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Mt. Janak Dulari Vs. Sri Gopal and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All706
AppellantMt. Janak Dulari
RespondentSri Gopal and ors.
Excerpt:
- - for these reasons we hold that the act 18 of 1937 is a perfectly valid act and that the plaintiff is entitled to rely on it in the present case as a perfectly valid act......18 of 1937). it was pointed out on behalf of the defendants that act 18 of 1937 was passed by the indian legislature before 1st april 1937, the date on which part 3, government of india act of 1935 came into force, and that the assent of the governor-general was given to this bill on 14th april 1937, after 1st april 1937. it was therefore argued for the defence that this act was not a law in force immediately before the commencement of part 3, government of india act and therefore that section 292 did not apply to act 18 of 1937. the court below accepted this argument and held that act 18 of 1937 was not valid and therefore dismissed the suit of the plaintiff. in this first appeal mr. banerji for the appellant has not based his argument on section 292, government of india act, 1935, but.....
Judgment:

Bennet, J.

1. This is a first appeal by Mt. Janak Dulari, the plaintiff, whose suit has been dismissed on a preliminary issue of law. Mt. Janak Dulari claimed that she was entitled to one quarter share of the family property which had been held by her husband who died on 26th July 1937. She claimed this alternatively, either on the ground that her husband died possessed of this one quarter share as his separate property, or that, if the family was not proved to have been divided, the plaintiff was under Act 18 of 1937 entitled to have this one-quarter share. The written statement pleaded that

Act 18 of 1937 was in no way valid and enforceable. It had not been validly passed by the Legislature. The Government or the Legislature had no power to enforce such an Act.

2. For some reason not stated no issue was framed on the question of whether the husband of the plaintiff died joint or separate. An issue was framed, No. 1:

Whether the Act 18 of 1937 was not validly passed by the Legislature and is unenforceable anc8 not binding upon defendants 1, 2 and 4.

3. In the Court below the plaintiff apparently relied on Section 292, Government of India Act, 1935, as applying to this Act, The Hindu Women's Eight to Property Act (Act 18 of 1937). It was pointed out on behalf of the defendants that Act 18 of 1937 was passed by the Indian Legislature before 1st April 1937, the date on which Part 3, Government of India Act of 1935 came into force, and that the assent of the Governor-General was given to this Bill on 14th April 1937, after 1st April 1937. It was therefore argued for the defence that this Act was not a law in force immediately before the commencement of Part 3, Government of India Act and therefore that Section 292 did not apply to Act 18 of 1937. The Court below accepted this argument and held that Act 18 of 1937 was not valid and therefore dismissed the suit of the plaintiff. In this first appeal Mr. Banerji for the appellant has not based his argument on Section 292, Government of India Act, 1935, but he has based it on the provisions of Section 317 of that Act and Schedule 9 to that Act. There is only a brief mention in the judgment of the Court below : 'Nor does Section 317 too of the Government of India Act 1935, help her in any way,' and there is no mention at all of Schedule 9 of that Act. Therefore the point now raised has not been considered by the Court below. Under the Government of India Act of 1919, Part 6, Section 63 onwards dealt with Indian legislation and the powers of the Indian Legislature. It is for this defence to show that those powers have terminated and that the Legislature did not have power to pass this Act 18 of 1937. It is true that Section 321, Government of India Act, 1935, states that the Government of India Act shall be repealed to the extent specified in Col. 3 of Schedule 10 and that Schedule 10 does provide for the repeal of the Act including Part 6. But there is another Section of the Government of India Act of 1935, Section 317, which provides as follows:

(1) The provisions of the Government of India Act set out, with amendments consequential on the provisions of this Act, in Schedule 9 to this Act (being certain of the provisions of that Act relating to the Governor-General, the Commander-in-Chief, the Governor-General's Executive Council and the Indian Legislature and provisions supplemental to those provisions) shall, subject to those amendments, continue to have effect notwithstanding the repeal of that Act by this Act:

Provided that nothing in the said provisions shall, affect the provisions of the last but one preceding Section.

4. Schedule 9 to which reference is made in Section 317(1), sets out the provisions for the Indian Legislature contained in Section 63 onwards of the Government of India Act of 1919. Apparently, the Section and Schedule 9 provide that the provisions of Part 6, Government of India Act, 1919 in regard to the Indian Legislature should continue to have effect notwithstanding the repeal of that Act by the Government of India Act of 1935. We are unable to read any other meaning into these provisions. The language is particularly clear and not open to any doubt; whatever in our opinion, and we cannot conceive that, Parliament in enacting Section 317 and Schedule 9, Government of India Act of 1935, could have used language that could be more clear and definite. Dr. Sen for the respondents has however advanced the argument that the Act 18 of 1937 was passed an a Bill by the Legislature before 1st April 1937, when the new Government of India Act, Part 3 came into force, and the assent of the Governor. General was given on 14th April 1937, after the new Government of India Act came into force. He argues therefore that Section 317 and Schedule 9 cannot apply to Act 18 of 1937. We asked him to explain what there was in the wording of Section 317 and Schedule 9 which would not apply to the present case of Act 18 of 1937 and he was quite unable to specify any wording in Section 317 or Schedule 9 which would not apply. We may note that the provisions in regard to Federal Legislature are contained in Part 2, Government of India Act 1935, and those provisions have not yet come into force as there has not yet been any proclamation bringing them into force under Section 320, Sub-section (1). There, fore no Federal legislation has as yet been brought into force as part of the law of India and under the provisions of the Government of India Act, Section 317 and Schedule 9 the law in regard to the Indian Legislature contained in the Government of India Act of 1919, has all along continued to be the law for British India. It was natural that the framers of the Act should provide for such a course as it was not intended to bring Part 2 of the Act into force until a proclamation was made under Section 320. It appears to us that the provisions made in Section 317 and Schedule 9 are intended to continue the validity of the functions of the Indian Legislature. Dr. Sen has not been able to show that there is any defect in the wording of Section 317 or in Schedule 9 which fails to carry out that obvious intention.

5. Some reference was made to the question of whether this enactment, Act 18 of 1937, was an Act when passed by the Legislature and before assent. The provisions of Section 68, Government of India Act of 1919, which appear continued in Schedule 9, Government of India Act 1935, are quite clear and the enactment is a Bill when passed by the Indian Legislature but does not become an Act until the assent is given by the Governor-General. For these reasons we hold that the Act 18 of 1937 is a perfectly valid Act and that the plaintiff is entitled to rely on it in the present case as a perfectly valid Act. We therefore allow this first appeal and we reverse the finding of the Court below on issue 1, and as the Court below has not disposed of the remaining issues we remand this suit for disposal by the Court below, on the remaining issues. As this plea of invalidity was taken by defendants 1, 2 and 3 we direct that they shall pay the costs of this appeal to the plaintiff-appellant. Dr. Sen for the respondents asked that this Bench should certify that the case involved a substantial question of law as to the interpretation of the Government of India Act or orders in Council made thereunder in accordance with the provisions of Section 205(1) for such certificates. As Dr. Sen has failed to show ad any justification in Section 317 or Schedule 9 for the argument which he put forward, we cannot say that this question was a substantial question of law and therefore we regret that we cannot grant the respondents the certificate under Section 205(1).


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