dedol-hf/india-case-legal-rag huggingface dataset:
Hindus  and  Muslims"  is of a very general  nature  and  an
inference of this kind may easily have been drawn on materi-
al  which  would not warrant such an  inference.  No  reason
whatsoever has been stated in the affidavit of the  District
Magistrate for not disclosing the words used by the  detenus
even  after 'this length of time and from which he drew  the
conclusions on the basis of which he has kept the  petition-
ers  under  detention for a period well over six  months  or
more.
For  the reasons given above I venture to  dissent  from
the opinion of the majority of the Court with great  respect
and  hold  that  the detention orders  above  mentioned  are
illegal.   I accordingly order the release of the  petition-
ers.   On the other points argued in the case I  agree  with
judgment of Sastri J.
    BOSE J.--I agree with my brother Mahajan whose  judgment
I  have  had the advantage of reading, and with  the  utmost
respect  find myself unable to accept the majority view.   I
am of opinion that these petitioners should all be  released
on the ground that their detentions are illegal.
   I do not doubt the right of Parliament and of the execu-
tive  to  place restrictions upon a man's freedom.  I  fully
agree that the fundamental rights conferred by the Constitu-
tion are not absolute.  They are limited. In some cases  the
limitations  are  imposed by the  Constitution  itself.   In
others,  Parliament has been given the power to impose  fur-
ther restrictions and in doing so to confer authority on the
executive  to carry its purpose into effect.  But  in  every
case it is the rights which are fundamental, not the limita-
tions;  and 'it is the duty of this Court and of all  courts
in the land to guard and defend these rights jealously.   It
is our duty and privilege to see that rights which were
468
intended  to be fundamental are kept fundamental and to  see
that neither Parliament nor the executive exceed the  bounds
within  which  they are confined by  the  Constitution  when
given  the  power to impose a restricted set of  fetters  on
these  freedoms;  and in the case of the executive,  to  see
further that it does not travel beyond the powers  conferred
by  Parliament. We are here to preserve intact for the  peo-
ples of India the freedoms which have now been guaranteed to
them and which they have learned through the years to  cher-
ish,  to  the very fullest extent of the guarantee,  and  to
ensure that they are not whittled away or brought to  nought
either by Parliamentary legislation or by executive action.
    It  is the right to personal freedom which  is  affected
here: what the Constitution calls the "right to move  freely
throughout  the  territory of India."  Now I do  not  for  a
moment  deny  the right of Parliament to  place  limitations
upon  that right and to do it by preventive detention.  Much
as  all freedom loving persons abhor the thought of  locking
men and women up without trial and keeping them behind  bars
indefinitely,  the regrettable necessity to do so is  to  my
mind  undoubted.   The safety of the State, which  is  para-
mount,  requires  it  and, in any  event,  the  Constitution
allows  it  but--and this is important--subject  to  limita-
tions.
    So  far as the Constitution is concerned, it  has  given
Parliament the power to legislate on this subject by article
246 read with item 9 of List I of the 7th Schedule and  item
a  in  List III, and I have no doubt  that  the  legislation
sought  to be impugned here is intra vires. But I am  unable
to  hold that the executive action taken in these  cases  on
the  strength  of that legislation is within the  law.   The
executive  has  no power to detain except  within  the  four
corners  of the Constitution and the Act now challenged.  In
my, opinion, it has not kept itself within those limits.
    The  provisions  of  the Constitution  relevant  to  the
present purpose have been examined by this Court in previous
cases  and  I have neither the right-nor the  desire  to  go
behind them.  My brother Mahajan has
469
set out his view of the law which these cases have  settled.
I  respectfully agree with him and will not cover  the  same
ground.   But  I do wish to say this. I am not  prepared  to
place  any  narrow or stilted construction either  upon  the
Constitution or upon the decisions of this Court which  have
so far interpreted it.  If it were permissible to go  behind
file Constitution and enquire into the reason for the provi-
sions  dealing with the fundamental rights, one  would  find
them  bound  up with the history of the fight  for  personal
freedom  in this land.  But that is not permissible  and  is
irrelevant.  What does matter is that the right to  personal
freedom has been made fundamental and that the power even of
Parliament  itself  to  hedge  it  round  with  fetters   is
"cribbed,  cabined and confined".  I conceive it to  be  our
duty  to  give the fullest effect to every syllable  in  the
Articles  dealing with these rights.  I do not mean  to  say
that  any impossible or extravagant construction  should  be
employed  such  as  would make the  position  of  Government
impossible or intolerable.  But I do insist that they should
be  interpreted in a broad and liberal sense so as to  bring
out in the fullest measure the purpose which the framers  of
the  Constitution had in mind as gathered from the  language
they  used  and the spirit their  words  convey,  namely  to
confer the fullest possible degree of personal liberty  upon
the  subject consistent with the safety and welfare  of  the
State.  My  Lord the Chief Justice has pointed  out  in  The
State  of  Bombay v. Atma Ram Shridhar Vaidya (1)  that  the
information  supplied to the  detenu  must be sufficient  to
enable  him  to meet the charges contained  in  the  grounds
given  to  him.  and that without that the  right  would  be
illusory. Are the present cases covered by that rule ? I  do
not  think they are.  Put at their highest, the grounds  set
out the date and place of the meetings at which the speeches
complained of are said to have been made and they do no more
than say that they were.
(1) [1951] S.C.R. 167.
470
"such  as to excite disaffection between Hindus and  Muslims
and  thereby  prejudice the maintenance of public  order  in
Delhi."
I  have no quarrel with the details regarding the  date  and
place but I do not consider that the portion relating to the
nature  of the speeches fulfils the requirements which  have
been laid down by this Court regarding particulars.
Now I fully agree that each case will have to be decided  on
its own facts so far as this is concerned. But when weighing
the  circumstances this must be borne in mind.   The  detenu
has  no  right of personal appearance  before  the  Advisory
Board or other revising authority, nor can he be represented
by  counsel. The Board or other authority can deal with  his
representation without hearing him or anyone on his  behalf.
Therefore, his only hope of being able to convince the Board
lies in the explanation he offers.  But how can anyone  give
a  fair  explanation of his conduct unless he is  told  with
reasonable plainness what he has done, and in the case of  a
speech, the words used are everything. They have been called
"verbal  acts" in another connection.  Now I take it  to  be
established  that Government is bound to give a detenu  rea-
sonable  particulars of the acts complained of when  conduct
is in question.  Why should a different rule obtain when the
acts complained of are verbal ?
It was contended in the argument that the man who makes  the
speech  is in a position to know what he said and so is  not
at  a  disadvantage.  But that, in my opinion,  is  not  the
point.  He may know what he said but he cannot know what the
authorities think he said unless they give him some reasona-
ble  inkling of what is in their minds. It has to be  remem-
bered  that  what the Advisory Board has before  it  is  not
necessarily the words employed or even' their substance  but
what the authorities say the man said.
This has to be viewed from two angles. The first is  whether
the reports handed in to the authorities are Correct.   Even
with the utmost good faith mistakes do
471
occur  and it is quite easy for a reporter to get his  notes
mixed and to attribute to A what was said by B. But unless A
knows that  is what happened, it would be very difficult for
him  to envisage such a contingency and give  the  necessary
explanation of fact in his representation.
    The  next point is this.  When a man ,is told  that  his
speech excited disaffection and so forth, he is being  given
the  final  conclusion reached by some other mind  or  minds
from  a set of facts which are not disclosed to him. If  the
premises  on which the conclusion is based are  faulty,  the
conclusion  will  be wrong.  But even if  the  premises  are
correct,  the  process  of reasoning may be  at  fault.   In
either event, no representation of value can be made without
a reasonably adequate knowledge of the premises.
    Envisage for a moment the position of the Board. In  the
ordinary  course, it would have before it a speech with  the
offending passages in full, or at any rate the gist of them.
From the other side it would have a bare denial, for that is
about all a detenu can say in answer to the grounds given to
him when he is not told the premises on which the conclusion
is based.  In most cases, that sort of representation  would
have very little value.  Consider this illustration.  Let us
assume  the detenu had spoken about Hindus and  Muslims  but
had urged unity and amity and had said nothing objectionable
but that unknown to him the police, through a perfectly bona
fide  mistake,  had imputed to him certain  offensive  words
used  by  another  speaker.  What would be the  value  of  a
detenu  saying  "I said nothing objectionable" and  that  is
almost  all he can say in such a case.  He  cannot  envisage
the mistake and say, "Oh yes, that was said, but not by  me.
It was said by A or B." Consider a second illustration where
the  detenu had quoted a well known living authority. I  can
conceive  of  cases where words in the mouth of A  might  be
considered objectionable by some but would never be  condem-
ned in the mouth of B.  It might make a world of  difference
to
472
the  detenu if he could explain the source of  the  passages
complained of in his speech.  But it might be very difficult
for him to envisage the possibility of objection being taken
to anything coming from the source from which he quoted.
I  am anxious not to be technical and I would be  averse
to  an  interpretation which would  unnecessarily  embarrass
Government,  but I do conceive it to be our duty to  give  a
construction which, while falling strictly within the  ambit
of the language used, is yet liberal and reasonable, just to
the detenu, fair to the Government. And after all, what does
a construction such as I seek to make import ? It places  no
great  or impossible strain on the machinery of  Government.
All  that is required is that the authorities should  bestow
on  the cases of these detenus a very small fraction of  the
thought,  time and energy which the law compels in the  case
of  even  the meanest criminal who is arraigned  before  the
Courts  of this country.  The fact that there is  absent  in
the  case  of these persons all the  usual  safeguards,  the
glare  of  publicity, the right to know with  precision  the
charge  against him, the right to speak in his own  defence,
is all the more reason why Government should be  thoughtful,
considerate and kind and should give them the maximum  help.
In  any case, that, in my opinion, is what the  Constitution
requires and I am not prepared to abate one jot or tittle of
its rigours.
     My  attention  has been drawn to two decisions  of  this
Court  which  are said to be on all fours with  the  present
case.  One is Vaidya's case (1) and the other Lahiri's  (2).
In  the  latter, the point whether the gist  of  the  speech
should  be given was not considered. It seemed to have  been
assumed that it need not. But I am unable to accept that  as
authority for anything beyond the fact that  was not consid-
ered necessary on the facts and in the circumstances of that
particular  case.  As my Lord the Chief Justice pointed  out
in the earlier decision cited above, the question of
 (1) [1951] S.C.R. 167.         (2) Not reported,
473
what  is vague "must vary according to the circumstances  of
each case." It was also said there that
    "the  conferment of the right to make  a  representation
necessarily  carries with it the obligation on the  part  of
the detaining authority to furnish the grounds, i.e.,  mate-
rials on which the detention order was made."
It was further said
    "Ordinarily,  the 'grounds' in the sense of  conclusions
drawn by the authorities will indicate the kind of  prejudi-
cial  act  the detenu is suspected of being engaged  in  and
that will be sufficient to enable him to make a  representa-
tion  setting  out  his innocent activities  to  dispel  the
suspicion against him."
    This envisages cases in which that would not be  enough.
It  is therefore sufficient for me to say that in a case  of
this  kind, where the matter has to turn on the  facts   and
circumstances of each case, no useful purpose can be  served
by  examining  the facts of some other case for  use  as  an
analogy.   In my opinion, on the facts and circumstances  of
the  present cases, the grounds supplied  were  insufficient
and  the  gist of the offending passages  should  have  been
supplied.   The omission to do so invalidates the  detention
and each of the detenus is entitled to immediate release.
Petitions dismissed.
    Agent  for  the petitioners in Petitions Nos. 21  &  22:
Ganpat Rai.
    Agent  for  the petitioner in Petition  No.  44:  V.P.K.
Nambiyar.
Agent for the respondents: P.A. Mehta.
474
PETITIONER:
BISHUNDEO NARAIN AND ANOTHER
        Vs.
RESPONDENT:
SEOGENI RAI AND JAGERNATH
DATE OF JUDGMENT:
04/05/1951
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
CITATION:
 1951 AIR  280            1951 SCR  548
 CITATOR INFO :
 R          1963 SC1279  (21)
 F          1976 SC   1  (17)
 R          1977 SC 615  (9)
ACT:
Civil Procedure Code (Act V of 1908), O. 32, r.  7--Suit
for partition to which minor is party--Compromise by  guard-
ian-  Sanction  of court not obtained before  entering  into
agreement--Validity  of decree--Suit by minor to  set  aside
decree--Mere unfairness of division, effect of.
HEADNOTE:
    Where a Court has sanctioned an agreement or  compromise
in  a  suit  to which a minor is a  party  after  satisfying
itself that it is for the minor's benefit, the decree  based
on the agreement or compromise cannot be held to be  invalid
or  not binding on the minor merely because the sanction  of
the  Court was not obtained by the next friend  or  guardian
before  he began to negotiate for the agreement  or  compro-
mise.
(1) 37 I.A. 136.            (2) 39 I.A. 133.
549
    Awadesh Prasad Missir v. Widow of Tribeni Prasad  Missir
(I.L.R. 19 Pat. 343) disapproved.
    The rule that in the case of a partition between members
of  a  joint  Hindu family one of whom is a  minor,  if  the
minor,  on  obtaining  majority, is able to  show  that  the
division was unfair and unjust, the court will set it aside,
does  not apply to decrees in partition suits in  which  the
minor was properly represented before the court.  The decree
is  as  binding on him as on the adult  parties  unless  the
minor can show fraud or negligence on the part of his friend
or guardian ad litem.
JUDGMENT:
CIVIL APPELLATE JURISDICTION.  Civil  Appeal No. 78 of 1950.
   Appeal  against  the Judgment and decree dated  the  1st
December,  1942,  of the High Court of Judicature  at  Patna
(Manohar Lal and Shearer JJ.) in F.A. No. 188 of 1939  aris-
ing  out of a Decree dated the 23rd December, 1937,  of  the
Subordinate Judge at Saron ,Chapra, in Suit No. 48 of 1936.
H.J. Umrigar for the Appellant.
    S.P. Sinha (S. N. Mukherjee, with him) for the  Respond-
ent No. 1.
    1951. May 4. The Judgment of the Court was delivered by
BOSE- J.--This is a plaintiffs'  appeal from a  judgment
and decree of the High Court of Judicature at Patna.   Their
Lordships of the Privy Council had granted special leave and
the matter has been transferred to this Court.
    The suit out of which the appeal arises was for a decla-
ration  in  compromise decree, made in a previous  suit  for
partition, does not bind the plaintiffs. The learned counsel
for  the plaintiffs-appellants also contends that  he  asked
for  partition in the present case. But that is a matter  of
doubt.
The facts in brief are as follows:
    The parties are members of a family whose common  ances-
tor was one Moti Rai. A long genealogical tree was  attached
to the plaint but it is not necessary to reproduce more than
the following:
                   Moti Rai
           /----------------------------------------       |                                
    |
       Bhajan Rai                               Hazari Rai
|                                        |
       /-------------------\              Ghughuli Rai
       |        |          |                   |
Firangi Rai     | Charichhan Rai  Bikram  /------------     |           |       |         Ra
i         |            |
Seogeni  Rai    |     Sons      Bisundeo Rai Girishinkar Rai
Draft No 1      |   Drafts No3,  Plff.No. 1   Plff.No.2
                |    4 & 5.
                |
              Sons
          Drafts 11&12
Moti Rai had two sons, Bhanjan Rai and Hazari Rai.  The
defendants are descended from the former and the  plaintiffs
from the latter. The contesting defendant is Seogem Rai, son
of  Firangi Rai. The plaintiffs did not disclose  that  Moti
Rai's  two  sons were by different wives, as  that  was  not
their  case, but that has now been found to be the fact  and
was not disputed here.
The  plaintiffs'  case is that the family was joint  at  all
material  times until their father Ghughuli Rai  was  forced
into  a  partition in the year 1924.  They state  that  this
partition does not bind them for a variety of reasons which,
so  far as they affect the present appeal, will be  detailed
later.
     According to the plaintiffs, the circumstances of  that
partition were as follows. The plaintiffs'  father  Ghughuli
Rai and the first plaintiff instituted partition suit No. 51
of  1924  against  Firangi Rai and his  brothers  and  their
descendants,  that  is to say, against all  the  members  of
Bhanjan Rai's branch who were then in existence. The  second
plaintiff  was not then born and the first plaintiff  was  a
minor. There were also minors among the defendants.  Firangi
Rai, who was the, karta of the family, through the  exercise
of undue influence, and by coercion, forced the  plaintiffs'
father to compromise. The compromise was grossly unfair  and
unequal  but nevertheless a decree for  partition  followed.
This  is the decree which the plaintiffs seek  to  challenge
here.
551
    It  is admitted on both sides that  decree left  certain
properties  undivided. The extent of those properties is  in
dispute but the fact that some properties were left undivid-
ed is admitted.
    In  the year 1936 the first defendant instituted  parti-
tion  suit No. 29 of 1936 for partition by metes and  bounds
of that portion of the estate which was not divided in 1924.
The plaintiffs' case is that the previous partition does not
bind  them  and so the whole of the family  estate  must  be
brought  into  hotch-pot and divided  and  not   merely  the
properties   which  were left undivided in 1924;  also  that
their  share in these properties is greater than  the  share
allotted  to their father under the compromise  decree.  The
plaintiffs  state that so long as the compromise  decree  in
partition suit No. 51 of 1924 stands, such a defence is  not
open to them in suit No. 29 of 1936. Accordingly, they  have
brought the present suit.
    The  first defendant alone contested and as we  are  not
concerned with any of the others except indirectly, it  will
be  convenient to refer to him throughout as the  defendant.
He  stands by the compromise and denies that  the  partition
effected  by  it was either unequal or unfair. On  the  con-
trary,  he  asserts that the plaintiffs got much  more  than
they were entitled to. He also denies the allegation   about
undue  influence and coercion.
The  defendant's case about the compromise is  this.  He
admits  that the family was once joint but says  that  there
was  a separation long ago in the lifetime of Moti Rai  him-
self. Moti Rai's two wives could not pull on, so the defend-
ant's grandfather Bhanjan Rai separated from his father Moti
Rai  and his step-brother Hazari Rai. This was  some  twenty
years before the suit. Ever since the two branches have  had
nothing in common.
    The defendant states that there were further  partitions
among  the  defendant's branch and that from  time  to  time
members  of  the defendant's branch, as also  those  on  the
plaintiffs' side, have been acquiring
552
property  for themselves with which the others have no  con-
cern.  Thus, at the date of the plaintiffs' suit (No. 51  of
1924) a number of properties stood in the separate names  of
various members of the family and were the separate  proper-
ties.  The plaintiffs thus had no right of suit at all.  But
in  order  to  avoid a long litigation and  to  settle  this
family dispute amicably, the defendant's father Firangi  Rai
agreed to give the plaintiffs a four annas share in many  of
the properties acquired by the defendant's branch after  the
first  partition in Moti Rai's lifetime to which the  plain-
tiffs' branch had no claim at all. The defendant claims that
this is a family arrangement which binds all sides.
The  first Court decided in the plaintiffs' favour  and  de-
creed  their claim not only for a declaration but  also  for
partition.  It is a matter of doubt whether  the  plaintiffs
ever  claimed  partition,  but there is no  doubt  that  the
properties which the learned trial judge has directed to  be
partitioned were not admitted by the defendant to be subject
to partition even on the assumption that the plaintiffs  are
right  in all their other allegations. Thus,  the  defendant
stated that some of the properties were non-existent, others
sell-acquired and so forth.  But the learned Judge,  without
trying any of these issues (the dispute is covered by  Issue
No.  9)  and without any evidence being led  on  the  point,
directed that they be partitioned.  That, of course,  cannot
be upheld on any view of the case.
The  defendant appealed to the High Court  and  succeeded.
The  learned  High Court Judges reversed the decree  of  the
trial Court and dismissed the plaintiffs claim.
   The appeal here lies in a very narrow compass and can  be
disposed  of quite simply.  In substance 'only  five  points
were raised before us.  The first concerns Order 32, rule 7,
of  the Code of Civil Procedure.  As minors were parties  on
both  sides in the previous suit, the sanction of the  Court
was  necessary for the compromise.  On 17th November,  1924,
the trial Court made the following entry in its order  sheet
:--
553
    "Solehnarna  filed  with petitions on  behalf  of  minor
defendant for permission to compromise.  Put up on the  date
fixed for order."
    On  the  following day, viz.,  18th November,  1924,  we
have this--
    "Petition  of compromise put up.  The proposed  guardian
of minor plaintiff and defendants have filed ' petitions for
permission to compromise. Permission granted as the  compro-
mise was for the minor's benefit."
  It is contended that this is insufficient to show that the
learned  Judge applied his mind to the matter and  satisfied
himself that the compromise was for the minors' benefit.
    We  cannot  agree.  There is no set form  in  which  the
certificate  which the Court is required to record  need  be