quashed the notifications dated 08.10.2003 and 07.05.2004 issued under Sections 4 and 6 of Land Acquisition Act, 1894, respectively, by the State of Haryana regarding acquisition of land measuring 129 kanals 14 marlas in village Lakarpur, District Faridabad. The High Court has further quashed the Award dated 05.05.2006, passed by respondent No. 4 in respect of land owned by respondent No. 1 Eros City Developers Pvt. Ltd., which was acquired through the above mentioned notifications.= “Salus Populi est suprema lex: regard for the public welfare is the higher law.” This principle is based on the implied agreement of every member of society that his own individual welfare shall in cases of necessity yield to that of community. His property, liberty and life shall under certain circumstances be placed in jeopardy or even sacrificed for the public good.”=We are of the view that the High Court is incorrect in holding that the State has not acted bonafide, after 1992 acquisition proceedings were dropped. It is apparent from the record that earlier proceedings were dropped in the light of orders passed in M.C. Mehta’s Case in the year 1996, restraining construction in the area, and after modification in the said order in the year 1998, the State took fresh decision to acquire the land for public purpose and there is no illegality in the same.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                         CIVIL APPEAL NO.354 OF 2016
                (Arising out of S.L.P. (C) No. 7553 of 2008)


State of Haryana                             … Appellant

                                   Versus

Eros City Developers Pvt. Ltd. and others          …Respondents

                                  WITH

                 CIVIL APPEAL NO.355 OF 2016
(Arising out of SLP (C) No. 27588 of 2008)






                               J U D G M E N T




Prafulla C. Pant, J.


      Leave granted in both the special leave petitions.

These appeals are directed against  judgment  and  order  dated  21.01.2008,
passed by the High Court of Punjab and Haryana in Civil  Writ  Petition  No.
10611 of 2004  whereby  said  Court  has  quashed  the  notifications  dated
08.10.2003  and   07.05.2004  issued  under  Sections  4  and  6   of   Land
Acquisition Act, 1894, respectively,  by  the  State  of  Haryana  regarding
acquisition of land measuring 129 kanals  14  marlas  in  village  Lakarpur,
District Faridabad.  The High Court has  further  quashed  the  Award  dated
05.05.2006, passed  by  respondent  No.  4  in  respect  of  land  owned  by
respondent No. 1 Eros City Developers Pvt. Ltd., which was acquired  through
the above mentioned notifications.

Succinctly stated total area of 172 kanals 19  marlas  situated  in  village
Lakharpur Tehsil  Ballabgarh  in  District  Faridabad  was  proposed  to  be
acquired by the State  of  Haryana  through  notification  dated  08.10.2003
issued under Section 4 of Land  Acquisition  Act,  1894  out  of  which  129
kanals 14 marlas (for short subject land) belonged to respondent  no.1  M/s.
Eros City Developers Pvt. Ltd.  The details of the  persons  whose  land  is
acquired is as under:

|S.   |Name of owner      |Total Area  |Status                       |
|No.  |                   |            |                             |
|1.   |Shri Sekher        |6 kanal     |Compensation paid. Possession|
|     |S/o Shri Roshan Lal|2 ½ marla   |taken over.                  |
|2.   |Shri Sissar S/o    |6 kanal     |Compensation paid. Possession|
|     |Shri Roshan Lal    |2 ½ marla   |taken over.                  |
|3.   |M/s. Eros City     |129 kanal   |Compensation deposited before|
|     |Developers Pvt.    |14 marla    |the Land Acquisition         |
|     |Ltd.(Respondent    |            |Collector. Acquisition       |
|     |No.1 herein)       |            |quashed vide impugned        |
|     |                   |            |judgment.                    |
|4.   |Shri Vikram Bakshi |25 kanal    |C.W.P. No. 1510 of 2005      |
|     |S/o Shri DN Bakshi |2 marla     |pending before the High      |
|     |                   |            |Court.  Status quo with      |
|     |                   |            |regard to the possession of  |
|     |                   |            |the land ordered during the  |
|     |                   |            |pendency of the writ petition|
|     |                   |            |vide order dated 22.5.2006.  |
|     |                   |            |Compensation deposited before|
|     |                   |            |the Land Acquisition         |
|     |                   |            |Collector.                   |
|5.   |M/s. Faridabad     |2 kanal     |Compensation paid. Possession|
|     |Compex             |18 marla    |taken over.                  |

The subject land was stated  to  have  been  acquired  for  the  purpose  of
expansion and systematic development  of  Surajkund  Tourist  Complex  which
included development of parking  area  adjacent  to  the  Surajkund  Tourist
Complex near annual Surajkund Fair.

Admittedly, earlier in 1992 an attempt was made to  acquire  the  same  land
but the acquisition proceedings were dropped after this court  passed  order
dated 10.05.1996 in WP  (C)  No.  4677  of  1985  i.e.,  M.C.  Mehta’s  case
restraining the constructions in the area.   Meanwhile  in  1993  contesting
respondent appears to have purchased the land indicated  above.   It  is  in
1998, the order dated 10.05.1996 said to have been modified,  and  Municipal
Corporation Faridabad and the State Government  were  directed  to  consider
the plan of hotel project submitted by the respondent No.1.

Learned counsel for the appellant  State  submitted  that  annual  Surajkund
Mela, is held every year in February in Faridabad District, and  has  become
a regular feature of  international  fame.   As  such,  there  was  need  to
develop Surajkund Tourist Complex by acquiring land adjoining  to  Surajkund
Mela ground in Faridabad.  It is  also  pointed  out  that  significance  of
Surajkund fair was noticed by this Court in W.P. (C) No. 4677 of 1985  (M.C.
Mehta vs. Union of India and ors.) wherein effective directions were  issued
in the year 1996 to protect and maintain the  sanctity  of  the  area.   The
acquisition of subject-land is thus not only in public interest but also  to
maintain the integral development of the Surajkund Complex in a unified  and
planned manner.  It is  contended  that  while  quashing  the  notifications
mentioned above, the High Court has erred  in  not  considering  the  public
interest and public purpose over private  interest  of  the  respondent/writ
petitioner, a private colonizer.  The impugned  order  passed  by  the  High
Court has been assailed by the  appellant,  also  on  the  ground  that  the
equity doctrines of promissory  estoppel  and  legitimate  expectation  were
wrongly applied by the High Court in favour of  respondent  No.  1.   It  is
stated that before issuance of notification under  Section  6  of  the  Land
Acquisition Act, 1894 (for short “the Act”) objections filed  on  behalf  of
respondent No. 1 under Section 5A of the Act were  duly  considered  by  the
authority concerned, and there was no illegality in the acquisition.

On the other hand, on behalf of respondent No. 1, Shri  Shyam  Divan  Senior
Counsel contended that Government of  Haryana  which  earlier  attempted  to
acquire the same land in the  year  1992,  itself  dropped  the  acquisition
proceedings as such  it  cannot  be  said  that  the  land  in  question  is
genuinely required for any public purpose.  The  contesting  respondent  has
pleaded that the land in question was purchased by it in the year 1993  with
the object to construct a hotel complex of international  standard.  In  the
counter affidavit, it is  stated  that  the  answering  respondent  got  the
permission for change of land use and submitted the plan for  sanction  from
the Municipal Corporation.  It also obtained permission  from  Public  Works
Department for  construction  of  approach  road  to  the  land.   Even  the
Director, Tourism, Government of Haryana,  had  accorded  approval  for  the
hotel project of respondent No. 1.  However, the  answering  respondent  was
prevented from  raising  construction  due  to  the  restraint  order  dated
10.5.1996, passed by this Court in M.C. Mehta’s case (in W.P. (C)  No.  4677
of 1985).  Said order was modified on 13.05.1998.  On application  filed  by
the answering respondent, vide order dated 12.10.1998, this  Court  directed
the Municipal Corporation, Faridabad, and State Government to accept  option
plan A with regard to hotel project (ground plus four floors), submitted  by
it.  It is submitted that  there  was  malice  on  the  part  of  the  State
Government in acquiring the land in question through the notification  dated
08.10.2003 issued under Section 4 of the  Act.   It  is  also  pleaded  that
there were overwhelming circumstances in favour of the answering  respondent
to  invoke  doctrine  of  promissory  estoppel,  and  that   of   legitimate
expectation.  In this connection, it  is  pointed  out  that  permission  of
change of land use was also granted in favour of the  answering  respondent.
Lastly, it is  submitted  that  the  High  Court  has  rightly  quashed  the
notifications issued by the State Government for  acquisition  of  the  land
owned by the answering respondent.

 In reply to this, on behalf of the State of Haryana, it is  submitted  that
since the construction did not start within six  months  as  required  under
the terms of order by which permission for change of land  use  was  granted
as such merely for  the  reason  that  permission  to  change  of  land  use
granted, the acquisition cannot be  questioned.   It  is  further  submitted
that the acquisition proceedings have been  upheld  by  the  High  Court  in
Civil Writ Petition No. 1510 of 2005 filed by Vikram Bakshi, who  was  owner
of another piece of land acquired  by  same  notification  dated  08.10.2003
issued under Section 4 of  the  Act  read  with  consequential  notification
issued under Section 6 of the Act.

We have also gone through the copy of order dated 07.07.2010 passed  by  the
High Court of Punjab & Haryana in Civil  Writ  Petition  No.  1510  of  2005
filed by Vikram  Bakshi,  said  writ  petition  was  filed  challenging  the
notification dated 08.10.2003 issued under Section  4  of  Land  Acquisition
Act, 1894, and the consequential notification issued under Section 6 of  the
Act.  The land for which acquisition sought to be quashed by  Vikram  Bakshi
relates to 32 kanal of land comprising of rectangle no. 40 khasra  Nos.  14,
17/1, 17/2, 18/1, 23/1, and  24/1 of Village  Lakharpur  Tehsil  Ballabhgarh
District Faridabad. In said petition also,  public  purpose  i.e.  expansion
and systematic development of Surajkund Tourist Complex was questioned,  and
issue relating to consideration of objections filed under  Section  5-A  was
raised.  The High Court after considering the rival  submissions  and  going
through the record opined that there was no illegality  in  the  acquisition
and dismissed the Writ Petition No. 1510 of 2005 on 07.07.2010.

In Sooraram Pratap Reddy and Others  vs.  District  Collector,  Ranga  Reddy
District and others (2008) 9 SCC 552, this Court has held that  the  project
for which land is acquired should be taken as a whole  and  must  be  judged
whether it is in the larger  public  interest.   It  cannot  be  split  into
different components and to consider whether each and every  component  will
serve public good.  A holistic approach has to be adopted in  such  matters.
This Court further observed in said case that development of  infrastructure
is legal and legitimate public  purpose  for  exercising  power  of  eminent
domain.  In deciding whether acquisition is for  “public  purpose”  or  not,
prima facie, the Government is the best judge.   Although  the  decision  of
the Government is not beyond judicial scrutiny, normally, in such matters  a
writ court should  not  interfere  by  substituting  its  judgment  for  the
judgment of the Government.  In Sooraram Pratap Reddy  (supra),  this  Court
has further explained that the meaning of  expression  “public  purpose”  is
wider than that of “public necessity”.

Clause (f) of Rule 26-D of the Punjab Scheduled Roads and  Controlled  Areas
Restriction of Unregulated Development Rules, 1965 (for short “1965  Rules”)
requires the applicant seeking  change  of  land  use  for  construction  to
undertake to start construction on the land within a period  of  six  months
and complete the construction within a period of two years from the date  of
order permitting the change of land use. It  appears  that  no  construction
was done in terms of Clause (f) of Rule 26-D of 1965 Rules on  the  land  in
question, for which acquisition is quashed by the impugned order.

In State of Haryana and Others vs. Vinod Oil and General Mills  and  Another
(2014) 15 SCC 410, this Court has held that permission for  change  of  land
use has no relevance while considering the validity of  acquisition.  It  is
further observed in said case  that  there  is  no  bar  to  the  subsequent
acquisition  of  a  land,  after  the  land  was   released   from   earlier
acquisition.

In A.P. Pollution Control Board  II  vs.  M.V.  Nayudu  (Retd.)  and  Others
(2001) 2 SCC 62, this Court has observed in para 69 as under:

“69. The learned Appellate Authority erred in thinking that because  of  the
approval of plan by  the  Panchayat,  or  conversion  of  land  use  by  the
Collector or grant of letter of intent by the  Central  Government,  a  case
for applying principle of “promissory estoppel”  applied  to  the  facts  of
this case. There could be no estoppel against the statute…...”

As far as the argument advanced on behalf of  the  respondent   relating  to
the promissory estoppel and legitimate expectation is concerned,  in  Monnet
Ispat and Energy Limited vs. Union of India and  Others  (2012)  11  SCC  1,
this  Court  while  enumerating  the  principles  relating  to  doctrine  of
promissory estoppel and legitimate expectation has  clearly  held  that  the
protection of legitimate expectation does not  require  the  fulfillment  of
the expectation where an overriding public interest requires otherwise.   In
other words, personal benefit must give  way  to  public  interest  and  the
doctrine of legitimate expectation  cannot  be  invoked  which  would  block
public interest for private benefit.
 In Hira Tikkoo vs. Union Territory, Chandigarh  and  Others  (2004)  6  SCC
765, this Court explaining the scope of principle of legitimate  expectation
has held that the doctrine cannot be pressed into service where  the  public
interest is likely to suffer as against the personal interest  of  a  party.
In paragraph 22 this Court has observed as under:
“22. In public law in certain situations, relief to  the  parties  aggrieved
by action or promises of public authorities can be granted on  the  doctrine
of “legitimate expectation” but when grant of such relief is likely to  harm
larger public interest, the doctrine cannot be allowed to  be  pressed  into
service. We may usefully call in aid the  legal  maxim:  “Salus  Populi  est
suprema lex: regard  for  the  public  welfare  is  the  higher  law.”  This
principle is based on the implied agreement of every member of society  that
his own individual welfare shall in cases of  necessity  yield  to  that  of
community. His property, liberty and life shall under certain  circumstances
be placed in jeopardy or even sacrificed for the public good.”

  In view of the principle of law laid down by this Court as above,  in  our
opinion the High Court has erred in quashing  the  acquisition  of  land  in
question,  by  applying  doctrine  of  promissory  estoppel  and  legitimate
expectation, in the facts of the present case.  We  have  no  hesitation  in
holding that the purpose i.e. for expansion and  systematic  development  of
Surajkund Tourist Complex, is a public purpose. It included  development  of
parking area adjacent to Surajkund Tourist  Complex  near  annual  Surajkund
Fair. We are of the view that the High Court is incorrect  in  holding  that
the State has not acted bonafide, after 1992  acquisition  proceedings  were
dropped. It is apparent  from  the  record  that  earlier  proceedings  were
dropped in the light of orders passed in  M.C.  Mehta’s  Case  in  the  year
1996, restraining construction in the area, and after  modification  in  the
said order in the year 1998, the State took fresh decision  to  acquire  the
land for public purpose and there is no illegality in the same.

Accordingly, both the appeals are allowed and impugned  judgment  and  order
dated 21.01.2008 passed by the High Court in CWP No.10611 of  2004,  is  set
aside. No order as to costs.

………………………….J
(Ranjan Gogoi)

………………………..J
(Prafulla C. Pant)
New Delhi
Dated: January 19, 2016

The company shall not be liable for under this policy in respect of 1 to 11…………. 12. Loss or damage to property, insured whilst in window display at night or whilst kept out of safe after business hours.”= burglary took place at night and the insured items kept in display window and some lying out of safe were stolen. Due to these facts, clauses 4, 5 and 12 were attracted against the respondent. In order to claim benefit of the policy, it was obligatory upon the respondent to have removed the insured items from display window everyday after business hours and keep them inside safe during night hours till opening of the shop next day. Like wise all insured items in side the shop should also have been kept in side the safe everyday after business hours till opening of the shop next day. It was, however, not done by the respondent. A contract of insurance is one of the species of commercial transaction between the insurer and insured. It is for the parties (insurer/insured) to decide as to what type of insurance they intend to do to secure safety of the goods and how much premium the insured wish to pay to secure insurance of their goods as provided in the tariff. If the insured pays additional premium to the insurer to secure more safety and coverage of their insured goods, it is permissible for them to do so. In this case, the respondent did not pay any additional premium to get the coverage of even two instances mentioned above to avoid rigour of note of clauses 4, 5 and clause 12. In view of foregoing discussion, we cannot concur with the reasoning and the conclusion arrived at by the Commission. The appeal filed by the insurance company, i.e., Civil Appeal No. 2140 of 2007, therefore, deserves to be allowed.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No.2140 OF 2007

United India Insurance Co. Ltd.          ……Appellant(s)


                             VERSUS


M/s Orient Treasures Pvt. Ltd.          ……Respondent(s)

                             WITH
                 CIVIL APPEAL No.5141 OF 2007

M/s Orient Treasures Pvt. Ltd.           ……Appellant(s)


                             VERSUS


United India Insurance Co. Ltd.   ……Respondent(s)

                               J U D G M E N T
Abhay Manohar Sapre, J.
C.A. No. 2140 of 2007
1)    This appeal under Section 23 of the Consumer Protection Act,  1986  is
filed against the order dated 19.03.2007 of the National  Consumer  Disputes
Redressal Commission (hereinafter referred  to  as  “the  Commission”),  New
Delhi in Original Petition No. 375 of 1999 whereby the   Commission  allowed
the petition filed by the respondent  herein  and  directed  the  appellant-
insurance company to pay a sum of Rs.36,10,211/-  with  interest  @10%  p.a.
from 03.12.1995 till  date  of  payment  and  also  directed  the  insurance
company to pay costs assessed at Rs.50,000/- to  the  respondent-Complainant
herein.
2)    In order to appreciate the issue involved in this appeal,  which  lies
in a narrow compass, it is necessary to set out the relevant facts in  brief
infra.
3)    The appellant herein is an insurance  company incorporated  under  the
Companies Act having its registered office at No. 24, Whites Road,  Chennai.
 The respondent herein is also a company incorporated  under  the  Companies
Act, 1956 having its registered office at Oceanic Buildings, Quilon,  Kerala
and its branches inter alia at Janpriya Centre No.34, Sir  Thyagaraya  Road,
Pondy Bazar, Chennai.
4)    The respondent herein is the complainant.  They  are  engaged  in  the
business of sale of various kinds of Jewellery.  The  respondent  is  having
their jewellery shop  known  as  “Kanchana  Mahal”  which  is   situated  at
Janpriya Centre No.34, Sir Thyagaraya Road, Pondy Bazar, Chennai.
5)    The respondent had insured their jewellery kept  in  their  shop  with
the appellant under successive “Jewellers Block Policies” with  effect  from
02.07.1993 onwards.  The procedure followed  was  that  the  respondent  was
required to submit proposal form.  On receipt  of  the  proposal  form,  the
officials of the appellant-insurance company used to  inspect  the  shop  to
verify the security and storage particulars.
6)    The respondent filled up the  insurance  proposal  form  by  providing
necessary information as mentioned in the form. On the  basis  of  the  said
proposal form, the appellant issued an insurance policy  in  favour  of  the
respondent from 02.07.1993 to 01.07.1994. It was then  subsequently  renewed
for further one year, i.e. from 02.07.1994 to 01.07.1995.
7)    On 02.06.1995, the respondent alleged that there  was  a  burglary  in
their Jewellery  shop.   According  to  the  respondent,  on  the  night  of
02.06.1995, burglars broke open the locks of shutters, entered the shop  and
decamped with the gold and silver ornaments valued at  Rs.40,63,735.53.  The
respondent accordingly  lodged  FIR  at  the  concerned  Police  Station  on
03.06.1995.  The respondent also informed the appellant on 03.06.1995  by  a
telegraphic communication about this incident.  By letter dated  05.06.1995,
the appellant informed the respondent that a Surveyor has been appointed  to
assess the loss suffered by the respondent in  the  burglary.  The  surveyor
then inspected the site and also examined all the relevant material,  books,
inventory etc. with a view to assess the actual loss alleged  to  have  been
suffered by the respondent  and  accordingly  assessed  the  total  loss  at
Rs.36,10,211/.  Thereafter he submitted  his  report.  After  investigation,
the police  also  submitted  a  final  investigation  report  on  24.06.1995
treating the case as untraceable.
8)     The respondent then submitted their claim with the appellant  on  the
basis of the Insurance Policy and claimed that they are entitled to  receive
the value of Jewellery which they lost in burglary committed in  their  shop
on 02.06.1995. On  19.01.1998,  the  Divisional  Manager  of  the  Insurance
Company, Tuticorin after examining the respondent’s claim for loss of  their
Jewellery repudiated the claim inter alia on  the  ground  that  the  stolen
gold ornaments and silver articles were found to had been  kept  on  display
window and in the sales counters at the time of burglary  which  took  place
in the night of 02.06.1995, which according to appellant,  was  contrary  to
the terms of the policy and, therefore, not covered in the policy. In  other
words, such items were not insured. It was further stated  that  the  policy
was issued subject  to  the  terms,  conditions,  warranties  and  exclusion
printed in the proposal form which was  a  part  of  policy.  The  appellant
relied on clause 12 of the policy and stated that since the burglary in  the
shop took place during night and stolen articles  kept  in   window  display
and lying out of safe in the shop were stolen, the appellant  could  not  be
made liable to indemnify  such  loss  which,  according  to  them,  was  not
insured and specifically excluded from the insurance policy.
9)    Being aggrieved by the decision of  the  appellant-Insurance  Company,
the Respondent sent letters and reminders pointing out therein the terms  of
the proposal form and policy and insisted that the loss  was  fully  covered
by the policy and hence they were entitled to claim the value  of  the  lost
articles from the appellant on the basis of Insurance  Policy.   As  nothing
was done, the respondent filed a  complaint  before  the  National  Consumer
Disputes Redressal Commission, New Delhi (hereinafter referred  to  as  “the
Commission”) being Original Petition No. 375  of  1999  claiming  a  sum  of
Rs.1,32,06,786.30.
10)    By  order  dated  19.03.2007,   the  Commission  partly  allowed  the
petition filed  by  the  respondent  and  directed  the  appellant-Insurance
Company to pay a sum  of  Rs.36,10,211/-  with  interest  @  10%  p.a.  from
03.12.1995 till date of payment and also directed the Insurance  Company  to
pay costs assessed at Rs.50,000/- to the respondent.
11)   Aggrieved by the  said  order,  the  appellant-Insurance  Company  has
filed this appeal.
12) Dissatisfied with the claim awarded by the  Commission,  the  respondent
has filed C.A. No. 5141 of  2007  seeking  enhancement  in  the  quantum  of
claim. According to the respondent, they are entitled  to  claim  a  sum  of
Rs.1,32,06,786.30 as against Rs. 36,10,211/- awarded by the Commission.
13)   Heard Mr. P.P. Malhotra, learned senior counsel for the appellant  and
Mr. H. Ahmadi, learned senior counsel for the respondent.
14)   Shri P.P.Malhotra, learned senior counsel appearing for the  appellant
while assailing the legality and correctness of the  impugned  order  mainly
urged two points in support of his submissions.
15)   In the first place, learned senior counsel urged that  the  Commission
erred in partly allowing the complaint filed by  the  respondent  herein  by
passing the impugned award  against  the  appellant.  According  to  learned
counsel, had the Commission properly interpreted clauses  4  and  5  of  the
proposal form, which was part of the policy along  with  clause  12  of  the
policy then in such event, the  respondent's  complaint  was  liable  to  be
dismissed in its entirety.
16)   Elaborating the aforementioned  submission,  learned  counsel  pointed
out that the plain reading of clauses 4  and  5  (b)  with  their  note  and
clause 12 of the  policy  clearly  show  that  the  respondent's  claim  was
excluded from the policy issued by the appellant because it was in  relation
to the items which were kept in display window and out of safe at  the  time
of burglary.
17)   In other words, the submission was that  the  respondent's  claim  was
not covered under the  policy  and  was  expressly  excluded  by  virtue  of
clauses 4 and 5(b) read with clause 12 of the policy  because  firstly,  the
burglary in the shop took place in night  hours  and  secondly,  the  stolen
articles were kept in display window and outside the safe.
18)   Learned counsel, therefore, urged  that  due  to  these  two  admitted
facts, the note appended to  clauses  4  and  5  read  with  clause  12  was
attracted rendering the respondent's complaint as not maintainable.
19)    Learned counsel further  pointed  out  that  the  respondent  despite
knowing these clauses of the proposal form/policy  instead  of  seeking  any
clarification regarding meaning of the clauses  paid  the  premium  pursuant
thereto  the  appellant  issued  the  Insurance  policy  on  the  terms  and
conditions  set  out  therein  which  are  binding  on  both  parties  while
adjudicating their rights against each other arising out of the policy.
20)   Learned counsel, in the second place, submitted that the  language  of
clauses 4, 5 and 12 being plain, clear and unambiguous  conveying  only  one
meaning, the appellant had every right to  rely  upon  these  clauses  while
opposing the respondent's complaint on merits.
21)   Learned counsel, therefore, submitted  that  in  the  light  of  these
facts, the  respondent  had  no  right  to  file  a  complaint  against  the
appellant seeking monetary compensation for the loss alleged  to  have  been
suffered by them arising out of  burglary  of  their  articles  stolen  from
their shop. Such claim, according to learned counsel, was barred  by  virtue
of clauses 4, 5 and 12 of  the  policy  and  was  therefore,  liable  to  be
dismissed as being untenable.
22)   In support of his submission, learned counsel placed reliance  on  the
decisions in General Assurance Society Ltd.  vs.  Chandumull  Jain  &  Anr.,
AIR 1966 SC 1644 = (1966) 3 SCR 500, United India  Insurance  Co.  Ltd.  vs.
Harchand Rai Chandan Lal (2004) 8 SCC 644, Oriental Insurance Co.  Ltd.  vs.
Sony Cheriyan, (1999) 6 SCC 451, Rahee Industries  Ltd.  vs.  Export  Credit
Guarantee Corporation of India Ltd. & Anr., (2009) 1 SCC 138,  Sikka  Papers
Ltd. vs. National Insurance Co. Ltd.  &  Ors.,  (2009)  7  SCC  777,  Vikram
Greentech India Ltd. & Anr. vs. New India Assurance Co. Ltd., (2009)  5  SCC
599, New India Assurance Co. Ltd. vs. Zuari Industries Ltd. &  Ors.,  (2009)
9 SCC 70, Amravati District Central Cooperative Bank Ltd. vs.  United  India
Fire and General Insurance Co. Ltd., (2010) 5 SCC 294, Suraj Mal  Ram  Niwas
Oil Mills P. Ltd. vs. United India Insurance Co. Ltd. & Anr., (2010) 10  SCC
567, Deokar Exports P. Ltd. vs. New India Assurance  Co.  Ltd.,   (2008)  14
SCC 598,  Export  Credit  Guarantee  Corp.  of  India  Ltd.  vs.  Garg  Sons
International, (2014) 1 SCC 686 and Rust vs. Abbey Life Assurance  Co.  Ltd.
& Anr., (1979) Vol.2 Lloyd’s Law Reports 334.
23)   In reply, Mr. H. Ahmadi,  learned senior  counsel  appearing  for  the
respondent while supporting the        impugned  order  contended  that  the
issue involved in this case  needs  to  be  decided  in  the  light  of  the
principle underlined in  the  rule  known  as   "contra  proferentem  rule”.
According to learned counsel, there is an ambiguity  in  the  language/words
of clauses 4 and 5 of the proposal form  and  since  the  ambiguity  noticed
created some confusion as to what these clauses actually provide and  expect
the respondent to comply at the  time  of  filling  the  proposal  form  for
obtaining the insurance policy, this Court should interpret the  clauses  by
applying the principle underlined in the aforesaid rule in such a  way  that
its benefit would go to the respondent rather than to the appellant. It  was
also his submission that the appellant being the author of the proposal  and
policy are not entitled to claim the benefit  of  the  clauses  of  proposal
form/policy in their favour thereby defeating the rights of  the  respondent
which they have got under the policy to enforce against  the  appellant  for
claiming the compensation.
24)   Learned counsel also contended that the  respondent  had  intended  to
insure all their articles kept in the shop regardless  of  timings  and  the
manner in keeping the articles in their shop. He also pointed out  that  the
respondent having paid the full premium for the articles which  were  valued
at Rs. 2 crore as disclosed by  the  respondent  in  clauses  4  and  5  and
therefore the respondent was entitled to claim compensation for the loss  of
the stolen items (jewelry) treating them as insured and  covered  under  the
policy, issued in their favour.
25)   So far as the connected appeal filed by the respondent-Complainant  is
concerned, the submission of the learned senior counsel for  the  respondent
was that the Commission  erred  in  not  allowing  their  complaint  in  its
entirety despite  availability  of  evidence  on  record.  Learned  counsel,
therefore, prayed for dismissal of the appellant's appeal and  allowing  the
appeal filed by the respondent by enhancing the quantum of  compensation  as
claimed by the respondent in the complaint.
26)   Learned senior counsel also placed  reliance  on  the  same  decisions
which were cited by learned senior counsel for the appellant  and  contended
that the law laid down therein also supports the respondent's case.
27)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case including the written submissions, we find  force  in
the submissions of learned counsel for  the  appellant  (Insurance  company-
Insurer).
28)   The question which arises for consideration in this appeal is  whether
the Commission  was  justified  in  allowing  the  complaint  filed  by  the
respondent  against  the  appellant-Insurance  Company  in  part  and   was,
therefore, justified in awarding a sum of Rs.36,10,211/- to the  respondent.

29)   In order to answer the aforementioned question, clauses 4,  5  of  the
proposal form and clause 12 of the policy need mention infra.
                                     (1)
|4  |WINDOW DISPLAY               |                   |
|   |State the approximate value  |                   |
|   |of any of article of         |Rs.3,50,5000/-     |
|   |Jewellery or Gem stock which |                   |
|   |will be displayed in the     |                   |
|   |window (A pad or tray        |                   |
|   |containing a number of rings |                   |
|   |or other articles to be      |                   |
|   |counted as one article).     |                   |
|   |(Give separate answer for    |                   |
|   |each location).              |                   |
|   |Note : Window display at     |                   |
|   |night is not covered.        |                   |
|5  |STOCK                        |                   |
|   |a. What was (i) the average  |(a)(i)New Shop     |
|   |daily total value of your    |(b)(iii)New shop   |
|   |stock during the past 12     |                   |
|   |months?                      |                   |
|   |(ii)  Will the whole of your |(b) All stocks of  |
|   |stock when on your premises  |Gold, Diamond,     |
|   |be kept in safe at night and |Gems, Silver and   |
|   |at all times when the state  |other precious     |
|   |value and class of stock     |stones-kept outside|
|   |which will left outside      |the                |
|   |safes.                       |safe-Rs.2,00,00,000|
|   |Note : We do  not cover      |(Two crores).      |
|   |stocks kept out of the       |                   |
|   |safe---business hours at     |                   |
|   |night.                       |                   |


                                     (2)

The company shall not be liable for under this policy in respect of

1 to 11………….

12.   Loss or damage to property, insured whilst in window display at  night
or whilst kept out of safe after business hours.”

30)   Before we examine the issue involved in the case, it is  necessary  to
take note of the law laid down on the subject by the Constitution  Bench  of
this Court in General Assurance Society Ltd. vs.  Chandumull  Jain  &  Anr.,
AIR 1966 SC 1644.
31)  The Constitution Bench in this case has explained the  true  nature  of
contract relating to Insurance and laid down the relevant factors which  the
courts should keep in mind while interpreting the contract of insurance.
32)   Justice Hidayatullah, J. (as His Lordship then was) speaking  for  the
Bench in his distinctive style of writing held in Para 11 as under:

“11. A contract of insurance is a species  of  commercial  transactions  and
there is a well established commercial practice to  send  cover  notes  even
prior to the completion of a proper proposal or while the proposal is  being
considered or a policy is in preparation for delivery. A  cover  note  is  a
temporary and limited  agreement.  It  may  be  self  contained  or  it  may
incorporate by reference the terms and  conditions  of  the  future  policy.
When the cover note incorporates the policy in  this  manner,  it  does  not
have to recite the term and conditions, but merely to refer to a  particular
standard policy. If the proposal is for a  standard  policy  and  the  cover
note refers to it, the assured is taken to have accepted the terms  of  that
policy. The reference to the policy and its  terms  and  conditions  may  be
expressed in the proposal or the  cover  note  or  even  in  the  letter  of
acceptance including the cover note. The  incorporation  of  the  terms  and
conditions of the policy may also arise from a combination of references  in
two or more documents  passing  between  the  parties.  Documents  like  the
proposal, cover  note  and  the  policy  are  commercial  documents  and  to
interpret them commercial habits and practice cannot altogether be  ignored.
During the time the cover note operates, the relations of  the  parties  are
governed by its terms and conditions, if any, but more usually by the  terms
and conditions of the policy bargained for  and  to  be  issued.  When  this
happens the terms of the policy  are  incipient  but  after  the  period  of
temporary  cover,  the  relations  are  governed  only  by  the  terms   and
conditions of the policy unless  insurance  is  declined  in  the  meantime.
Delay in issuing the policy makes no difference.  The  relations  even  then
are governed by the  future  policy  if  the  cover  notes  give  sufficient
indication that it would be so. In other respects  there  is  no  difference
between a contract of insurance and any other  contract  except  that  in  a
contract of insurance there is a requirement of  uberrima  fides  i.e.  good
faith on the part of the assured and the contract is likely to be  construed
contra proferentem that is against the  company  in  case  of  ambiguity  or
doubt. A contract is formed when there is an unqualified acceptance  of  the
proposal. Acceptance may be expressed in writing or it may even  be  implied
if the insurer accepts the premium and  retains  it.  In  the  case  of  the
assured, a positive act on his part by  which  he  recognises  or  seeks  to
enforce the policy amounts to  an  affirmation  of  it.  This  position  was
clearly recognised by the assured himself, because he wrote, close upon  the
expiry of the time of the cover  notes,  that  either  a  policy  should  be
issued to him before that period had expired or the cover note  extended  in
time. In interpreting documents relating to a  contract  of  insurance,  the
duty of the court is to  interpret  the  words  in  which  the  contract  is
expressed by the parties, because it is not for the  court  to  make  a  new
contract, however reasonable, if the parties have not  made  it  themselves.
Looking at the proposal, the letter of acceptance and the  cover  notes,  it
is clear that a contract of insurance under the  standard  policy  for  fire
and extended to cover flood, cyclone etc. had come into being.”

33)   Keeping in view the aforesaid principle of law in  mind  and  applying
the same to the facts of the case, we proceed to examine the issue  involved
in this appeal.
34)   Mere perusal of the note appended to clause 4 quoted  above  would  go
to show that the appellant (Insurance Company) had  made  it  clear  in  the
proposal form itself  that  "window display of  articles  at  night  is  not
covered".  This clearly meant that the insurance coverage was given  to  the
articles kept in "window display during day time in business hours"  whereas
insurance coverage was not given to the articles  when  they  were  kept  in
"window display at night".
35)   In other words, if the burglary had been committed during day time  in
business hours and in that burglary, the articles  kept  in  display  window
were stolen  then  in  such  circumstances,  the  appellant  was  liable  to
reimburse the loss to the respondent of  such  stolen  articles  as  insured
articles under the policy. But if the burglary had  been  committed  of  the
articles kept in display window during night  time  (after  business  hours)
then in such circumstances  the  appellant  having  made  it  clear  to  the
respondent in the note in  clause  4  that  they  would  not  be  liable  to
indemnify the loss of  any  such  articles  kept  in  display  window  after
business hours, the respondent was not entitled to  claim  any  compensation
for the loss of any such stolen articles.  In  other  words,  the  insurance
coverage was not extended to such stolen articles under the policy.
36)   Similarly, mere perusal of note appended  to  clause  5  quoted  above
would go to show that the appellant had made it clear in the  proposal  form
itself to the respondent that "stock which is kept out  of  the  safe  after
business hours at night" is not covered  under  the  policy.   This  clearly
meant that "stock kept out of safe during business hours",  if  stolen,  was
insured and given coverage under the policy but if it was kept out  of  safe
after business hours at night, then it was not covered under the policy  and
therefore, the appellant was not liable to indemnify the loss  sustained  by
the respondent of any such stolen articles.
37)   In other words, if the burglary had been committed during day time  in
business hours then the appellant was liable to reimburse the  loss  to  the
respondent of the stolen articles treating them as  insured  articles  under
the policy. But if the burglary had been  committed  of  the  stock/articles
kept out of safe after business hours at night then  in  such  circumstances
the appellant was not liable to  indemnify  the  loss  of  any  such  stolen
articles by virtue of note appended to clause  5.  In  these  circumstances,
the respondent was not entitled to  claim  any  compensation  for  the  loss
sustained in the burglary of any such stolen articles.
38)   In  our  considered  opinion,  there  is  neither  any  ambiguity  nor
vagueness and nor absurdity in the  language/wording  of  note  appended  to
clauses 4 or/and 5.  On the other hand, we find  that  the  language/wording
of the note in both the clauses is plain, clear, unambiguous and creates  no
confusion in the mind of the reader about its meaning. That apart clause  12
of the policy, in clear terms, provides that  the  appellant  would  not  be
liable to indemnify any loss under the policy if such loss or damage to  the
insured property occurs while  the  insured  property  was  kept  in  window
display at night or while it was kept out of safe after business hours.
39)   This takes us to the next submission of  Mr.  Ahmadi,  learned  senior
counsel for  the  respondent  that  we  should  apply  the  rule  of  contra
proferentum  to interpret clauses 4 and 5 because according to him there  is
an ambiguity in the language/wording of clauses 4 and 5  and  secondly,  the
appellant being the author of these clauses has no right to take benefit  of
the ambiguity to defeat the  rights  of  the  respondent.   Learned  counsel
maintained that the interpretation of  the  clauses  should,  therefore,  be
made in such a way that its benefit would go  to  the  respondent  (insured)
for claiming  compensation  from  the  appellants.  We  cannot  accept  this
submission of learned counsel for the respondent for more than one reason.
40)   In Halsbury's Laws of England (fifth edition- Volume  60  Para  105  )
principle of contra proferentem rule is stated thus :
“Contra proferentem rule.  Where there is ambiguity in the policy the  court
will apply the contra proferentem rule.  Where a policy is produced  by  the
insurers, it is their  business  to  see  that  precision  and  clarity  are
attained and, if they fail to do so,  the  ambiguity  will  be  resolved  by
adopting the construction favourable to the insured.  Similarly, as  regards
language which emanates from the insured,  such  as  the  language  used  in
answer to questions in the proposal or in a slip, a construction  favourable
to the insurers will prevail if  the  insured  has  created  any  ambiguity.
This rule, however,  only  becomes  operative  where  the  words  are  truly
ambiguous; it is a rule for resolving ambiguity and  it  cannot  be  invoked
with a view to creating a doubt.  Therefore, where the words used  are  free
from ambiguity in the sense that,  fairly  and  reasonably  construed,  they
admit of only one meaning, the rule has no application.”

41)    The aforesaid rule, in our considered opinion, has no application  to
the facts of this case. It is for the reason  that  firstly,  we  find  that
there is no ambiguity in the language/wording used in clauses 4  and  5.  In
other words, as held above, the language/wording of clauses 4 and 5 and  the
note appended thereto is clear, plain and unambiguous and carries  only  one
meaning. Secondly, in the absence of any ambiguity, the  respondent  is  not
entitled  to  invoke  the  principle  underlined  in  the  rule  of   contra
proferentem for interpreting the clauses of the policy and lastly,  presence
of ambiguity in the language of policy being sine qua non for invocation  of
the contra proferentem rule, which is not present here, we cannot apply  the
rule for deciding the issue involved in case.
42)     It is a settled rule of interpretation that  when  the  words  of  a
statute  are  clear,  plain  or  unambiguous,  i.e.,  they  are   reasonably
susceptible to only one meaning, the courts are  bound  to  give  effect  to
that meaning irrespective of consequences. In other words, when  a  language
is plain and unambiguous and admits of only  one  meaning,  no  question  of
construction of a statue arises, for the  Act  speaks  for  itself.  Equally
well-settled rule of interpretation is that whenever the  NOTE  is  appended
to the main Section, it is explanatory in nature to  the  main  Section  and
explains the true meaning of the main Section and has  to  be  read  in  the
context  of  main  Section   (See  -  G.P.Singh  -Principle   of   Statutory
Interpretation  13th  Edition  page  50  and  172).  This  analogy,  in  our
considered opinion, equally applies while interpreting  the  words  used  in
any contract.
43)   Coming now to the facts of the case, it is not  in  dispute  that  the
burglary  took  place  in  the  respondent's  shop  during  night  hours  on
02.06.1995 when the burglars took away the jewelry  (gold/silver  ornaments)
kept in display window and jewelry lying out of  safe.  The  appellant  was,
therefore, justified  in  contending  that  the  stolen  articles  were  not
covered under the policy by virtue of clauses 4,  5  of  Proposal  Form  and
Clause 12 of the policy and no  liability  could  be  fastened  on  them  to
indemnify the loss of such articles for awarding  any  compensation  to  the
respondent.  Indeed  clauses  4,  5  and  12  were  clearly   attracted   in
appellant’s favour.
44)   We do not agree to  the  submission  of  Mr.  Ahmadi,  learned  senior
counsel  for  the  respondent  that  once  the  respondent  disclosed  their
intention to get their stock (ornaments) valued at Rs 2 Crores insured  with
the appellant by filling the details in Columns 4  and  5  of  the  proposal
form and once  they  paid  the  necessary  premium  to  the  appellant,  the
respondent became entitled to claim  loss  of  the  stolen  items  from  the
appellant treating the stolen items as insured under the  policy  regardless
of note contained in clauses 4 , 5 and clause  12  of  the  policy.  In  our
view, the submission has a fallacy.
45)   Firstly, as mentioned above, if the burglary had  taken  place  during
day time in business hours in respect of the items kept  in  display  window
or out of safe, the appellant was liable to compensate  the  respondent  for
the entire loss suffered by them treating the stolen items as insured  items
under the policy. In other words, if the burglary  had  taken  place  during
business hours then item kept in display window or those lying out  of  safe
were covered under the policy.
46)   Likewise, if the burglary had taken place during night in relation  to
the items  kept  in  the  safe,  then  also  the  appellant  was  liable  to
compensate the loss suffered by the  respondent  in  burglary  treating  the
stolen items as insured items under the policy.
47)   In both the category of cases mentioned above, the appellant  was  not
entitled to rely upon clauses 4, 5 and 12 to avoid their  liability  because
both the instances did not fall either in clause 4 or  clause  5  or  clause
12. However, this was not the case set up  by  the  respondent  against  the
appellant.
48)   On the other hand, it is the case of the respondent that the  burglary
took place at night and the insured items kept in display  window  and  some
lying out of safe were stolen. Due to these facts, clauses 4, 5 and 12  were
attracted against the respondent.
49)   In order to claim benefit of the policy, it was  obligatory  upon  the
respondent to have removed the insured items from  display  window  everyday
after business hours and keep them  inside  safe  during  night  hours  till
opening of the shop next day. Like wise all insured items in side  the  shop
should also have been kept in side the safe everyday  after  business  hours
till opening of the shop  next  day.  It  was,  however,  not  done  by  the
respondent.
50)    A  contract  of  insurance  is  one  of  the  species  of  commercial
transaction  between  the  insurer  and  insured.  It  is  for  the  parties
(insurer/insured) to decide as to what type of insurance they intend  to  do
to secure safety of the goods and how much premium the insured wish  to  pay
to secure insurance of their  goods  as  provided  in  the  tariff.  If  the
insured pays additional premium to the insurer to  secure  more  safety  and
coverage of their insured goods, it is permissible for them to  do  so.   In
this case, the respondent did not pay any  additional  premium  to  get  the
coverage of even two instances mentioned above to avoid rigour  of  note  of
clauses 4, 5 and clause 12.
51)   In view of foregoing discussion, we cannot concur with  the  reasoning
and the conclusion arrived at by the Commission. The  appeal  filed  by  the
insurance company, i.e., Civil Appeal No. 2140 of 2007, therefore,  deserves
to be allowed. It is accordingly allowed. Impugned order is set aside. As  a
consequence thereof, the complaint  filed  by  the  respondent  against  the
appellant out of which this appeal arises is dismissed. No costs.
Civil Appeal No. 5141 of 2007
In the light of the order passed in Civil Appeal No. 2140  of  2007,  it  is
not necessary to examine the merits of the claim filed by  the  Complainant,
which has been rendered infructuous. The appeal thus fails and is  dismissed
as having rendered infructuous.  No costs.


.……...................................J.
                                     [J. CHELAMESWAR]


                     ………..................................J.
                                      [ABHAY MANOHAR SAPRE]
      New Delhi,
      January 13, 2016.
-----------------------
32

(i) Since the students have completed 4½ years of their MBBS Course and are likely to complete their course some time in June this year, notwithstanding the decision of this Court in Medical Council of India Vs. JSS Medical College and Another [(2012) 5 SCC 628], the students may be allowed to complete their course and obtain a degree in case they successfully complete the course. This order is being passed only on peculiar facts of this case. (ii) Since the College has also not complied with the orders passed by this Court in the above cited case and has permitted the students to continue their studies, to send a message to the College and other medical colleges, we are of the view that it would be appropriate if the JSS Medical College is directed to deposit an amount of Rs.5,00,00,000/-(Rupees five crores only) in the Registry of this Court within four weeks from today. We order accordingly and observe that the conduct of the JSS Medical College is most unfortunate. The amount of Rs.5,00,00,000/-(Rupees five crores only) so deposited towards costs shall not be recovered in any manner from any student or adjusted against the fees or provision of facilities for students of subsequent batches. (iii) Again, to send a strong message to the JSS Medical College and other medical colleges, we direct that for the next academic year, i.e., 2016-17, the JSS Medical College shall be permitted to admit only 150 students as against the sanctioned strength of 200.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.195 OF 2016
                   (Arising out of SLP(C) No.9228 of 2012)


MEDICAL COUNCIL OF INDIA                          APPELLANT(s)

                          VERSUS

JSS MEDICAL COLLEGE & ANR.                   RESPONDENT(s)



                                  O R D E R



      Leave granted.
      We have heard learned counsel for  the  parties  as  well  as  learned
counsel for the students (interveners).
      After hearing all the parties, we are  of  the  opinion  that  in  the
interest of the students as well as the Medical Council of  India  and  also
to send a message across to  the  JSS  Medical  College  and  other  medical
colleges, the following directions are passed:
(i)         Since the students have completed 4½ years of their MBBS  Course
and are likely to complete  their  course  some  time  in  June  this  year,
notwithstanding the decision of this Court in Medical Council of  India  Vs.
JSS Medical College and Another [(2012) 5 SCC  628],  the  students  may  be
allowed  to  complete  their  course  and  obtain  a  degree  in  case  they
successfully complete the course.   This  order  is  being  passed  only  on
peculiar facts of this case.
(ii)  Since the College has also not complied  with  the  orders  passed  by
this Court in the above  cited  case  and  has  permitted  the  students  to
continue their studies, to send a message to the College and  other  medical
colleges, we are of the view  that  it  would  be  appropriate  if  the  JSS
Medical College is directed to deposit an amount of  Rs.5,00,00,000/-(Rupees
five crores only) in the Registry of  this  Court  within  four  weeks  from
today.  We order accordingly  and  observe  that  the  conduct  of  the  JSS
Medical College is most unfortunate.  The amount of  Rs.5,00,00,000/-(Rupees
five crores only) so deposited towards costs shall not be recovered  in  any
manner from any student  or  adjusted  against  the  fees  or  provision  of
facilities for students of subsequent batches.
(iii) Again, to send a strong message to the JSS Medical College  and  other
medical colleges, we direct that for the next academic year, i.e.,  2016-17,
the JSS Medical College shall be permitted to admit  only  150  students  as
against the sanctioned strength of 200.




      With the above directions, the appeal stands disposed of.
      Pending application, if any, also stands disposed of.

                                             .............................J.
                                    (MADAN B. LOKUR)

                                             .............................J.
                                    (R.K. AGRAWAL)
NEW DELHI
JANUARY 12, 2016

question on the true construction of some of the provisions of the Hindu Law Women’s Rights Act, 1933 (Mysore Act No.X of 1933). = For a proper appreciation of the controversy at hand, we set out the relevant Sections of the Hindu Law Women’s Rights Act, 1933 (Mysore Act No.X of 1933). “Part I INHERITANCE 4. Order of succession:- (1) The succession to a Hindu male dying intestate shall, in the first place, vest in the members of the family of the propositus mentioned below, and in the following order:- i) the male issue to the third generation ; ii) the widow ; iii) daughters ; iv) daughter’s sons XXX XXX XXX 8. Certain females entitled to shares at partition- (1) (a) At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them. (b) At a partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them. (c) Sub-sections (a) and (b) shall also apply mutatis mutandis to a partition among other co-parceners in a joint family. (d) Where joint family property passes to a single co-parcener by survivorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sub-sections. XXX XXX XXX .10. What is “stridhana” – “Stridhana” means property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate. “Stridhana” includes :- XXX XXX XXX XXX (g) property taken by inheritance by a female from another female and property taken by inheritance by a female from her husband or son, or from a male relative connected by blood except when there is a daughter or daughter’s son of the propositus alive at the time the property is so inherited. All gifts and payments other than or in addition to, or in excess of, the customary presents of vessels, apparel and other articles of personal use made to a bride or bridegroom in connection with their marriage or to their parents or guardians or other person on their behalf, by the bridegroom, bride or their relatives or friends, shall be the stridhana of the bride.”= One of the said daughters namely Sunanda filed a suit against defendant No.1 – her mother, defendant Nos. 2 and 3 – her sisters, and defendant No.4 – the purchaser, being O.S. No.46 of 1994. After setting out the relevant facts, the Civil Judge, Senior Division by judgment dated 28.3.2005 framed as many as 12 issues and ultimately decided on application of Section 10(2)(g) of the 1933 Act that the plaintiff would be entitled to a 1/4th share in the scheduled properties and the suit was decreed accordingly. In a first appeal filed by defendant No.1, the first Appellate Court agreed with the conclusions both on facts as well as law with the trial court. Accordingly, the first appeal was dismissed on 5.8.2005.= One Venkatsubbaiah had two sons Mahabalaiah and Thimmappa. After the death of Venkatsubbaiah, the two sons and the wife of Mahabalaiah constituted a joint Hindu family. Mahabalaiah being the elder brother was the Karta of the said family. In the year 1940-1941, Mahabalaiah and Thimmappa partitioned and divided their joint family properties and got possession of their respective shares. Thimmappa died on 9.10.1952, leaving behind him his widow one Gowramma and three daughters. The widow has executed a will on 9.5.1990 bequeathing her share in the joint family property in favour of only one of the three daughters namely the third defendant. The 4th defendant has been joined in the suit inasmuch as the first defendant widow had sold one of the scheduled items of the suit property namely item No.3 to the said 4th defendant during the pendency of the suit.= A recent view of Section 8(1)(d) in Smt. Ramakka and others v. Smt. Thanamma since deceased by LR, P. Srinivas and Others, ILR 2014 Karnataka 1335, has been taken by a Division Bench of the Karnataka High Court. While construing Section 8(1)(d), the Division Bench has held:- “When the coparcenary property passes to a sole surviving coparcener, provision has been made in clause (d) of Section 8(1). This clause, in protecting the rights of females, had necessarily to give females the right to share in the coparcenary property even if there be no partition at all, because, on passing of property to a sole surviving coparcener, there could not possibly be any partition sought by the male members of the coparcenary body. The right conferred by clause (d) is, therefore, an independent right and not connected with the rights granted to the females under clauses (a), (b) and (c). The females who are to get benefit are all those to whom a right to a share in the joint family property would have accrued if there had been a partition either under clause (a), or clause (b) or clause (c). The language of clause (d) has to be interpreted as laying down that right to shares will vest in all females of the joint Hindu family who would have possibly received the right to a share if at any earlier time there had been partition in the family in any of the three manners laid down in clauses (a), (b) and (c). It is significant that clause (d) gives a right independent of a partition and its scope should not be restricted by assuming a partition.” This is the correct view of the law on Section 8(1)(d), and we endorse it. A partition of joint family property among brothers is expressly mentioned in Section 8(1)(b). Therefore, upon partition of joint family property between Thimmappa and his older brother, it is only their mother, their unmarried sisters and widows and unmarried daughters of their pre-deceased undivided brothers who have left no male issue who get a share under the Section. Unlike sub-section (a), unmarried daughters of Thimmappa do not get any share at the partition between Thimmappa and his brother. The ground on which the judgments below rested, namely Section 10(1)(g), was not even sought to be supported by Shri Bhat. And for a very good reason. In order that Section 10(1)(g) apply, first and foremost the property referred to is “stridhana” which is defined as property of every description belonging to a Hindu female other than property in which she has by law or under the terms of an instrument only a limited estate. Under Section 10(1)(g) it is only property taken by inheritance by a female from her husband that is included in stridhana. This would not include the unmarried daughters as property taken by inheritance by a female from her father is not included. In this view of the matter, Shri Hegde is right in saying that the succession to a Hindu male dying intestate will vest only in the widow under Section 4(1)(ii) to the exclusion of the daughters who are mentioned in a subsequent clause i.e. clause (iii) by virtue of the expression “in the following order”.=This being the case, it is clear that the appeals will have to be allowed and the judgments of the courts below set aside. The suit will stand dismissed as a consequence.

                                 REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.  174-175  OF 2016
           (Arising out of S.L.P. (Civil) Nos.24809-24810 of 2008)


L. GOWRAMMA (D) BY LR.                      …APPELLANT


                                   VERSUS

SUNANDA (D) BY LRS. & ANR.                  ...RESPONDENTS




                        J U D G M E N T



R.F. Nariman, J.



Delay condoned in filing the special leave petitions.



Leave granted.



3.    These appeals raise an interesting question on the  true  construction
of some of the provisions of the Hindu Law Women’s Rights Act, 1933  (Mysore
Act No.X  of  1933).   One  Venkatsubbaiah  had  two  sons  Mahabalaiah  and
Thimmappa.  After the death of  Venkatsubbaiah, the two sons  and  the  wife
of Mahabalaiah constituted a joint  Hindu  family.   Mahabalaiah  being  the
elder brother was the Karta of the said  family.   In  the  year  1940-1941,
Mahabalaiah  and  Thimmappa  partitioned  and  divided  their  joint  family
properties and got possession of their respective  shares.   Thimmappa  died
on  9.10.1952,  leaving  behind  him  his  widow  one  Gowramma  and   three
daughters.  The widow has executed a will on 9.5.1990 bequeathing her  share
in the joint family property in favour of only one of  the  three  daughters
namely the third defendant.  The 4th defendant has been joined in  the  suit
inasmuch as the first defendant widow had sold one of  the  scheduled  items
of the suit property namely item No.3 to the said 4th defendant  during  the
pendency of the suit.



4.    One of  the  said  daughters  namely  Sunanda  filed  a  suit  against
defendant No.1 – her mother, defendant Nos. 2  and  3  –  her  sisters,  and
defendant No.4 – the purchaser, being  O.S. No.46  of  1994.  After  setting
out the relevant facts, the Civil Judge, Senior Division by  judgment  dated
28.3.2005 framed as many as 12 issues and ultimately decided on  application
of Section 10(2)(g) of the 1933 Act that the plaintiff would be entitled  to
a 1/4th  share  in  the  scheduled  properties  and  the  suit  was  decreed
accordingly.



5.    In a first appeal filed by defendant No.1, the first  Appellate  Court
agreed with the conclusions both on facts as well  as  law  with  the  trial
court.  Accordingly, the first appeal was dismissed on 5.8.2005.



6.    Thereafter, a review petition was filed  and  by  the  judgment  dated
24.11.2007, the review was dismissed but  this  time  adverting  to  Section
8(1)(d) of the 1933 Act and decreeing the suit with reference  to  the  said
Section.  The review also was accordingly dismissed.



7.    Shri R.S. Hegde, learned counsel appearing on behalf of the  appellant
has urged before us that the applicable Section of the 1933 Act  is  Section
4, and not Sections 8 and 10, and accordingly  the  succession  of  a  Hindu
male dying intestate vests property only in the widow to  the  exclusion  of
the daughters and hence the plaintiff’s suit should have been  dismissed  on
this ground.



8.    On the other hand,  Shri  S.N.  Bhat,  learned  counsel,  invited  our
attention to Section 8(1)(d) of the Act and according  to  him  since  joint
family  property  passed  to  Thimmappa  who  was  a  single  coparcener  by
survivorship,  on  partition  in  1940-1941,  all  the  classes  of  females
mentioned in Section 8 would be entitled to a share  in  the  said  property
which would include not only his widow but also his unmarried daughters.



9.    For a proper appreciation of the controversy at hand, we set  out  the
relevant Sections of the Hindu Law Women’s  Rights  Act,  1933  (Mysore  Act
No.X of 1933).

      “Part I



                 INHERITANCE



4. Order of succession:-



(1)  The succession to a Hindu male dying  intestate  shall,  in  the  first
place, vest in the members of the family of the propositus mentioned  below,
and in the following order:-

i)    the male issue to the third generation ;

ii)   the widow ;

iii)  daughters ;

iv)   daughter’s sons



XXX              XXX              XXX



8.    Certain females entitled to shares at partition-



(1) (a) At a partition of joint family property between  a  person  and  his
son or sons,  his  mother,  his  unmarried  daughters  and  the  widows  and
unmarried daughters of his predeceased undivided sons and brothers who  have
left no male issue shall be entitled to share with them.

(b)   At a partition of joint family property among brothers, their  mother,
their unmarried sisters and the widows  and  unmarried  daughters  of  their
predeceased undivided  brothers  who  have  left  no  male  issue  shall  be
entitled to share with them.

(c)   Sub-sections (a) and (b)  shall  also  apply  mutatis  mutandis  to  a
partition among other co-parceners in a joint family.

(d)   Where  joint  family  property  passes  to  a  single  co-parcener  by
survivorship, it shall so pass  subject  to  the  right  to  shares  of  the
classes of females enumerated in the above sub-sections.



XXX         XXX              XXX



.10.  What is “stridhana” –



“Stridhana” means  property  of  every  description  belonging  to  a  Hindu
female, other than property in which she has, by law or under the  terms  of
an instrument, only a limited estate.

“Stridhana” includes :-



      XXX        XXX              XXX        XXX



(g)   property taken by inheritance by a  female  from  another  female  and
property taken by inheritance by a female from her husband or son,  or  from
a male relative connected by blood  except  when  there  is  a  daughter  or
daughter’s son of the propositus alive  at  the  time  the  property  is  so
inherited.





All gifts and payments other than or in addition to, or in  excess  of,  the
customary presents of vessels, apparel and other articles  of  personal  use
made to a bride or bridegroom in connection with their marriage or to  their
parents or guardians or other person on their  behalf,  by  the  bridegroom,
bride or their relatives or friends, shall be the stridhana of the bride.”



10.   A cursory reading of Section  8  would  reveal  that  various  females
mentioned in the Section would be  entitled  to  a  share  of  joint  family
property in the circumstances mentioned therein.  Under Sections 8(1)(a)  to
8(1)(c) there has necessarily first to be a partition in  the  circumstances
mentioned in each of the said sub-sections  whereas  under  sub-section  (d)
what is required is that joint family properties should  pass  to  a  single
coparcener by survivorship.  If this condition of  sub-clause  (d)  is  met,
then all the women mentioned in sub-clauses (a) to (c) would be entitled  to
a share therein.



11.   Shri Bhat relied upon a judgment delivered by B.P. Singh,J. in  Byamma
v. Ramdev reported in I.L.R. 1991 KAR 3245. After setting out Section  8  of
the 1933 Act, it was held:-

“It is well settled that devolution of joint family property, which come  to
the hands of a son from his father or grand-father or great-grand-father  as
unobstructed heritage is governed  by  the  Rule  of  Survivorship.  A  male
coparcener acquires right to such property by birth. This is different  from
property that may come to the hands of a  coparcener  in  which  he  has  no
right by birth. This is what is  known  as  obstructed  heritage,  and  such
property devolve by succession and not by survivorship. Such  a  distinction
is well known in Hindu Law. Therefore, when Section 8(1)(d)  of  the  Mysore
Act  refers  to  the  properties  passing  on  to  a  single  coparcener  by
survivorship, it has reference to the ancestral  properties  which  come  to
his hands upon partition or otherwise.



It is also well settled that if a coparcener  dies,  his  interest  devolves
upon other coparceners by survivorship. As long as the joint  family  is  in
existence,  all  the  coparceners  jointly  own  all  the  properties.  Each
coparcener is a full owner of each property owned by the joint  family.  The
effect of partition is severance of  status  and,  as  a  consequence,  each
coparcener becomes entitled to separate  possession  and  enjoyment  of  his
share in the joint family properties. Partition by itself does not create  a
right because the right of a coparcener existed even  before  partition.  It
only brings about demarcation of his  interest  with  a  right  to  separate
possession and enjoyment. It is therefore, not correct to state that when  a
coparcener, upon partition, gets his share in the joint  family  properties,
it does not come to him by survivorship. The  right  which  accrues  to  the
coparcener is by operation of the Rule of  Survivorship  and  the  partition
only demarcates his share  in  the  joint  family  properties.  As  observed
earlier, unobstructed heritage always devolves by operation of the  Rule  of
Survivorship and there is no exception to this Rule. It has  therefore  been
held that where a father disposes of by a Will, his interest  in  the  joint
family properties in favour of his son, the properties in the hands  of  the
son still retain the  character  of  coparcenary  property,  and  not  self-
acquired property.



I, therefore, hold that the properties to which Chowdappa  became  entitled,
upon partition passed on to him by survivorship. I find no substance in  the
contention raised on behalf of the respondents that it passed on to  him  by
reason of partition and not by survivorship.



In view of Section 8(1) of the Act, there can be  no  doubt  that  a  single
coparcener such as Chowdappa took the ancestral  property,  subject  to  the
right to shares of female members of the joint family enumerated in  Clauses
(a), (b) or (c) of Section 8(1) of the Mysore Act. The  plaintiff,  being  a
widow of a pre-deceased son, was entitled to a share equal to  one  half  of
the share to which her husband would have been entitled  if  he  were  alive
[vide Section 8(1) (a) of  the  Mysore  Act].  I  therefore  hold  that  the
plaintiff is entitled to claim one half  of  the  share  which  her  husband
could have claimed if he was alive. In the instant case  her  husband  would
have got half share in the properties in a partition between his father  and
himself in  the  year  1946  when  Chowdappa  became  a  single  coparcener.
Consequently,  she  is  entitled  to  1/4th  share  in  the  suit   schedule
properties.” (at para nos.10, 11, 12 and 17)



12.   Unfortunately for Shri Bhat,  this  Court  in  Sathyaprema  Manjunatha
Gowda (Smt) v. Controller of Estate Duty, Karnataka, (1997) 10 SCC 684,  has
taken a view which is directly contrary to the view of the single  Judge  of
the Karnataka High Court.



13.   In Sathyaprema’s case (supra), the question posed was whether  in  the
facts and circumstances of the case the  Tribunal  was  correct  in  holding
that neither the unmarried daughter nor the wife of  the  deceased  had  any
interest in the joint family property of the deceased while  he  was  alive.
This Court stated that the only question for consideration  is  whether  the
estate left by the husband and father of the widow  and  unmarried  daughter
respectively on partition was  obtained  by  survivorship  applying  Section
8(1)(d) of the Act.



14.   This Court exhaustively  discussed  the  meaning  of  the  expressions
“survivor” and “survivorship” and ultimately held:-



“Here, we are concerned with Manjunatha Gowda who had obtained  property  at
a partition with coparceners. Survivorship, therefore, is the living of  one
of two or more persons after the death of  the  others  having  interest  to
succeed in the  property  by  succession.  The  shares  in  the  coparcenery
property changes with death or birth of other coparceners. However,  in  the
case of survivorship it is not  of  the  same  incidence.  He  received  the
property at the partition without there being any other  coparcener.  It  is
an  individual  property  and,  therefore,  he  did  not   receive   it   by
survivorship but by virtue of his status being a  coparcener  of  the  Hindu
Joint Family along with his father and brothers.



Under these circumstances, the conclusion reached by  the  High  Court  that
since it is by partition, not by survivorship,  clause  (d)  of  sub-section
(1) of Section 8 does not get attracted, is not (sic)  correct.   No  doubt,
the learned counsel relied upon the  judgment  of  this  Court  in  Nagendra
Prasad v. Kempananjamma [AIR 1968 SC 209] which was also considered  by  the
High Court in the impugned judgment. This Court therein has  explained  that
the object of Section 8(1)(d) is to give a right to claim  a  share  in  the
joint family property to all females referred  to  in  clauses  (a)  to  (c)
thereof.  Merely because partition by one of the coparceners  under  clauses
(a) to (c) is a condition for a class of family members entitled to a  share
in the property, it does not apply to a case where class of  family  members
entitled under clause 8(1)(d) since it  stands  altogether  on  a  different
footing and, therefore, partition is not a condition precedent for  claiming
a share by a class of family members enumerated in Section  8(1)(a)  of  the
Act.  But that principle has no bearing to the facts in this  case  for  the
reason that the property held was not received by survivorship.



Under  these  circumstances,  family  members   enumerated   under   Section
8(1)(d) are not entitled to a share in the  estate  left  by  the  deceased.
Thus we do not find any illegality in the  view  taken  by  the  High  Court
warranting interference.” (at paragraph nos.13-15)



15.   In fact, this follows from a reading of Section 8.   Whereas  Sections
8(1)(a)(b) and (c) refers to  a  partition  among  coparceners  in  a  joint
family, sub-section (d) refers to property passing to  a  single  coparcener
only by survivorship.  In this behalf, in Nagendra Prasad v.  Kempananjamma,
 [1968] 1 SCR 124, this Court by a majority judgment held:-



“This intention can only be given effect to on the  basis  that  clause  (d)
does not restrict itself to finding out females on the basis of  an  assumed
partition between the last two male coparceners.   It  is  significant  that
clause (d) gives a right independently of a partition and we do not see  why
its scope should be restricted by assuming a partition.” (at page No.128).



16.   In fact, even the dissenting Judge held:-



“Clause  (d)  applies  to  a  case  when  the  family  property  passes   by
survivorship to a sole surviving coparcener. In such a case there can be  no
partition, as is the case under clause  (a)  or  (b)  or  (c).  Indeed,  the
property becomes incapable of partition and but for  clause  (d)  no  female
relative would have any right to a share. To save such a result  clause  (d)
provides that the rights of the female relatives should not be lost only  by
reason of the property  passing  to  the  sole  surviving  coparcener.  Sub-
section 5, furthermore, gives such  female  relatives  as  fall  under  sub-
section 1 a right to have their shares separated and  thus  makes  them  co-
sharers subject to whose rights the  sole  surviving  coparcener  takes  the
property. Therefore, whereas under clauses  (a),  (b)  and  (c)  the  rights
fluctuate according to the position of the female relatives  in  the  family
when the partition takes place there is no  such  uncertainty  in  the  case
falling under  clause  (d)  as  the  sole  surviving  coparcener  takes  the
property subject to the right to shares of female  relatives  falling  under
the provisions of clause (a) or (b) or (c). Such is the  scheme  of  Section
8(1).”



17.   The dissenting Judge basically dissented on the point that under  sub-
clause (d), a partition has to  be  assumed  because  it  is  only  on  such
assumption that females on whom  a  right  to  share  is  conferred  can  be
ascertained.  It is clear, therefore,  that  Section  8(1)(d)  can  have  no
application to a case  where  joint  family  property  passes  to  a  single
coparcener not by survivorship but by partition.



A recent view of  Section  8(1)(d)  in  Smt.  Ramakka  and  others  v.  Smt.
Thanamma since deceased by LR, P. Srinivas and Others,  ILR  2014  Karnataka
1335, has been taken by a  Division  Bench  of  the  Karnataka  High  Court.
While construing Section 8(1)(d), the Division Bench has held:-



“When the coparcenary  property  passes  to  a  sole  surviving  coparcener,
provision has been made in clause (d) of  Section  8(1).   This  clause,  in
protecting the rights of females, had necessarily to give females the  right
to share in the coparcenary property even if there be no partition  at  all,
because, on passing of property to a sole surviving coparcener, there  could
not possibly be any partition sought by the male members of the  coparcenary
body.  The right conferred by  clause  (d)  is,  therefore,  an  independent
right and not connected  with  the  rights  granted  to  the  females  under
clauses (a), (b) and (c).  The females who are to get benefit are all  those
to whom a right to a share in the joint family property would  have  accrued
if there had been a partition either under clause  (a),  or  clause  (b)  or
clause (c).  The language of clause (d) has  to  be  interpreted  as  laying
down that right to shares will vest  in  all  females  of  the  joint  Hindu
family who would have possibly received the right  to  a  share  if  at  any
earlier time there had been partition in the family  in  any  of  the  three
manners laid down in clauses (a), (b)  and  (c).   It  is  significant  that
clause (d) gives a right independent of a partition  and  its  scope  should
not be restricted by assuming a partition.”



      This is the correct view  of  the  law  on  Section  8(1)(d),  and  we
endorse it.



18.   There is also another way of  looking  at  the  issue  raised  in  the
present appeals.  A partition of joint family  property  among  brothers  is
expressly mentioned in Section 8(1)(b).  Therefore, upon partition of  joint
family property between Thimmappa and his older brother, it  is  only  their
mother, their unmarried sisters and widows and unmarried daughters of  their
pre-deceased undivided brothers who have left no male issue who get a  share
under  the  Section.   Unlike  sub-section  (a),  unmarried   daughters   of
Thimmappa do not get any share at the partition between  Thimmappa  and  his
brother.



19.   The ground  on  which  the  judgments  below  rested,  namely  Section
10(1)(g), was not even sought to be supported by Shri Bhat. And for  a  very
good reason. In order that Section 10(1)(g) apply, first  and  foremost  the
property referred to is “stridhana” which is defined as  property  of  every
description belonging to a Hindu female other than  property  in  which  she
has by law or under the terms  of  an  instrument  only  a  limited  estate.
Under Section 10(1)(g) it is only property taken by inheritance by a  female
from her husband that is included in stridhana. This would not  include  the
unmarried daughters as property taken by inheritance by a  female  from  her
father is not included.



20.   In this view of the matter, Shri Hegde is right  in  saying  that  the
succession to a Hindu male dying intestate  will  vest  only  in  the  widow
under Section 4(1)(ii) to the exclusion of the daughters who  are  mentioned
in a subsequent clause i.e. clause (iii) by virtue  of  the  expression  “in
the following order”.  This being the case, it is  clear  that  the  appeals
will have to be allowed and the judgments of the  courts  below  set  aside.
The suit will stand dismissed as a consequence.



                                             ……………………J.

                                             (Kurian Joseph)





                                             ……………………J.

                                             (R.F. Nariman)

New Delhi;

January 12, 2016.