes such constructions itself or get them constructed by its contractors, there was absolutely no reason as to why clearer terms could not be used by the legislature. The words 'at his own cost' refer to the licensee, whereas in the case of his nominee being either an institution or a person, as the case may be, the words 'at its cost' have been used. The expression "at his own cost" and "at its cost" must be held to have separate and distinct meaning. They are not meant to aim at the same person.

The words 'institution' or 'person' evidently do not refer to a building contractor as understood in ordinary parlance. It must be held to carry different meanings. Indisputably, any person can get constructions made on his own land either under his own supervision or through a contractor. For the purpose of raising constructions through a contractor, permission of the statutory authorities is not necessary. In that view of the matter, clearly the legislature did not contemplate that the words 'any other institution or individual' refer only to a building contractor for the purpose of construction of the buildings alone and for no other purpose.

It may be that the agreement is between <ORG> and the respondent No. 2 but the same would not mean that the transferees from the <ORG> would not be bound by the terms and conditions of the licence as the statutory obligations of the licensee would percolate down to its transferees as they would be claiming interest under the licensee. In terms of the provisions of the said Act, Rules and the condition of licence, the Director <ORG> as also the <ORG> of Haryana would be entitled to exercise control in terms of the statutory provisions over the subsequent transferees. Creation of third party or fourth party interest, it is axiomatic, would not by itself take away the right of control of the <ORG> and other regulatory measures which can be taken under the statute.

In other words, the liability of the colonizer in the matter of construction of schools, hospitals etc. would continue in the event, he or his transferees fail to comply the conditions of licence and he would be subjected to the consequences laid down therefor in Section 10 of the said Act.

The <ORG> in other words would continue to regulate the user for which the site had been earmarked and upon failure of the licensee or his transferees to comply with such statutory obligation, the <ORG> would be entitled to take over such land.

The question may be considered from another angle. A statutory obligation had been placed upon the colonizer. The right of colonizer to transfer the land would be subject to such obligation inasmuch as it cannot transfer a right higher than it has. The right to transfer the land shall carry with it the obligation of the owner thereof to use the land in a particular manner as laid down in the statute as also the terms of the licence. It is also pertinent to note that a draft rule was published on 13th December, 1991 in terms whereof a condition was imposed in condition (e) in the licence granted in form LC-IV to the following effect:

"No third party rights will be created without obtaining the prior permission of the Director"

The said Amendment itself goes to show that the legislature sought to remedy a mischief which was existing prior thereto. Such a step on the part of the State of Haryana is also a pointer to the fact that even according to it, prior permission therefor was not required.

Basic Rule of interpretation of Statute is that the <ORG> shall not go beyond the statute unless it is absolutely necessary so to do. Rule of 'purposive constructions' would be resorted to only when the statute to observe or when read literally it leads to manifest injustice or absurdity.

It may be true that 55% of the acquired lands were plottable but as to whether <ORG> has recouped its investments by transferring the plottable land to the plot holders is a question which, in our opinion, is irrelevant for the purpose of construction of statute. <ORG>, in our opinion, therefor, adopted a wrong approach.

It is also incorrect to contend that that sub clauses (iii) and (iv) of Section 3(3)(a) of the Act stand on a different footing. A bare perusal of the said provision would clearly show they are not. In terms of clause (iii), a colonizer is responsible to maintain and upkeep of all roads, open spaces, public parks and public health services for a period of five years from the date of issue of the completion certificate whereas in terms of clause (iv), a colonizer undertakes to construct schools, hospitals, community centers and other community buildings or get the same constructed by any other institution or individual. Sub-clauses (iii) and (iv) of Clause (a) of sub- section (3) of Section 3 of the said Act, thus, aim at different purposes.

We do not also agree with the submission of Mr. <NAME> to the effect that as regards development of community sites, the State acts as a parens patriae. The State Act have been enacted for regulation of user of land so that the development of a town may not haphazard. It seeks to achieve the purposes mentioned in the preamble and no other.

In these cases, we are not concerned with the question as to whether the provisions of the Transfer of Property Act are applicable in the State of Haryana or not. Ownership of land jurisprudentially involves a bundle of rights. One of such rights is the right to transfer. Such a right, being incidental to the right of ownership; having regard to Article 300A of the Constitution of India, cannot be taken away save by authority of law.

We may now consider the decisions whereupon Mr. <NAME> placed strong reliance.

In <NAME> Vs. <ORG> [(1990) 1 SCC 613] this Court was considering the provision of Bhopal Gas Leak Disaster (Processing of Claims) Act , 1985. The question which arose for consideration therein was as to whether the <ORG> has the requisite jurisdiction and power as a 'parent' to fight litigation for the victims so as to uphold their fundamental rights. A question as to whether the <ORG> Act is ultra vires the Constitution also arose for consideration. The Court with a view to uphold the constitutionality of the Act held that the Scheme of the Act suggests an obligation on the part of the <ORG>. The court, in the fact situation obtaining therein, took recourse to the principles of liberal interpretation holding: ".The freedom to search for 'the spirit of the Act' or the quantity of the mischief at which it is aimed (both synonymous for the intention of the <ORG>) opens up the possibility of liberal interpretation "that delicate and important branch of judicial power, the concession of which is dangerous, the denial ruinous". Given this freedom it is a rare opportunity though never to be misused and challenge for the judges to adopt and give meaning to the Act, articulate and inarticulate, and thus translate the intention of the <ORG> and fulfil the object of the Act. After all, the Act was passed to give relief to the victims who, it was thought, were unable to establish their own rights and fight for themselves. It is common knowledge that the victims were poor and impoverished. How could they survive the long ordeal of litigation and ultimate execution of the decree or the orders unless provisions be made for their sustenance and maintenance, especially when they have been deprived of the right to fight for these claims themselves? We, therefore, read the Act accordingly."

The said decision, therefore, was rendered in a completely different fact situation and is not applicable to the fact of the present case.

<CITATION> and two others [(1952) 3 SCR 683] this Court was considering the provisions of Preventive Detention Act. In that case the Court took recourse to literal meaning. It was held that the Court should not interpret an act in such manner which would defeat the provisions thereof whose meaning is quite plain.

No exception to the said ratio can be taken.

In The State of Punjab Vs. <NAME> and Another [(1953) 4 SCR 254] this Court was considering the constitutional validity of the provisions of Abducted Persons (Recovery and Restoration) Act in terms whereof police officers were entitled to take abducted person to the custody of the officer in charge of the camp. The construction of the terms 'arrest and detention' came up for consideration and in that situation it was held:

"<NAME> contends that such consideration should not weigh with the court in construing the Constitution. We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If, however, two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory."

In <NAME> Vs. <NAME> and Others [(1955) 2 SCR 457] an election dispute was the subject matter of the lis. The question which arose for consideration therein was as to whether the principles of natural justice had to be read in the proviso appended in the Section 99(1)(a) of the Act. Repelling such contention it was held:

"But it is a rule of interpretation well-established that, "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence". (Maxwell's Interpretation of Statutes, 10th Edition, page 229). Reading the proviso along with clause

(b) thereto, and construing it in its setting in the section, we are of opinion that notwithstanding the wideness of the language used, the proviso contemplates notice only to persons who are not parties to the petition."

<CITATION> [(1995) Supp. 3 SCC 81], the question which fell for consideration of this Court was as to whether <ORG> performs judicial functions that are ordinarily performed by courts under Section 9-A of the Act and in that context it was held to be a court. The said decision cannot be held to have any application in the instant case.

The said decisions having been rendered on the fact of the matters involved therein and cannot be held to have any application whatsoever in the instant case.

The question which now arises for consideration is as to whether clause (t) of the licence agreement can be read as a restriction of the right to transfer the community sites. Clause (t) of the licence agreement reads as under:

(a) That the owner shall drive maximum net profit @ 15% of the total cost of development of a colony after making provisions of statutory taxes. In case the net profit exceeds the 15% after completion of the project period, surplus amount shall either be deposited within two months in <ORG> by the owner or he shall spend this money on further amenities/ facilities in his colony for the benefit of the residents therein."

The cap on profit, in our opinion, is irrelevant for the purpose of construction as regards the right of colonizer to transfer the land. Clause (t) of the Licence, in other words, cannot be construed to put in an implied limitation of the owner of the land to transfer its land. It is for the State of Haryana to invoke the said clause if and when any occasion arises therefor.

Furthermore, having regard to the fact that the <ORG> had made its intention to transfer the lands known through advertisements in the widely circulated newspapers; offerees must be held to have exercised their 'due diligence' at the time of acquisition of interest in the plots and in that view of the matter such interest cannot be put in jeopardy unless it is found out without any difficulty whatsoever that the colonizer had no right to transfer the said land and the effect of such transfer would lead to illegality. The fourth parties are bona fide transferees for value and thus their right of claiming interest cannot be jeopardized by reason of executive instructions or otherwise particularly in absence of any pleadings by the respondents No. 1 and 2 to the effect that fraud has been practised by the colonizer or the parties colluded with one another to achieve an illegal purpose.

For the reasons aforementioned the impugned judgment cannot be sustained which is set aside accordingly.

Before parting, however, we may observe that in the event, it is found that the colonizer or the transferees had failed to discharge their obligations in terms of the said Act, Rules and conditions of licence, it would be open to the prescribed authorities to take such action against them as is permissible in law.

For the foregoing reasons, the appeals are allowed but in the fact and circumstances of the case, there shall be no order as to costs.

1. The <ORG> in a case of this nature is not concerned with the morality of law. It is concerned with its essence. The preamble of the act shows it is meant to regulate use of land in certain manner. It is not concerned with the ownership. The definition of 'owner' is an inclusive definition. It has to be construed liberally.

2. The expression "at his own cost" and "at its cost" must be held to have separate and distinct meaning. They are not meant to aim at the same person.

6. 1990 1 scc 613 at 692 The freedom to search for 'the spirit of the Act' or the quantity of the mischief at which it is aimed (both synonymous for the intention of the <ORG>) opens up the possibility of liberal interpretation "that delicate and important branch of judicial power, the concession of which is dangerous, the denial ruinous". Given this freedom it is a rare opportunity though never to be misused and challenge for the judges to adopt and give meaning the Act, articulate and inarticulate, and thus translate the intention of the <ORG> and fulfill the object of the Act. After all, the Act was passed to give relief to the victims who, it was thought, were unable to establish their own rights and fight for themselves. It is common knowledge that the victims were poor and impoverished. How could they survive the long ordeal of litigation and ultimate execution of the decree or the orders unless provisions be made for their sustenance and maintenance, especially when they have been deprived of the right to fight for these claims themselves ? We, therefore, read the Act accordingly.

1955 2 scr 457 at 464 But it is a rule of interpretation well-established that, "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence". (Maxwell's Interpretation of Statutes, 10th Edition, page 229). Reading the proviso along with clause (b) thereto, and construing it in its setting in the section, we are of opinion that notwithstanding the wideness of the language used, the proviso contemplates notice only to persons who are not parties to the petition.

1953 4 scr 254 at 264 <ORG> contends that such consideration should not weigh with the court in construing the Constitution. We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If, however, two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory.

CIVIL APPEAL NO. 4909 OF 2002 M/s. <ORG> Appellants Versus State of Haryana and Another Respondents. CIVIL APPEAL NO. 4910 OF 2002

<ORG> Appellants Versus M/s. <ORG> and Others Respondents.

CIVIL APPEAL NO. 4911 OF 2002 A.H. Handa and Others Appellants Versus M/s. DLF Universal Ltd. and Others Respondents.


<NAME>, J.

1. In view of the finding as to the nature of the discharge set up by the 1st defendant, the only question is, whether there is any objection to a suit by the plaintiff for his share. In the circumstances of the case, I think, there is no objection. As the plaintiff's partners refused to join as plaintiffs, the plaintiff did all he could when he made them defendants, and in view of their collusion with the 1st defendant, who contended that nothing was due to the partnership, the plaintiff was justified in confining the suit to his own share of, what he contended was due to, the partnership. The petition is dismissed with costs.

<NAME>, J.

2. I think the case is concluded by the findings of fact. The 2nd and 3rd defendants, acting in collusion with the 1st defendant and fraudulently, gave the 1st defendant a full discharge for the amount due to the partnership of which the plaintiff, and the 2nd, 3rd and 4th defendants were members. It also appears upon the evidence that the 1st defendant knew that the plaintiff was, as partner, entitled to a one-quarter share of the debt. That being so, the only question is, whether the plaintiff's suit, for his share of the debt, can be sustained, he having made his co-partners defendants in the action? No doubt the general rule is that one partner can give a valid discharge of a debt due to his partnership but that rule has no application, if the discharge so given is in fraud of the aggrieved partner and is the result of collusion between the partner giving a discharge and the debtor. To hold otherwise would be acting in contravention of every principle of honesty as pointed out in Piercy v. Fynney L.R. 12 Eq. 69 at p. 74 in a case, of which the facts were some what similar. Nor does Section 45 of the Contract Act lay down any thing to the contrary. The cases relied on by the petitioner, viz., <NAME> v. Manni Ram 1 A. 297, and <CITATION> 17 M. 12, have no relevant bearing on the present question. This petition must be dismissed with costs.