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(2) [1897] A. C. 22.

under sections 109 and 110 of the Code of Civil Procedure. The appeal Court, it will be observed, reversed the decision of the trial Judge and decided the appeal against the Company on two grounds only, namely, (1) that the Company had by the conduct of its two members abandoned its right to challenge the forfeiture, and (2) that the form of the order could not be supported as one validly made under section 38 of the Indian Companies Act. The learned AttorneyGeneral, appearing in support of this appeal, has assailed the soundness of both these grounds. The learned Attorney-General contends, not without considerable force, that having, in agreement with the trial Coury, held that no plea of acquiescence, waiver or estoppel had been established in this case, the appeal Court should not have allowed the Mills to raise the question of abandonment of right by the Company, inasmuch as no such plea of abandon- ment had been raised either in the Mills' affidavit in opposition to the Company's application or in the Mills grounds of appeal before the High Court. Apart from this, the appeal Court permitted the Mills to make out a plea of abandonment of right by the Company ,as distinct from the pleas of waiver, acquiescence and estoppel and sought to derive support for this new plea from the well known cases of Prendergast v. Turton(1), Clark & Chapman v. Hart(2) and Jones v. North Vancouver Land and Improvement, Co.(3). A perusal of the relevant facts set out in the several reports and the respective judgments in the above cases will clearly indicate that apart from the fact that some of them related to collieries which were treated on a special footing, those cases were really cases relating to waiver or acquiescence or estoppel. Indeed in Clarke's case (2) while Lord Chelms- ford referred to the decision in Prendergast's case(1) as a case of abandonment of right, Lord Wensleydale read it as an instance of acquiescence and estoppel. Unilateral act or conduct of a person, (1) 62 E.R. 807. (3) [1910] A.C. 317.

(2) I.L.R. [1941] Mad. 175.

apply by analogy is article 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation.

The result, therefore, is that this appeal must succeed. We set aside the judgment and decree of the High Court in appeal-and restore the order of the trial Court. The appellant will be entitled to the costs of the appeal in the High Court as well as in this Court.

BOSE J.-I agree with the conclusions of my learned brothers and also with their reasoning generally but lest it be inferred that I am assenting to a far wider proposition than is actually the case, I deem it advisable to clarify my position about abandonment and waiver. Though the usage of these words in cases of the present kind has the sanction of high authority, they are, in my opinion, inapt and mislead- ing in this class of case. In order to appreciate this it will be necessary to hark back to first principles. In the first place, waiver and abandonment are in their primary context unilateral acts. Waiver is the intentional relinquishment of a right or privilege. Abandonment is the voluntary giving up of one's rights and privileges or interest in property with the intention of never claiming them again. But except where statutory or other limitations intervene, unilateral acts never in themselves effect a change in legal status because it is fundamental that a man cannot by his unilateral action affect the rights and interests of another except on the basis of statutory or other authority. Rights and obligations are normally inter- twined and a man cannot by abandonment per se of his rights and interests thereby rid himself of his own obligations or impose them on another. Thus, there can be no abandonment of a tenancy except on statutory grounds (as, for example, in the Central Provinces Tenancy Act, 1920) unless there is acceptance, express or implied, by the other side. It may, for example in a case of tenancy, be to the landlord's interest to keep the tenancy alive and so also in the case of shares of a company. It may be to the interests of the company and the general body of shareholders to refrain from forfeiture if, for example, the value of unpaid calls exceeds the market value of the shares. Such a position was envisaged in Garden Gully United Quartz Mining Co. v. Hugh McLister(1). So also with waiver. A long catena of illustrative cases will be found collected in B. B. Mitra's Indian Limitation Act, Thirteenth Edition, pages 447 and

448. This fundamental concept brings about another repercussion. Unless other circumstances intervene, there is a locus paenitentiae in which a unilateral abandonment or waiver can be recalled. It would be otherwise if the unilateral act of abandonment in itself, and without the supervention of other matters, effected a change in legal status. In point of fact, it is otherwise when, as in the statutory example I have quoted, the law intervenes and determines the tenancy. It is, therefore, in my opinion, fundamental that abandonment and waiver do not in themselves unilaterally bring about a change in legal status. Something else must intervene, either a statutory mandate or an act of acceptance, express or implied, by another person, or, as Lord Chelmsford put it in Clarke & Chapman v. Hart(1), acts which are equivalent to an agreement or a licence, or an estoppel in cases where an estoppel can be raised.