MT JANAK DULARI Vs. SRI GOPAL

JUDGEMENT

(1.) This is a first appeal by Mt. Janak Dulari, the plaintiff, whose suit has been dismissed on a preliminary issue of law. Mt. Janak Dulari claimed that she was entitled to one quarter share of the family property which had been held by her husband who died on 26 July 1937. She claimed this alternatively, either on the ground that her husband died possessed of this one quarter share as his separate property, or that, if the family was not proved to have been divided, the plaintiff was under Act 18 of 1937 entitled to have this one-quarter share. The written statement pleaded that Act 18 of 1937 was in no way valid and enforceable. It had not been validly passed by the Legislature. The Government or the Legislature had no power to enforce such an Act.

(2.) For some reason not stated no issue was framed on the question of whether the husband of the plaintiff died joint or separate. An issue was framed, No. 1: Whether the Act 18 of 1937 was not validly passed by the Legislature and is unenforceable anc8 not binding upon defendants 1, 2 and 4.

(3.) In the Court below the plaintiff apparently relied on Section 292, Government of India Act, 1935, as applying to this Act, The Hindu Women's Eight to Property Act (Act 18 of 1937). It was pointed out on behalf of the defendants that Act 18 of 1937 was passed by the Indian Legislature before 1 April 1937, the date on which Part 3, Government of India Act of 1935 came into force, and that the assent of the Governor-General was given to this Bill on 14 April 1937, after 1st April 1937. It was therefore argued for the defence that this Act was not a law in force immediately before the commencement of Part 3, Government of India Act and therefore that Section 292 did not apply to Act 18 of 1937. The Court below accepted this argument and held that Act 18 of 1937 was not valid and therefore dismissed the suit of the plaintiff. In this first appeal Mr. Banerji for the appellant has not based his argument on Section 292, Government of India Act, 1935, but he has based it on the provisions of Section 317 of that Act and Schedule 9 to that Act. There is only a brief mention in the judgment of the Court below : "Nor does Section 317 too of the Government of India Act 1935, help her in any way," and there is no mention at all of Schedule 9 of that Act. Therefore the point now raised has not been considered by the Court below. Under the Government of India Act of 1919, Part 6, Section 63 onwards dealt with Indian legislation and the powers of the Indian Legislature. It is for this defence to show that those powers have terminated and that the Legislature did not have power to pass this Act 18 of 1937. It is true that Section 321, Government of India Act, 1935, states that the Government of India Act shall be repealed to the extent specified in Col. 3 of Schedule 10 and that Schedule 10 does provide for the repeal of the Act including Part 6. But there is another Section of the Government of India Act of 1935, Section 317, which provides as follows: (1) The provisions of the Government of India Act set out, with amendments consequential on the provisions of this Act, in Schedule 9 to this Act (being certain of the provisions of that Act relating to the Governor-General, the Commander-in-Chief, the Governor-General's Executive Council and the Indian Legislature and provisions supplemental to those provisions) shall, subject to those amendments, continue to have effect notwithstanding the repeal of that Act by this Act: Provided that nothing in the said provisions shall, affect the provisions of the last but one preceding Section.