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TMI Blog1941 (4) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... roperly so called to this reference, it was not considered necessary or useful to serve any parties with notice of the reference. But as the Court desired to hear the various possible viewpoints presented and argued, it suggested to the Advocate-General of India the desirability of inviting brief statements from the Advocates-General of the Provinces, containing the point of view that each of them wished to present and argu-ments in support thereof. The Advocate-General of India has filed a statement on behalf of the Government of India and he has also placed on the file statements from the Advocates-General of seven of the Provinces. As the Court further intimated that besides hearing the Advocate-General of India it would be prepared to hear two more counsel, the Advocates-General of Madras and the United Provinces appeared and took part in the argument. The Court is indebted to all the learned counsel for the assistance which they have afforded it. 3. The doubts which have led to the reference arise from the fact that the bill which became the Hindu Women's Rights to Property Act, 1937 (Act 18 of 1937), which for convenience is hereafter referred to as Act 18, was passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Act 11 of 1938) call for no separate discussion, since it does not enact any independent provisions, but merely makes some amendments in the Act of the previous year. 4. Of the questions referred, question (2) will in effect be answered by the views to be expressed in the course of the discussion of question (1); and it is therefore not separately considered. In the statements filed before the bearing and in the course of the arguments, the following contentions were raised with respect to question (1): (i) That Act No. 18 was never properly passed at all, in view of the stage at which it was taken up and dealt with by the Council of State and the Governor. General. (ii) That the Act was in any view ultra vires the Indian Legislature, so far as its operation might affect agricultural land in the Governors' Provinces. (iii) That if the Act should be held to be only in part ultra vires, it would not on the authorities be permissible to sever the good from the bad, so as to allow it at any rate to operate in respect of property other than agricultural land in the Governors' Provinces. (iv) That even if it were permissible to uphold the Act to a limited extent, the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution Act. Among the provisions thus continued are the provisions of the earlier Act relating to the Indian Legislature; and it is clear that the Indian Legislature which was in existence immediately before the coming into force of Part 3 of the Act was continued in existence after that date, and was in all respects the same Legislature, though its legislative powers were no longer as extensive as they had previously been. 6. One of the provisions included in Schedule 9 is that a bill shall not be deemed to have been passed by the Indian Legislature unless it has been agreed to by both Chambers either without amendment or with such amendments only as may be agreed to by both Chambers. It is common ground that the Hindu Women's Rights to Property Bill was agreed to without amendment by both Chambers of the Indian Legislature, and as soon as it received the Governor-General's assent, it became an Act (Schedule 9, para. 68 (2)). Not until then had this or any other Court jurisdiction to determine whether it was a valid piece of legislation or not. It may sometimes become necessary for a Court to inquire into the proceedings of a Legislature, for the purpose of deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, then clearly the Act went beyond the powers of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to construe the word "property" as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate; that is to say, property other than agricultural land. On this view of the matter, the so-called question of severability, on which a number of Dominion decisions, as well as decisions of the Judicial Committee, were cited in the course of the argument does not arise. The Court does not seek to divide the Act into two parts, viz., the part which the Legislature was competent, and the part which it was incompetent, to enact. It holds that, on the true construction of the Act and especially of the word "property" as used in it, no part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years. 10. The appellant, who had during the'life-time of his wife married another woman in the United States of America and had in a New South Wales Court been convicted of bigamy under the provisions of this law, contended that the Court had had no jurisdiction to try him for the alleged offence, since the Act under which he was tried, according to its true construction, was limited to offences committed within the jurisdiction of the local Legislature by persons subject at the time of the offence to its jurisdiction; and that upon any other construction the Act would be ultra vires. Lord Halsbury, delivering the judgment of the Judicial Committee, observed that if their Lordships construed the statute as it stood and upon the bare words, any person, married to any other person, who married a second time anywhere in the habitable globe, was amenable to the criminal jurisdiction of New South Wales, if he could be caught in that Colony. 'That seems to their Lordships,' he continued, to be an imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple of construction that Acts of a sovereign legislature, and indeed of subordinate Legislatures such as a municipal authority, should, if possible, receive such an interpretation as will make them operative and not inoperative.... It is a settled rule in the interpretation of statutes that general words will be taken to have been used in the wider or more restricted sense according to the general scope and object of the enactment (at pp. 119, 120). 14. There is this also to be said. The underlying purpose of Act 18 is plainly stated in its Preamble: "Whereas it is expedient to amend the Hindu law to give better rights to women in respect of property." It is therefore a remedial Act seeking to remove or to mitigate what the Legislature presumably regarded as a mischief; and as such it ought to receive a beneficial interpretation: If the enactment be manisfestly intended to be remedial, it must be so construed as to give the most complete remedy which the phraseology will permit: [Gover's Case, Coal Economising Gas. Co., In re. (1875) 1 Ch D 182 at page 198]. 15. It may well be that the Indian Legislature, if it had been able to pass the Act while it still possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (1925) 35 CLR 422. If the Act is to be upheld, it must remain, even when a narrower meaning is given to the general words, "an Act which is complete, intelligible and valid and which can be executed by itself;" Wynes: Legislative and| Executive Powers in Australia 51, citing Presser v. Illinois (1886) 116 US 252. These words appear to the Court apt to describe Act 18, if construed as the Court has thought right to construe it, that is to say, even when a narrower meaning is given to the general words which the Legislature has used. 17. It remains to deal with the fourth contention, that is, with regard to the import of the term "succession" in entry No. 7 of List III and of the word "devolution" in entry No. 21 of List II. The question raised is whether these words which prima facie imply the passing of an interest from one person to another can include the change which takes place under the Mitakshara law in the extent of the interest possessed by the male members of a joint Hindu family in the joint property when one of these members dies. Borrowing a term from the English law, this change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mortgagor. According to several decisions of the Madras High Court, the alienation by a member of his undivided share does not disrupt the joint status and yet the rights of the purchaser have been held not to be defeated by the death of the alienor, though no suit for partition be instituted during his life-time. Results of this kind are wholly inconsistent with the theory of extinction or lapse, and even more so when the deceased happens to be the father of the survivors. It was recognized as early as Nauoml Babuasin v. Modhun Mohan ('86) 13 Cal 21 that the application of the theory of the son's "pious obligation" to pay the father's debts has practically resulted in the pro tanto extinction of the son's independent rights in the family property; and Section 53, Civil P.C., provided that to the extent to which joint family property remained liable for the father's personal debts even after his death, it "shall be deemed to be property which has come to the hands of the son as his legal representative. 19. It is equally important to remember that neither in their ordinary grammatical significance nor by a long continued use in technical sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1921 Mad 168. In any event, the two enactments not being in pari materia, such observations as may be found in these cases In support of the limited interpretation of the word "succession" cannot be held to be sufficient to override the cumulative effect of the considerations referred to above. In one or two instances, eminent writers have employed language suggesting that "devolution" may comprehend cases of survivorship but not the word "succession" (see Mayne's Hindu Law, para. 270), but it is difficult to find any basis for this distinction. "Devolution" may be wider in scope than "succession" in the sense that the former is not restricted to the result of a "death" (see Order 22, Rule 10, Civil P.C.), but that is immaterial for the present purpose; and, as already stated, eminent Judges have used both the terms in a sense that will include the operation of the principle of survivorship. 21. The Court is therefore of opinion that the answers to the questions comprised in the special reference are as follows: (1) The Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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