ivil Appeal No 1846 of 1974
From the Judgment and Order dated 2591972 of the Bombay High Court in Appeal No 512 of 1965
VN Ganpule and Mrs Urmila Sirur for the Appellant
VA Bobde Uday U Lalit and AG Ratnaparkhi for the Respondent
The Judgment of the Court was delivered by SHARMA J
This appeal by the plaintiff appellant is directed against the decision of the Bombay High Court dismissing her suit for possession of the properties de tailed in the plaint
The disputed properties belonged to a joint Hindu family governed by Mitakshara law of which one Bhiku and his son Balu were coparceners
Bhiku died on June 6 1942 leav ing behind his widow Parvati the defendant No 2 in the present suit and Balu who dies soon after his father s demise on July 24 1942
In November 1942 Balu s widow Lilabai gave birth to a posthumous daughter who is the present appellant
Sometime later Lilabai remarried and thereupon Parvati 466 adopted Vithal the first defendant in the present suit in the year 1949
After attaining majority appellant Ashabai filed the present suit for a decree for possession of the properties with mesne profits and a decree for money for Rs3000 as expenses of her marriage
She challenged the power of her grand mother to adopt the first defendant on the ground that her right to adopt was lost on the death of Balu leaving behind his widow Lilabai
The trial court accepted the defence case upheld the adoption of the defendant No 1 as valid and dismissed the suit
The plaintiff Ashabai challenged the decision by an appeal which was heard by the Extra Assistant Judge Poona who allowed the same and passed a decree for possession of the suit properties along with mesne profits
Now it was the turn of the defendants to question the decree of the first appellate court before the High Court under section 100 of the Code of Civil Procedure
After considering a number of Privy Council and Supreme Court decisions the High Court ruled that a Hindu widow s power to adopt is revived the moment there is nobody to continue the line and since Lilabai incapacitated herself in doing so by her remarriage the right of her mother in law to adopt a son to her husband revived
The adoption of the first defendant was thus found legal and valid
Accordingly the decree in favour of the plaintiff was set aside and her suit dismissed
The appellant then moved this Court under Article 136 of the Constitution and special leave has been granted
The case comes from Maharashtra where a Hindu widow may adopt even without any authority
The contention of the plaintiff is that on the death of Balu his mother Parvati lost this power which vested in Balu s widow Lilabai and on Lilabai s remarriage Parvati s power did not revive
The adoption of defendant No 1 was therefore illegal
Reli ance was placed on several decisions of the Bombay High Court including that in Ram Chandra vs Murlidhar In similar circumstances the Division Bench held that the mother s power to adopt a son was permanently extinguished on the death of her natural son leaving a widow
The High Court in the present case refused to follow the said decision on the ground that the same must be held to have been impliedly over ruled by the judgment of this Court in Gurunath vs Kamalabai  our view the High Court has not correctly appreciated the deci sion in Gurunath s case
The relevant facts in Gurunath vs Kamalabai may be briefly put thus
The disputed property belonged to Krishta rao who died leaving behind two widows Radhabai and Ganga bai and a son 467 Dattatraya
Dattatraya died in 1913 leaving behind his widow Sundarabai and a son Jagannath
Sundarabai died soon after the death of her husband and a year later Jagannath also died
Gangabai the junior widow of Krishtarao adopted Gurunath the appellant before this Court who filed a suit claiming certain rights as the adopted son of Krishtarao
One of the issues arising in the case related to the validi ty of Gurunath s adoption
A Bench of seven learned Judges of this Court examined several decisions of the Privy Coun cil including the judgment in Arnarendra Mansingh vs Sanatan Singh 1933 LR 60 IA 242 and said that the rule That the interposition of a grand son or the son s widow competent to continue the line by adoption brings the mother s power of adoption to an end was being followed for a very long time and has become a part of Hindu law
They also approved the observation of Chandavarkar J who delivered the judgment of the Full Bench of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao Bom
526 to the following effect Where a Hindu dies leaving a widow and a son and that son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption the power of the former widow is extinguished and can never afterwards be revived
 They also quoted with approval another part of the judgment of Chandavarkar J stating that when a son dies before attaining full legal competence and does not leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands
over that torch to another the mother can no longer take it
In view of these observations in the judgment in Gurunath s case there does not appear to be any scope for holding that on the remarriage of the son s widow the power of the son s mother to adopt revives
The matter does not stop here
Reliance was placed by the appellant on the decision of the Nagpur High Court in Bapuji vs Gangaram 1941 ILR Nagpur 178 where the facts were identical to those in the present appeal
The Nagpur High Court had held that the power of the mother revived on the remarriage of the son s widow
This Court discussed the Nagpur judgment at some length at pages 1148 and 1149 and disapproved it
This part of the judgment does not leave any room for doubt that this Court in Gurunath s case has affirmed the decisions of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao Bom
526 468 and Ram Chandra vs Murlidhar  as laying down the correct law and rejected the rule of law similar to the plea of the present respondent recognised by Nagpur High Court in identical facts and circumstances
We accordingly hold that on the death of Balu the responsibili ty for the continuance of the family line fell on his widow Lilabai by the power of adoption vesting in her and the power of Parvati to adopt was extinguished permanently and did not revive even on Lilabai s remarriage
Consequently the adoption of first defendant was invalid in the eye of law and he did not get any interest in the suit properties
Now remains the next question as to the relief which the plaintiff is entitled to get in this suit
As has been observed earlier the properties belonged to the joint family of which Bhiku was a coparcener
On his death in 1942 his wife Parvati got under section 32 of the Hindu Women s Rights to Property Act 1937 the same interest as Bhiku had in the joint family properties
If a partition had taken place Bhiku would have got half share in the properties which on his death devolved on Parvati
Parvati is still alive and is defending the claim of her grant daughter
She cannot therefore be deprived of her half share in the properties
The interest which initially devolved on Para vati however was the limited in nature known as Hindu Woman s estate
On the passing of the  she became full owner thereof
Likewise the remaining half share of Balu in the properties devolved on the appel lant on her mother s remarriage and she got a Hindu Woman s estate therein which ripened in full ownership under section 141 of the 
She is thus entitled to a decree for half share in the suit properties as prayed for by way of an alternative relief in the plaint
She has also asked for a decree for partition in case of a partial decree which she is entitled to get
The first appellate court had also granted a decree for mesne profits pendente lite and future which should be restored but only in respect of her half share
Accordingly an inquiry shall be made under Order XX Rule 12 CPC
Her claim for a money decree for Rs3000 was not allowed even by the first appellate court and stands finally rejected
In the result the decision of the High Court is set aside and the plaintiff s suit for half share in the suit properties with mesne profits as also for portion is de creed
The appeal is accordingly allowed in part but the parties are directed to bear their own costs throughout
RNJ Appeal allowed


Summary:
Sri Sukhjinder Singh has been under detention pursuant to the order dated 2851988 of the Government of Punjab Department of Home Affairs and Justice passed in exercise of the powers conferred by sub section 2 of Section 3 of the hereinafter referred to as the Act read with section 14A as inserted by National Security Amendment Act 1987 with a view to preventing him from indulging in activities prejudicial to the security of the State and maintenance of public order and interference with the efforts of the Govt
in coping with the terrorists and disruptive activities
The detenu s son Sukhpal Singh filed Criminal Writ Petition No 1393 of 1988 in the High Court praying inter alia for a writ of Habeas Corpus quashing the detention order production of the detenu in the Court on the date of hearing directing the authorities to arrange for the presence of the detenu before the Advisory Board at Chandi garh and also to make arrangements  pay for the expenses required to be incurred for arranging the presence of dete nu s witnesses to be produced before the Board at Agartala and also his relatives and counsel so as to effectively assist him in regard to the presenting of his case before the Board
The High Court by order order 27988 dismissed the Writ Petition but ordered that the petitioner would approach the Advisory Board at Chandigarh with the request for allowing the detenu to produce evidence before it at Agartala and in case his prayer was granted by the Board the expenses for taking those witnesses to Agartala would be borne by the respondent state
Sukhpal Singh later moved Criminal Writ Petition No 2365 of 1988 in the High Court of Punjab  Haryana for quashing the detention 421 order contending inter alia that the order of detention was passed on 28588 in a cursory and routine manner without application of mind much less with subjective satisfaction and there was an inordinate delay of two months in consider ation of detenu s representation and that the detention was confirmed without affording the detenu any chance of appear ing and producing witnesses before the Advisory Board in terms of orders of the High Court dated 27988 made in Crl
Writ Petition No 1393 of 1988
The High Court upheld the above contention of the peti tioner and accordingly quashed the order of detention and ordered the detenu to be set at liberty for with unless required in any other case
Aggrieved by this order the State has come up before this Court by way of special leave
The Court while dismiss ing the appeal and directing the detenu to be set at liberty forthwith as ordered by the High Court
HELD A clear distinction has to be drawn between pre ventive detention in which anticipatory and precautionary action is taken to prevent the recurrence of apprehended events and punitive detention under which the action is taken after the event has already happened
It is true that the ordinary criminal process of trial is not to be circum vented and short circuited by apparently handy and easier resort to preventive detention
But the possibility of launching a criminal proSecution cannot be said to be an absolute bar to an order of preventive detention
Nor would it be correct to say that if such possibility is not present in the mind of the detaining authority the order of deten tion would necessarily be bad
426C E It is true that the Advisory Board is not a judicial body
It is charged with the responsibility of advising the Executive Government
But when it advises in favour of the detenu namely that there was no sufficient cause for deten tion it would be binding upon the Govt under section 122 of the Act to release the detenu forthwith
439F Expressing inability to appear once could not have been treated as the detenu s not desiring to be heard under section 22 of the Act
In fact he desired to be heard and to produce his witnesses
439G The protection of personal liberty is largely through insistence on observance of the mandatory procedure
In cases of preventive detention observance of procedure has been the bastion against wanton 422 assaults on personal liberty over the years
440E One of the foremost and fundamental right guaranteed in the Constitution is personal liberty and one cannot be deprived of it except by the procedure prescribed by law
Libertas Inestimabilis res est
Liberty is an inestimable thing above price
Libertus omnibus rebus favourabilier est
Liberty is more favoured than all things anything
It would be ironic if in the name of social security we would sanction the subversion of this liberty
440F G The increasing need for ensuring public safety and security in the State of Punjab and the Union Territory of Chandigarh has been reflected in the recent successive amendments of the 
442F As a result of these amendments applicable to the State of Punjab and the Union Territory of Chandigarh it is found on the one hand addition to the grounds of detention and on the other extension of period during which a person could be detained without obtaining the opinion of the Advisory Board
There is however no amendment as to the safeguards provided under Article 22 and sections 9 10 and 11 of the Act
Indeed there could be no such amendment
444C D Lex uno ore omnes alloguitur
Law addresses all with one mouth or voice
Quotaiens dubia interpretatio libertatis est secundum libertatem respondentum erit Whenever there is a doubt between liberty and bondage the decision must be in favour of liberty
444E Fazal Ghosi vs State of UP  Ors AIR 1987 SC 18771987 3 SCR 471 Rex vs Halliday Ex parte Zadig   Ujagar Singh vs State of Punjab  SCR 756 Haradhan Saha vs The State of West Bengal Maharashtra  Ors
  1 SCR 1028 Ashok Kumar vs Delhi Administration  Ors    Giani Bakshish Singh vs Government of India  Ors   RajKumar Singh vs State of Bihar  Ors    Jayanarayan Sukul vs State of West Bengal   Frances Coralie Muffin vs WC Khambra  Ors   State of Orissa  Anr
vs Manilal Singha nia  Anr  AK Gopalan vs The State of Madras   John Martin vs State of West Bengal   Khudiram Das vs The State of West Bengal  Ors   Saleh Mohammed 423 vs Union of India  Ors  Kamla Kanyalal Khushalani vs State of Maharashtra  Anr   Rattan Singh vs State of Punjab  Ors   YoussufAbbas vs Union of India  Ors  Asha Keshavrao Bhosale vs Union India  Anr   Aslam Ahmed Zahire Ahmed Shaik vs Union of India  Ors   TA Abdul Rahman vs State of Kerala  Ors JT  Rama Dhondu Borade vs Shri VK Saraf Commissioner of Police  Ors 1989 1 Scale Vol
1 22 Dr RK Bhardwaj vs The State of Delhi  Ors   DS Roy vs State of West Bengal  PD Deorah vs The District Magistrate Kamrup  Ors
   NP Umrao vs BB Gujral  Ors  at p 321 VC Jawantraj Jain vs Shri Pradhan  Ors   Bal Chand Choraria vs Union of India  Ors   Smt
Kavita vs The State of Maharashtra  Ors   AK Roy vs Union of India 1982 Vol
88 Crl
LJ 340 and State of Rajasthan vs Shamsher Singh 1985 Suppl
I SCR 83 referred to