ivil Appeal No 2378 of 1977
804 From the Judgment dated 321977 of the Gujarat High Court in Special Civil Application No 551 of 1972
B Datta LB Kolekar Ms Chetna Anand and PH Parekh NP for the Appellant
SK Kholakia RB Haribhakti and PC Kapoor NP for the Respondents
The Judgment of the Court was delivered by K RAMASWAMY J
The facts relevant to the controversy are as under The appellant had taken on lease about 55 years ago an extent of 2 acres 6 gunthas of agricultural lands situated in Akote village from Vishwas Rao
The Bombay Tenancy and Agricultural Lands Act 67 of 1948 for short the Act  applies to the lease
By operation of section 321 the appellant became a deemed purchaser from tillers  day ie April 1 1957
Section 32 G provides the procedure to determine purchase price
Since the landlord was insane the right to purchase was statutorily deferred under section 32 F till date of its cessation or one year after death
Under section 881b of the Act certain areas abutting Baroda Municipality were notified as being reserved for non agricultural or industrial purpose with effect from May 2 1958
By another notification published in the Gujarat State Gazette dated July 2 1964 certain lands including those situated in Akote and of the appellant s lease hold lands were reserved for industrial purpose
Consequently Ss 1 to 87 of the Act do not apply to the exempted area
While the landlord was continuing under disability his son Vasant Rao sold the land to the respondent under registered sale deed dated August 19 1964
By another notification under Section 881b published in the Gazette dated October 29 1964 the Government restricted the operation of the exemption to the area originally notified on May  1958 ie Ss 1 to 87 do not apply to the lands in question
This notification was rescinded by further notification published in the Gazette dated August 23 1976
The Bombay Tenancy and Agricultural LandsGujarat Amendment Act 36 of 1965 section 181 and 182 thereof introduced two provisos to section 881b of the Act which was published in the Gazette on December 29 1965 which are relevant for purpose of the case
Section 881b with amendments reads thus 1 Save as otherwise provided in sub section 2 805 nothing in the following provisions of this Act shall apply a to lands belonging to or held on lease form the Government aa to lands held or leased by a local authority b to any area which the State Government may from time to time by notification in th official Gazette specify as being reserved for non agricultural or industrial development Provided that if after a notification in respect of any area specified in the notification is issued under this clause whether before or after the commencement of the Bombay Tenancy and Agricultural Lands Gujarat Amendment Act 1965 the limits of the area so specified are enlarged on account of the addition of any other area thereto then merely by reason of such addition the reservation as made by the notification so issued shall not apply and shall be deemed never to have applied to the area so added notwithstanding anything to the contrary contained in any judgment or order of any court Tribunal or any other authority
Provided further that if any land in the area so added has been transferred or acquired after the issue of notification referred to in the first proviso but before the 9th day of October 1964 such transfer or acquisition of land shall have effect as if it were made in an area to which this clause applies
Vishwash Rao died in September 1965
The appellant became entitled to purchase the land on and from August 19 1966
He filed an application before Mamlatdar to fix the price
He fixed on enquiry at Rs492565 paise which was paid by the appellant
In the enquiry the respondent contended that he purchased the property from Vasantrao son of the landlord
By operation of second proviso to section 881b the lands stood exempted from operation of Ss 1 to 87 of the Act
So the Mamlatdar had no jurisdiction to decide the 806 price of the land
The appellant raised the contention that Vasantrao has no right to sell during the life time of the father the Karta of the Hindu Joint Family
The sale is invalid and does not bind him
He acquired statutory right of deemed purchaser and its exemption under section 881b does not divest his statutory right
The Mamlatdar accepted the appellant s contention and allowed the petition
On appeal to the Collector and revision to the Revenue Tribunal the decision was reversed
The Division Bench of the High Court by order dated February 3 1977 dismissed the writ petition
The appellant had leave of this Court by article 136
Thus this appeal
From these admitted facts the question emerges whether the operation of the second proviso to section 881b has retrospective effect depriving the appellant of the statutory right of deemed purchaser 
section 88 of the Act empowers the government to exempt certain other lands from the purview of Ss 1 to 87 of the Act
The State Government exercised their power from time to time under section 881b and issued notification and published in the official Gazette specifying certain areas as being reserved for non agricultural or industrial development ie urban development
Consequently the first proviso gets attracted which say that notwithstanding any judgment or order of any court tribunal or any other authority under the Act to the contrary once the notification was issued either before or after commencement of the Amendment Act reserving the area so added for non agricultural or industrial development ie expansion for urbanisation to the extent of the area covered under the first proviso the provisions of Ss 1 to 87 were not applied and shall be deemed never to have been applied
The second proviso which is material for the purpose of the case further postulates that Provided further that if any land in the are so added has been transferred or acquired after the issue of the notification referred to in the first proviso but before the 29th day of October 1964 such transfer or acquisition of the land shall have effect as if it was made to an area to which this clause applies
emphasis supplied What is the effect of the second proviso to the facts is the question Mr Dutta the learned counsel for the appellant contended that the first proviso has the effect of excluding Ss 1 to 87 of the Act only to those areas which were initially reserved for non agricultural or industrial development and has no application to the land added to it by a 807 subsequent notification though it would become part thereof
Any alienation in violation of the Act would not attract the operation of the second proviso
The Act is an agrarian reform which created a vested right in the tenant as a deemed purchaser with effect from Tillers  day which cannot be divested retrospectively
The proviso should be construed to inhere in the tenant the vested rights created under the Act
The Withdrawal of the notification dated Oct 29 1964 renders the right of the appellant uneffected
It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the filed which is covered by the main provision
It carves out an exception to the main provision to which it has been enacted by the proviso and to no other
The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment and its effect is to confine to that case
Where the language of the main enactment is explicit and unambiguous the proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms
The scope of the proviso therefore it to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule
It has to operate in the same field and it the language of the main enactment is clear the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment unless the words of the proviso are such that it is its necessary effect
The effect of the notification issued under section 881b was the subject of consideration in several decisions of this Court
In Sukharam  Bapusaheb Narayan Sanas  Anr
vs Manikchand Motichand Shah and Anr 196 SCR 59 Sinha CJ held that the provisions of section 88 are entirely prospective and apply to such lands as are described in clauses a to d of section 881 from which the Act came into operation namely December 28 1948 and are not a confiscatory in nature so as to take away from the tenant the status of a protected tenant already accrued to him
In Mohanlal Chunilal Kothari vs Tribhovan Haribhai Tamboli  a Constitution Bench speaking through Sinha CJ held that Clauses a to c of section 881 applies to things as they were on the date of the commencement of the Act of 1948 whereas clause d authorised the State Govt
to specify certain areas as being reserved for urban non agricultural or industrial development by notification in the official Gazette from 808 time to time
It was specifically provided in clauses a to c that the Act from its inception did not certain areas then identified whereas clause d has reference to the future
The State Govt could take out of the operation of the Act such areas as in its opinion should be reserved for urban non agricultural or industrial development
Clause d would come into operation only upon such a notification being issued by the State Govt
In Sukhram s case this Court never intended to lay down that the provisions of clause d are only prospective and have no retrospective operation
Unlike clauses a to c which are clearly prospective clause d has retrospective operation in the sense that it would apply to land which would be covered by the notification to be issued by the government from time to time so as to take that land out of the operation of the Act of 1948 granting the protection
emphasis supplied So far as clauses a to c are concerned the Act of 1948 would not apply at all to lands covered by them but that would not take away the rights covered by the Act of 1939 which was repealed by the Act of 1948
Therefore it was held that by operation of section 892 the rights acquired under the Act of 1939 would be available to the tenant
When a doubt was expressed of the correctness of the above views on reference another Constitution Bench in Sidram Narsappa Kamble vs Sholapur Borough Municipality  Anr   held at p 65 thus New there is no doubt that section 88 when it lays down inter alia that nothing in the foregoing provisions of the 1948 Act shall apply to lands held on lease from a local authority it is an express provision which takes out such leases from the purview of sections 1 to 87 of the 1948 Act
One of the provisions therefore which must be treated as non existent where lands given on lease by a local authority is in section 31 but the effect of the express provision contained in section 881a clearly is that section 31 must be treated as non existent so far as lands held on lease from a local authority are concerned and in effect therefore section 881a must be held to say that there will be no protection under the 1948 Act for protected tenants under the 1939 Act so far as lands held on lease from a local authority are concerned   809 the appellant cannot claim the benefit of section 31 nor can it be said that his interest as protected tenant is saved by section 892b
This in our opinion is a plain effect of the provisions contained in section 31 section 88 and section 892b of the 1948 Act
In Parvati  Ors
vs Fatehsinhrao Pratapsinhrao Gaekwad  the facts were that the Government issued a notification on May 21 1958 under section 881b of the 1948 Act reserving the land within the municipal limits of the city of Baroda for non agricultural and industrial development
The appellant s husband had taken possession of certain lands situated in the city of Baroda on lease from the respondent trustee
The respondent laid the suit against the appellant for recovery of arrears of rent
The defence was that the suit was not maintainable
Dealing with the effect of the notification issued under section 881b this Court held that the notification had retrospective operation and subject to certain exceptions provided in sub section 2 of section 88 all rights title obligations etc
Accrued or acquired under the said Act ceased to exist
Therefore section 892b was inapplicable to protect such right title or interest acquired under the Act except as provided in s 89A owing to express provision made in section 88 of the Act
Accordingly it was held that the Civil Court was legally competent to determine the reasonable rent payable by the tenant
In Navinchandra Ramanlal vs Kalidas Bhudarbai  Anr  this court was to consider a case that the notification under section 881b was issued on May 30 1959 by which date the tenant acquired the statutory right of a deemed purchaser with effect from April 1 1957
This Court held that the tenant cannot be divested of his deemed purchase by a subsequent notification issued thereunder
It would be seen that the effect of the second proviso was not considered therein
The above interpretation would equally apply to the interpretation of the notification issued under the proviso to section 881b adding to the area reserved for non agricultural or industrial development
Its effect is that notwithstanding any judgment or order of any court or Tribunal or any other authority the provisions of Ss 1 to 87 shall not apply and shall be deemed never to have applied to such added area as well
If any land in the newly added area has been transferred or acquired between the date of the notification issued under first proviso and October 9 1964 such transfer or acquisition of land shall have the effect as if it was made in an area to which the main part of the proviso and section 881b would apply
The necessary consequence would be that the provisions of sections 1 to 87 shall not apply and shall be 810 deemed never to have applied to such added area
It is implicit that such transfer or acquisition made to bring within the net of second proviso must be valid and bona fide one and not colourable fraudulent fictitious or nominal
The Legislature appears to relieve hardship to the bona fide purchasers
The title acquired by such transfer is not effected by the provisions of the Act
The Legislature advisedly used the words acquired or transferred 
The respondent s own case is that Vishwesh Rao Karta of the Hindu Joint Family was under disability due to lunacy
The tenant acquired statutory right as deemed purchaser under section 32
The Act by necessary implication divests the landlord of his right to alienate the land held by the tenant
The statutory right topurchase the land under section 32 as deemed purchaser was postponed by operation of section 32 F of the Act till the cessation of the disability or one year after the death of the landlord
In such situation can the son during the life time of the father has right to sell the same property to the respondents and whether such a sale made on August 19 1964 to the respondents was valid and binds the appellant
In Raghavachariar s Hindu Law Principles and Precedents Eighth Ed 1987 in section 275 at p 39 stated thus So long as the joint family remains undivided the senior member of the family is entitled to manage the family properties and the father and in his absence the next senior most male member of the family as its manager provided he is not incapacitated from acting as such by illness or other sufficient cause
The father s right to be the manager of the family is a survival of the patria potastas and he is in all cases naturally and in the case of minor sons necessarily the manager of the joint family property
In the absence of the father or if he resigns the management of the family property devolves upon the eldest male member of the family provided he is not wanting in the necessary capacity to manage it
Regarding the management of the Joint Family Property or business or other interests in a Hindu Joint Family the Karta of the Hindu Joint Family is a prima inter pares
The managership of the Joint Family Property goes to a person by birth and is regulated by seniority and the Karta or the Manager occupies a position superior to that of the other members
A junior member cannot therefore deal with the joint family property as Manager so long as the Karta is available except where the Karta relinquishes his right expressly or by necessary impli 811 cation or in the absence of the Manager in exceptional and extra ordinary circumstances such as distress or calamity effecting the whole family and for supporting the family or in the absence of the father whose whereabouts were not known or who was away in remote place due to compelling circumstances and that is return within the reasonable time was unlikely or not anticipated
No such circumstances are available here to attract the facts of the case
Vasantrao the vendor son of the Karta of the Hindu Joint Family per se has no right to sell the property in question as Manager so long as the father was alive
When father was under disability due to lunancy an order from the Court under Indian Lunancy Act IV of 1912 was to be obtained to manager the joint family property
No proceedings were taken under sections 39 43 and 45 of the Indian Lunacy Act to have the inquisition made by a competent District Court to declare him as insane and to have him appointed as Manager of the Joint Family
In PK Gobindan Nair  Ors
vs P Narayanan Nair  Ors 1912 23 MLJ 70617 Indian Cases 473 a division Bench of the Madras High Court held that a guardian cannot be appointed as Manager under the Guardian and Wards Act on an adjudication of Karnavan of an undivided Malabar Tarwad as a lunacy
In A Ramacharlu vs Archakan Ananthacharlu  Anr AIR 1955 AP 261 a division Bench consisting of Subba Rao CJ and Satyanarayana Raju J as they were considered the question of appointment of a son as the Manager of the Mitakshara family whose father was alleged to be a lunatic
Subba Rao CJ speaking for the Bench held that in view of the finding that the Karta though was mentally not sound but was capable to manage the property the application for appointment of a son as manager of the joint family property was not be ordered
Since Vasantrao did not obtain any order from the competent court under the Lunacy Act to have him appointed as Manager of the joint family to alienate the property the sale is per se illegal
The sale therefore appears to be to defeat the statutory right of the appellant
The rigour of the second proviso to section 881b is thus inapplicable
Thereby the right and interest as a deemed purchaser acquired by the appellant has not been effected by a subsequent notification issued under section 881b
The High Court therefore committed manifest error in holding that the appellant is not entitled to the relief
The appeal is accordingly allowed and the orders of the High court The Tribunal and District Collector are set aside and that of the Mamlatdar is confirmed but in the circumstances parties are directed to bear their own costs
YLal
Appeal Allowed


Summary:
The appellants forcibly took PW 2 to a lonely place on 1931983 made her to drink liquor and committed sexual assault on her
Thereafter they left her in a truck
While the said truck was unloading materials near a village the victim stealthily left the truck and concealed herself near a fence
PW 7 rescued her and took her to the house of PW 8 one of her distant relative from where her father PW 1 took her back and lodged the report at the police station
A case under sections 363 and 376 read with section 341IPC was registered against both the appellants
After completion of the investigation a charge sheet was submitted and the appellants were tried for the aforesaid offences
The appellants denied the prosecution allegations and pleaded that they were falsely implicated because of refusal by one of them to marry the girl and previous enmity with the other
The Assistant Sessions Judge rejected the defence pleas and found that the appellants committed rape on the victim without her consent and relying on section 114A of the Evidence Act convicted the appellants under section 3762g IPC and sentenced each of them to rigorous imprisonment for three 840 years
Since the victim was more than 16 years of age the appellants were acquitted of the charge under section 363 IPC On dismissal of their appeal against the conviction and sentence by the Addl
Session Judge the appellants filed a revision application before the High Court
The High Court duly considered and appraised the evidence and held that the appellants committed rape on PW 2 forcibly without her consent
Ultimately the appellants came in appeal by special leave to this Court
Dismissing the appeal this Court HELD 1
In cases of rape generally it is difficult to find any corroborative witnesses except the victim of the rape
However corroboration is not the sine que non for a conviction in a rape case
In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury
843D F Bharwada Bhoginbhai Hirjibhai vs State of Gujarat  and Rameshwar vs The State of Rajasthan   relied on
In the instant case the victim girl clearly stated in her evidence that she had been taken to a solitary house in the hills by appellant No 1 where she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other
Her uncontroverted testimony was accepted by all the courts and they concurrently found that she had been raped without her consent
844F G 3
Apart from the legal presumption that flows from the provisions of section 114A of the Evidence Act it is clearly evident in the instant case that the victim girl protested and struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on her part in such sexual intercourse
844H 845A 4
The High Court rightly held that it cannot be expected to re appraise the evidence as a court of appeal while exercising its revisional power under section 401 Cr
PC 845E F 841 State of Orissa vs Nakula Sahu and Ors   relied on
This Court hearing an appeal by special leave cannot consider and re appraise the evidence once again in the face of concurrent findings of facts arrived at by all the courts below
845F