Himachal Pradesh High Court
Roshan Lal (Deceased) Through His Lrs vs Pritam Singh & Others on 1 March, 2018
Author: Sanjay Karol
Bench: Sanjay Karol, Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
RSA No. 258 of 2012-F and Cross Objections No. 417 of 2012.
Judgment reserved on : 20.9.2017
Re-heard on : 26.2.2018
Date of Decision : March 1 , 2018
Roshan Lal (deceased) through his LRs ... Appellants
r Versus
Pritam Singh & others ...Respondents
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice, The Hon'ble Mr. Justice, Dharam Chand Chaudhary, Judge.
Whether approved for reporting? Yes. 1 For the appellant : Mr. Vivek Singh Thakur-II, Advocate, for the appellants/non-objector.
For the respondent : Mr. Ajay Sharma and Mr. Kishore Pundir, Advocates, for respondents No. 1 & 6 and also for the Objector.
Justice Sanjay Karol, ACJ.
The difference of opinion between two learned Judges of this Court, sitting singly in separate proceedings, Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 2led the matter to be placed before us for answering the following question:
.
"Whether the provisions of Hindu Succession Act apply to agricultural lands?"
2. In Baldev Parkash & others vs. Dhian Singh & others, Latest HLJ 2008 (HP) 599, the view taken is that the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as the 'Succession Act'), are not applicable to 14th agricultural rland, whereas, vide judgment dated October, 2015, rendered in this very case (RSA No. 258 of 2012), by relying upon the decision of the apex Court in Vaijanath & others vs. Guramma & another, (1999) 1 SCC 292, a contrary view stands taken.
3. The question at best can be answered by examining the Constitutional provisions qua competence of the Central Government to enact the laws, pertaining to "succession" of agricultural land. In fact, legislative competence of the Central Government is the sole question, which arises for consideration in the present appeal.
4. The sale deed dated 14.3.2005 executed by defendant No. 2 in favour of defendant No. 1 is directly in ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 3 attack by the plaintiff, claiming preferential rights by virtue of Section 22 of the Succession Act. Plaintiff filed a suit .
challenging the sale deed for the reason that he had a preferential right to acquire the interest transferred in terms of the instrument of sale. The suit came to be decreed, but in the appeal (RSA), defendant No. 1 by taking recourse to the decision already rendered by the learned Single Judge in Baldev Parkash (supra), pressed for setting aside the decree on the ground that the Succession Act, being a Central Legislation, would not and does not apply to agricultural land which falls purely within the domain of the State.
Unable to persuade himself to agree with the view taken in Baldev Parkash (supra), after relying upon the decision rendered by the apex Court in Vaijanath (supra), the learned Single Judge referred the matter to the Division Bench by framing the aforesaid question, which we are called upon to answer.
5. We need not to go into the factual matrix of the case, for the issue is purely legal. The moot point is as to whether succession is a transfer or alienation and would include the expression "transfer of property" or not and as ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 4 to whether succession with respect to agricultural land falls within item No. 5 of List III of the Constitution or not.
.
6. We now take note of relevant provisions of the Constitution of India (hereinafter referred to as the Constitution).
7. Part XI, Chapter I of the Constitution deals with the legislative relations i.e. distribution of legislative powers. By virtue of Article 245, territorial jurisdiction of the legislative powers of the Parliament and the State Legislatures is delimited and Article 246 distributes the legislative powers subject wise between the Parliament and State Legislatures. Of course, exceptions are carved out under Articles 247, 249, 250, 252 and 253. Articles 245, 246 and 254 read as under:-
"245. Extent of laws made by Parliament and by the Legislatures of States. - (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make law for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
246. Subject-matter of laws made by Parliament and by the Legislatures of States - (1) Notwithstanding ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 5 anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of .
the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in Clause (3), Parliament, and, subject to Clause (1), the Legislature of any State [* * *] also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (3) Subject to Clauses (1) and (2), the Legislature of any State [* * *] has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State list.
... ...
254. Inconsistency between laws made by
Parliament and laws made by the Legislatures of States - (1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 6 passed before or after the law made by the Legislature of such State, or, as the case may be, the .
existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of State [* * *] with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
8. We may also advert to the historical background of the Constitutional provisions on the issue.
9. Prior to the enforcement of the Constitution, field of legislature of Federal Government and the State Government were governed under the Government of India Act, 1935 (hereinafter referred to as the "1935 Act").
Seventh Schedule, List 2 Provincial List contained subjects for the provincial legislature and List 3 Concurrent ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 7 Legislative List contained subjects for both federal and provincial legislatures. The relevant entries, under the .
"1935 Act" are extracted as under:
"Entry-21 Provincial Legislative List: Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Court of wards; encumbered and attached estates; treasure trove.
Entry-7 Concurrent Legislative List: Wills, intestacy and succession, save as regards agricultural land." [Emphasis supplied]
10. Entries relevant for answering the question, under the Constitution read as under:-
Seventh Schedule.
List II - State List.
"18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization." [Emphasis supplied] List III - Concurrent List.
...::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 8
"5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint .
family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law."
[Emphasis supplied] "6. Transfer of property other than agricultural land; registration of deeds and documents."
[Emphasis supplied] "7. Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land." [Emphasis supplied]
11. Noticeably the legislatures in their wisdom did not retain the expression "save as regards agricultural lands" so contained in Entry No. 21 of the Provincial Legislative List of "1935 Act" in the corresponding entry No. 5 of the Concurrent List under the Constitution.
12. At this juncture, it would be beneficial to take note of Section 22 of the Succession Act, which reads as under:
"22. Preferential right to acquire property in certain cases. - (1) Where, after the commencement of this Act, an interest in any immoveable property of an intestate, or in any ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 9 business carried on by him or her, whether solely or in conjunction with others, devolves upon two .
or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this Section, that heir who offers the highest consideration for the transfer shall be preferred." [Emphasis supplied]
13. From the statement of object and reasons of the Succession Act, it is evidently clear that special provisions were included for "regulating succession to the property of intestate" of a Hindu.
::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 1014. Chapter II of the Succession Act deals with "intestate succession" whereas Chapter III deals with .
"testamentary succession".
15. Chapter II provides for the manner in which word "property" of an intestate would devolve upon and partitioned amongst the heirs of a person who dies as an intestate.
16. Noticeably though word "property" is not defined but "intestate" stands defined under Chapter I, Section 3(g), which reads as under:
"3. Definitions and interpretation. -
...
(g) "intestate" - a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;
... ..."
17. The word "succession" is also not defined under the Succession Act. But from the provisions of Chapter II, it is evidently clear that properties are to devolve upon the surviving heirs and distributed in accordance with the provisions contained therein.::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 11
18. We find that learned Single Judge in Baldev Parkash (supra), while holding that provisions of the .
Succession Act would not apply to agricultural land, independently, has not assigned any reason. Simply opinion rendered by the Hon'ble Judges of Punjab & Haryana High Court in Jaswant & others vs. Basanti Devi, 1970 P.L.J. 587 (para 8 of the report) stands reproduced.
19. At this point in time, we may observe that the very same learned Judge, while dealing with an identical issue and same provisions, in Madan Lal & another vs. Braham Dass alias Brahmu & another, 2008 (1) Shim. LC 427, took the following contradictory view:
"18. The trial Court has dealt with the aspect of the nature of the property as well as the point of legal necessity in detail vide judgment dated 25.8.1989.
What has to be seen under Section 22 of the Hindu Succession Act, 1956, is that when an interest in any immovable property of an intestate, devolves upon two or more heirs specified in class 1 of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. The plaintiff and Haria are real brother and have inherited as class-1 heirs the suit land in ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 12 equal shares after the demise of their father in January, 1975. The land in question was not .
partitioned. The trial Court as well as the appellate Court have correctly appreciated the oral as well as the documentary evidence brought on record by the parties."
20. At this point in time we may note that the learned Single Judge (in RSA No. 258 of 2012), while framing the question for adjudication, has taken note of several decisions rendered by various courts, both in support and against the point canvassed before us. In a tabulated form, the law of succession either applicable or not application to agricultural land is indicated as under:
Not applicable Applicable
Jaswant & others vs. Basavant Gouda vs.
Basanti Devi, 1970 Channabasawwa &
P.L.J. 587 another, AIR 1971
Mysore 151.
Prema Devi vs. Joint Nahar Hirasingh vs. Director of Mst. Dukalhin, AIR Consolidation, AIR 1974 Madhya Pradesh, 1970 Allahabad 238. 141.
Jeewanram vs. Nidhi Swain vs. Khati Lichmadevi, AIR 1981 Dibya, AIR 1974 Orissa Rajasthan 16. 70.
Baldev Parkash & Venkatalakshmamma
others vs. Dhian vs. Lingamma, 1984
Singh & others, (2) Kar. L. J. 296.
Latest HLJ 2008 (HP)
599
Subramaniya Tukaram Genba Jadhav
Gounder & others, vs. Laxman Genba
vs. Easwara Gounder Jadhav, AIR 1994
::: Downloaded on - 06/03/2018 22:57:38 :::HCHP
13
& others, 2011 (2) Bombay, 247.
Mad. L.J. 467.
Anjali Kaul & another Vaijanath & others .
vs. Narendra Krishna vs. Guramma & Zutshi, 2014 (9) RCR another, (1999) 1 (Civil) 2794. SCC 292
21. Having analyzed the aforesaid decisions, learned Judge found that insofar as High Courts of Punjab and Haryana, Allahabad, Rajasthan, Madras and this Court in Baldev Parkash (supra) are concerned, it categorically held provisions of the Succession Act, more particularly Section 22 not applicable to agricultural land in the matter of succession, for being beyond the competence of Parliament to legislate over agricultural lands, which power, legislative in nature, is traced to Entry 5 of List III of Seventh Schedule of the Constitution, dealing only with devolution and not transfer.
22. Whereas, on the other hand, the High Courts of Mysore, Madhya Pradesh, Orissa and Karnataka while disagreeing with such proposition categorically held the provisions of Section 22 of the Act applicable to agricultural lands.
23. In fact, Bombay High Court found no conflict in the judgments rendered by the High Courts of Punjab, ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 14 Mysore, Allahabad and Rajasthan, and also held the provisions of 1956 applicable to agricultural land, save and .
except to the extent provided in Section 4(2) of the Act.
24. In Jaswant (supra), while answering the question as to whether Section 22 of the Succession Act applies to agricultural land or not, the Court answered in the negative (para-7 of the report). While forming opinion, in para -8 of the report, Court observed that the words "immovable property" used in the said Section would include agricultural land and that "save and except for the purpose of devolution" which the said Section does not provide for otherwise, agricultural land would fall in entry No. 18 of List II.
25. One may only observe that here we are dealing with succession of an immoveable property of an intestate.
26. In our considered view, in the said decision what weighed with the Court, in forming its opinion, was also the decision of Federal Court in re: Hindu Women's Right to Property Act, AIR 1941 Federal Court 72, which incidentally was dealing with the provisions under the "1935 Act", ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 15 wherein succession qua agricultural land was specifically exempted. Hence, law laid down in Jaswant (supra) was in a .
totally different context, not directly dealing with the issue in hand.
27. A two Judge Bench in Prema Devi (supra), has clearly held the provisions of the Succession Act not applicable to the agricultural properties governed by the U.P. Zamindari Abolition and Land Reforms Act. In our considered view, correctness of the decision cannot be doubted in view of the saving clause [sub-section (2) of Section 4 of the Succession Act], which categorically exempted laws provided for the prevention of fragmentation; fixation of ceiling or devolution of tenancy rights in respect of agricultural holdings. The Court was dealing with a case where by virtue of a compromise decree, a lady was sought to be made a Bhumidar i.e. tenure holder of another class. It is in this background, Court observed provisions of sub-section 2 of Section 14 of the Succession Act, not to be applicable.
28. One notices that the view taken by the learned Single Judge in Jeewanram (supra) is based on a decision ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 16 rendered in Jaswant (supra). Also Court did not account for statutory exceptions so contained under Section 4 of the .
29. A Division Bench of High Court of Mysore in Basavant Gouda (supra), by applying the doctrine of "Pith and Substance" held the provisions of the Succession Act to be applicable to agricultural land in the following terms:
"11. Mr. Savanur lastly contended that the Hindu Succession Act itself is not applicable to agricultural lands because entry 18 in List II of the Seventh Schedule of the Constitution, confers power on the State Legislature to make legislation in respect of agricultural lands. Hence Hindu Succession Act passed by the Parliament could not apply to succession to agricultural lands. This argument is merely to be stated for being rejected. Entry 5 of List III of the Seventh Schedule of the Constitution deals with the power to legislate in respect of marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of the Constitution subject to their personal law. It may be noticed here that the corresponding Entry 7 in the Government of India Act, 1935. List III read as follows:
"Wills, intestacy; and succession, save as regards agricultural land."
It is significant that in Entry 5 in the Constitution the words "save as regards agricultural land" have been omitted. The pith and substance of the Hindu Succession Act is to make a law relating to succession and not to deal with agricultural lands as such. That is the reason why the argument of Mr. Savanur requires no further consideration. The provisions of Section 14 of the Hindu Succession Act are matters which come within the ambit of Entry 5 ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 17 in List III of the Seventh Schedule of the Constitution and their applicability to agricultural lands cannot be excluded. This view of ours finds support in the .
decision Amar Singh v. Baldev Singh, AIR 1960 Punj 666 (FB) and Shakuntala Devi v. Beni Madhav, AIR 1964 All 165."
30. At this point in time, it be only observed that the Court referred to and relied upon the decision rendered by a Full Bench of Punjab & Haryana High Court in Amar Singh vs. Baldev Singh, AIR 1960 Punj 666 (FB), which incidentally was never noticed by the Division Bench in Jaswant (supra).
31. A two Judge Bench in Nidhi Swain (supra), by relying upon Basavant Gouda (supra), held the provisions of the Succession Act applicable to agricultural land. The Court noticed that saving clause so contained in the entry under the "1935 Act" came to be deleted in the corresponding entry under the Constitution.
32. In Laxmi Debi vs. Surendra Kumar Panda & others, AIR 1957 Orissa 1, the Court held that:-
"14. Mr. Jena further contended that the Act, even if applies retrospectively, will not apply to agricultural lands, and for this he relies upon the Federal Court decision reported in Hindu Women's Rights to Property Act, 1937, In the matter of, AIR 1941 PC 72 (K). That was a case which came up for decision by the Federal court on a reference made by His Excellency the Governor-General of India.
Gwyer C. J., who delivered the judgment of the Court held that the Hindu women's Rights to Property ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 18 Act of 1937, and the Hindu Women's Rights to property (Amendment) Act of 1938, do not operate to regulate succession to agricultural land in the .
Governors' Provinces; and do operate to regulate devolution by survivorship of property to other than agricultural lands.
This decision, in view of the changed position in law, no longer holds good. The federal Court decision was based upon the law of legislative competency as it then stood, by the Government of India Act, 1935. In Schedule 7, Government of India Act, 1935, this subject appears in the Concurrent Legislative List (List 3) as item no. 7. Item 7 was in the following terms:
"wills, Intestacy and Succession, save as regards agricultural lands."
Now under the present Constitution of India, the same subject has been dealt with in the Concurrent List (List 3) in Sch.7 as item No. 5. Item No.5 runs as follows:
"Marriage and divorce, infants and minors, Adoption, Wills, Intestacy and Succession, Joint Family and Partition, all matters in respect of which parties in judicial proceedings were, immediately before the commencement of this Constitution, subject to their personal law."
It is clear that the Parliament had omitted the phrase "save as regards agricultural land" from item No. 5 of the Concurrent List in order to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the enlargement of Entry No. 5. We have no doubt, therefore, that in view of the change in law, the Act will apply to agricultural lands also, and the decision in AIR 1941 PC 72 (K) would no longer hold good."
[Emphasis supplied]
33. A Full Bench of High Court of Madhya Pradesh in Nahar Hirasingh (supra) observed that where a tenancy or a land tenure legislation makes a special provision for ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 19 devolution of the land, that provision would prevail in view of sub-section (2) of Section 4 of the Succession Act .
otherwise, elsewhere provisions of the Succession Act would prevail.
34. One finds that in Tukaram Genba Jadhav (supra), the learned Single Judge, after considering divergent views taken by various courts of the land and considering most of the aforesaid decisions, held that in fact there was no real conflict in view of the fact that decisions came to be rendered either on the basis of position as it existed prior to the enforcement of the Constitution or in view of the saving clause provided under Section 4(2) of the Succession Act.
35. In fact, view taken by the High Court of Bombay in the said decision is not contrary to the one so taken by the Full Bench of Punjab & Haryana High Court in Amar Singh (supra). Mere reading of the report reveals that insofar as subject matter of wills, intestacy and succession is concerned, it squarely falls within the exclusive competence of the Central Legislature. Definitely not the State Legislature. The alleged encroachment of entry No. 18 in the State List, if any, is incidental. By applying the ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 20 doctrine of "Pith and Substance", if the subject legislated upon falls directly and substantially within the scope and .
ambit of entry in the Concurrent List, question of alleged encroachment in the State List would not arise.
36. The expression "property" of an intestate in Chapter II of the Succession Act, save and except the saving clause in Section 4(2), which also now stands repealed by virtue of the amendment carried out in the year 2005, necessarily has to include "immoveable property" be agricultural land or otherwise. Any tangible property is what is required to be seen.
37. We are in respectful agreement with the view of the matter taken by the learned Single Judge that the expression "property" would cover all kinds of properties, including agricultural land, which view finds support from the decision rendered by the Apex Court in Vaijanath (supra). Now, significantly the Apex Court was dealing with the provisions of the Hindu Women's Rights to Property Act, 1937 which did not define the word 'property' which in fact, is similar to the position with the statute with which we are dealing. Noticeably, laws relating to women ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 21 came to be enacted not only to mitigate hardship but also to confer certain rights upon women and widows. These are .
all beneficial legislations and hence have to be interpreted as such.
38. In Vaijanath (supra) the Court held that:
"8. There is no exclusion of agricultural lands from Entry 5 which covers wills, intestacy and succession as also joint family and partition. Although Entry 6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well as land including transfer and alienation of agricultural land are placed under Entries 14 and 18 of the State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad was competent to enact a Legislation which dealt with intestacy and succession relating to Joint Family Property including agricultural land. The language of the Hindu Women's Right to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words 'property' as well as interest in Joint Family Property' are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women's Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women's Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present contest would clearly cover agricultural lands under the word 'property'. This Act also received the assent of the President under Article 254 (2) and, therefore, it will prevail.
9. The appellants, however, rely upon a subsequent Act passed by the State of Hyderabad, namely, Hyderabad Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1954. Section 2 ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 22 of the said Act provides that "term property' in the Hindu Women's Rights to Property Act as in force in the State of Hyderabad shall include agricultural .
land." This act received the assent of the President on 15th October, 1954 and was published in the State Gazette dated 22nd of October, 1954. It was submitted that prior to the enactment of the Hyderabad Hindu Women's Right to Property (Extension to Agricultural Lands) Act, 1954, the Hindu Women's Right to Property Act as enacted in 1952 would not apply to agricultural land. The High Court has rightly negatived this contention. A subsequent Act cannot be used to interpret the provisions of an earlier enactment in this fashion. The language of the earlier Act is wide enough to cover agricultural land also. In the entire Hindu Women's Right to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land. The word 'property' is a general term which covers all kinds of property, including agricultural land. A restricted interpretation was given to the original Hindu Women's Right to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excluded the legislative competence of the Central Legislature over agricultural lands. Such is not the case in respect of the Hindu Women's Right to Property Act, 1937, as enacted by the State Legislature of the State of Hyderabad. The ratio of the Federal Court judgment, therefore, would not apply. There is, therefore, no substance in the contention that the subsequent Act of 1954 restricted the application of the Hindu Women's Right to Property Act, 1937 brought into force by the earlier Hyderabad Act of 1952. As is pointed out by the High Court, the Act of 1954 was enacted by way of abundant caution, to make sure that the agricultural lands were not considered as excluded from the scope of the Hindu Women's Right to Property Act as enacted in 1952. The second Act is, therefore, clarificatory."::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 23
39. The term "succession" is defined as meaning the act of succeeding, or the state of being successive; a .
following of things consecutively; and, as applied to persons, a series of persons following one another. It is defined more specifically as the act or right of legal or official investment with a predecessor's office, dignity, possessions, or functions; also, the legal or actual order of so succeeding, or that which is or is to be vested or taken.
The word "succession" is also applied to lineage or order of descendants, and may be employed to indicate the passing of property, and in a technical sense it denotes the devolution of title to property under the laws of descent and distribution. [Corpus Juris Secundum - Volume 83 (LXIII), Page 769]
40. Ordinary meaning of "succession" is transmission by law or will of man, to one or more persons of the property and the transmissible rights and obligations of the deceased person. That is the sense in which the word "succession" is used in the Lists in Schedule VII which is indicated by the collection of the words "wills, intestacy and succession" in Entry No. 5 of List III.
::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 2441. Going back to the issue of legislative intent of the Succession Act, it be only observed that under the .
Hindu Law only few females could claim inheritance and that too with a limited right. In the modern age of social emancipation and equality, more so to remove gender bias, based upon the principles enshrined in the fundamental Articles of the Constitution, there has been movement for amelioration of hardships faced by the females. It is in this backdrop that the Succession Act came to be codified. On this issue, observations made by the Apex Court in Munnalal vs. Rajkumar, AIR 1962 SC 1493, reproduced below are apt:-
"The Act is a codifying enactment, and has made far-
reaching changes in the structure of the Hindu Law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death................ Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act."::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 25
42. Although Hindu Law claims to have divine origin .
and further claims to be divinely ordained and divinely dictated body of rules and although theoretical claims are made that Hindu Law is eternal and immutable, yet in practice during the centuries preceding the promulgation of the Succession Act, Hindu Law and particularly the law relating to succession had ceased to be uniform and schemes of inheritance with radical differences came into existence in different parts of the country. Not only there were two differing systems of inheritance known as 'Mitakshara' and 'Dayabhaga' with different rules and orders of succession but under the 'Mitakshara' system of law, various schools with some differences in law had come into existence. Varying interpretation of texts in the smrities, dissimilar families and local customs and conflicting pronouncements contributed to the absence of uniformity and consistency. There was scant regard for the females in matter of inheritance and succession. Under Hindu Law, few females could claim inheritance and even if they inherited, such acquisition came only with limited rights. Whatever justification may have been for this ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 26 position in the ancient and medieval conditions, the position could not be tolerated in the modern age of social .
emancipation and equality. Thus there has been a social struggle for changing the ancient Hindu Law for a more equitable, consistent and coherent system of jurisprudence.
43. In fact, on this issue we find the High Court of Rajasthan to have traced the customary and legislative law in Bhuri Bai vs. Champi Bai & another, AIR 1968 Rajasthan 139 (Paras 8 and 9).
44. Tracing the legislative history of succession to agricultural land, as already noticed supra, one would find that succession with regard to the agricultural land was always meant to be a provincial subject. It is in this backdrop, Federal Court, while interpreting the provisions of the Hindu Women's Rights to Property Act, 1937 in Re:
Hindu Women's Right to Property Act (supra), came to the conclusion that the Act did not extend to succession of agricultural land. Significantly, the provinces themselves took up the matter and carried out necessary amendments, extending the provisions of the said Act, also to agricultural lands in their respective provinces. For example Bombay ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 27 Act 17 of 1942, the Bihar Act, 6 of 1942, and the United Provinces Act 11 of 1944 and the Madras Act 26 of 1947.
.
But then the position changed later on.
45. As is evident from entry No. 5 of List-III, the words "save as regards agricultural land", as it stood in Entry No. 7 of the Government of India Act, 1935, stands deleted. Thus under the Constitution, Parliament intended to exercise full power in respect of matters of succession even with regard to the agricultural land, the only exception being so provided under the Act. On this issue, with profit, one may quote the views of famous author Mulla as expressed in Principles of Hindu Law (Vol. II, Page 299) as under:
"It is sometimes said that the Act does not apply to agricultural lands but that would not be a correct proposition. Sub-section (2) relates only to certain specified matters and subject to that, the provisions of the Act must govern succession to agricultural lands too. Considerable legislation by various States, aimed at prevention of fragmentation of agricultural holdings and securing their consolidation and for the purpose of fixing ceilings and devolution of holdings, has found place on the statute-book in recent years and this section is not intended to override or disturb such legislation. Land ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 28 policy in different States, though founded on the concept of a socialist welfare state, cannot be .
expected to be uniform and sub-Section (2), therefore, leaves such legislation relating to agricultural land undisturbed....... It may be said that this provision detracts from the fundamental objective of uniformity of legislation. However, the explanation is that what is aimed at is a uniform law for all Hindus and not necessary a uniform law for all forms of property."
46. The development of law did not stop with the codification of Hindu Law. Even in the year 2005, Act stands amended and the provisions of Section 4(2) of the Succession Act deleted. The whole object, purpose and intent being to offer right, absolute in nature, regardless of the nature of the property of a female.
47. Significantly, Item No. 18 of List -II does not use the expression "property". The expression used is "land".
The field for exercising legislative competence by the State appears to be with regard to and in relation to the land - not property - of tenure and tenancy. Noticeably when it comes to agricultural land, the power is with reference to transfer and alienation. Significantly "transfer of property other than agricultural land" is specified as a subject in Entry No. ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 29 6 of concurrent list. Hence when it comes to transfer and alienation of agricultural land, Parliament is clear that .
competence would be only that of the State. However, when it comes to succession or so as to say inheritance, intestacy or testamentary, there is no restriction with regard to the legislative competence about the nature of the property, moveable or immovable, be it "land" or "agricultural land"
as stipulated under Entry No. 18 of List II. "Land"
necessarily would not mean and take in its sweep any other immoveable property.
48. Noticeably, learned Single Judge of this Court in Dalip Chand & another vs. Chuhru Ram, AIR 1989 Himachal Pradesh 44, while dealing with a case where the son, claiming absolute succession of the entire occupancy tenancy land under the provisions of the Punjab Tenancy Act, laid challenge to the gift so made by his mother in favour of a third party by virtue of her having succeeded to the estate of her husband alongwith her son, observed that:-
"9. In case the rights acquired by Smt. Minhon are to be governed by sub-Section (1) of S. 14, she would be deemed to have been full owner of the aforesaid area of land and, thus competent to make a gift thereof. In that event the view taken by the courts ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 30 below would have to be held to be erroneous and the suit of the plaintiff liable to dismissal. In the circumstances of the present case it is obvious that .
as a widow, Smt. Minhon had a right of maintenance which was a charge on the property of her husband, Munshi Ram. In other words, her right to maintenance was a pre-existing right on the date of enforcement of the Hindu Succession Act. Such a right would bring the case within the ambit of sub- Section (1) of S. 14 of the Hindu Succession Act, 1956. Law in this respect is more than settled. If reference is needed to precedents, it may be made to Vaddeboyina Tulasamma vs. Sesha Reddi, AIR 1977 SC 1944; Bai Vajia vs. Thakorbhai Chelabhai, AIR 1979 SC 993; Nand Ram vs. Vidya, ILR (1985) Him Pra 852 (DB); Jagannathan Pillai vs. Kunnjithapadam Pillai, AIR 1987 SC 1492 and Smt. Gulwant Kaur vs. Mohinder Singh, AIR 1987 SC 2251."
49. To similar effect is the view expressed by another learned Single Judge of this Court in Hari Singh & others vs. Milap Chand, 2000 (1) Shim. L.C. 403.
50. The Apex Court in Madhu Kishwar & others vs. State of Bihar & others, (1996) 5 SCC 125 has observed that:-
"37. The public policy and constitutional philosophy envisaged under Articles 38, 39, 46, and 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the preamble of the economic empowerment and social justice to women for stability of political democracy. In other words, they frown upon gender discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural rights on equal footing. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 31 civilization and culture advances. The customs and mores undergo change with march of time. Justice to the individual is one of the highest interest of the .
democratic State. Judiciary cannot protect the interests of the common man unless it would redefine the protections of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable.
38. Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps into iron out such creases and ensures equality of protection to individuals as well as group liberties. Man's status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Therefore, law is the foundation on which the potential of the society stands." ... ...
"52. Sub-Section (2) of Section 4 of the Hindu Succession Act, to remove any doubts, has declared that the Act shall not be deemed to affect the provisions of any law in force providing for (i) prevention of fragmentation of agricultural holdings;
(ii) for the fixation of ceiling; and (iii) for the devolution of tenancy rights in respect of such holdings."
51. The Apex Court in Union of India vs. Harbhajan Singh Dhillon, 1971 (2) SCC 779, while dealing with the Constitutional validity of the amendment carried in the Wealth Tax Act, 1957, including capital value of agricultural ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 32 land for computing net wealth, held the Act not to be ultra vires of the Constitution, on the ground of lack of legislative .
competence. Repeatedly, the discussion by the Constitution Bench (Seven Judges) is referred to by the Apex Court.
Hence, we deem it necessary to reproduce the following passages from the said report:-
"164. It will be noted that the Imperial Parliament was alive to the fact that there might be subject- matters of legislation not covered by any of the three Lists of the Seventh Schedule but the same were not committed to the care of the Federal Legislature or even attempted to be divided between the Federal Legislature and the State Legislatures. It was the function of the governor-General to empower either the Federal Legislature or a Provincial Legislature by public notification to enact a law with respect to any law not enumerated in the Seventh Schedule including a tax not mentioned in any such list and in the discharge of this function, the governor-General was to act in his discretion. The Explanation for this is to be found in the speech of Sir Samuel Hoare recorded in the Parliamentary debates to the effect that :
"Indian opinion was very definitely divided between the Hindus who wanted to keep the predominant powers in the Centre and the Moslems who wished to keep the predominant power in the Provinces. The extent of that feeling made each of these communities look with greatest suspicion at the residuary field the Hindu demanding it with the Centre and the Moslems demanding with the Provinces. "
165. It would appear from the same speech that all attempts to bridge the difference only resulted in making the Federal List, the Provincial List and the Concurrent List each as exhaustive as possible to leave little or nothing for the residuary field. The said speaker hoped that "all that was likely to go into the ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 33 residuary field were perhaps some quite unknown spheres of activity" which could not be contemplated at the moment.
.
166. The matter had engaged the attention of the Constituent Assembly. The Second Report of the Union Powers Committee, dated 5/07/1947, to the President of the Constituent Assembly contains the following statement:
"We think that residuary powers should remain with the Centre. In view however, of the exhaustive nature of the three lists drawn up by us the residuary subjects could only relate to matters which, while they may claim recognition in the future, are not at present identifiable and cannot therefore be included now in the Lists."
Moving the aforesaid report Shri Gopalaswami Aiyangar in his speech on 20th August, 1947 said inter alia as follows :-
"We should make the Centre in this country as strong as possible consistent with leaving a fairly wide range of subjects to the Provinces in which they would have the utmost freedom to order things as they liked, In accordance with this view, a decision was taken that we should make three exhaustive Lists, one of the Federal subjects, another of the Provincial subjects and the third of the concurrent subjects and that, if there was any residue left at all, if in the future any subject cropped up which could not be accommodated in one of these three Lists then that subject should be deemed to remain with the Centre so far as the Provinces are concerned." (see the Constituent Assembly Debates Vol. V. p.38) ... ...
"169. Scanning the lists and specially the entries mentioned above, there can be little doubt that the Constitution-makers took care to insert subject- matters of legislation regarding land and particularly agricultural land in the exclusive jurisdiction of State Legislature. Although Parliament is competent to legislate on transfers of property and contracts generally, the legislative power in this regard is not to be exercised over agricultural land but when ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 34 evacuee property includes agricultural land Parliament is competent to legislate with respect to custody, management and disposal of the same .
under Entry 41 of List III. Similarly, when a question of acquisition or requisitioning of property including agricultural land is concerned, both Parliament and the State Legislature are competent to exercise legislative powers."
52. As we have already observed, by virtue of the Amendment Act 39 of 2005, w.e.f. 9.9.2005 sub-Section (2) of Section 4 of the Succession Act stood deleted.
Resultantly no local law pertaining to the prevention of fragmentation of agriculture holding for fixation of ceilings for devolution of tenancy rights, in respect to such holdings, with respect to succession is saved.
53. On similar issue, the Delhi High Court in Nirmala & others vs. Government of NCT of Delhi & others, 170 (2010) DLT 577 (DB), observed that "female have the right to succeed to the disputed agricultural land". It further observed that "For the aforesaid reasons, we hold that the provisions of the HAS would, after the amendment of 2005, have over-riding effect over the provisions of Section 50 of the DLR Act and the latter provisions would have to yield to the provisions of the HAS, in case of any inconsistency. The rule of succession provided in the HSA would apply as ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 35 opposed to the rule prescribed under the DLR Act. The petitioners are, therefore, entitled to succeed to the .
disputed agricultural land in terms of the HSA. The respondents No. 1 and 2 are directed to mutate the disputed agricultural land, to the extent of late Shri Inder Singh's share, in favour of the petitioners and respondent Nos. 3, 4 and 5 as per the HSA."
54. To somewhat similar effect is another decision of the very same Court in W.P.(C) No. 8967/2014, titled as Deepak Yadav vs. Government of NCT of Delhi, decided on 25th February, 2015 and more recent one of Bombay High Court in Shri Eknath Daval Thete vs. Ganpal Dagdu Thete (Decd.), Second Appeal No. 450 of 1993, decided on 6.1.2016, where it is observed that "Section 22 of the Hindu Secession Act, 1956 clearly confers additional right of pre-emption in case of interest in any immovable property devolving upon two or more heirs specified in ppn 30 sa -
450.93 (j).doc clause I of the Schedule and in case any one of such heirs proposing to transfer his or her own interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 36 transferred. The plaintiff being a brother of the defendant No. 1 and was having joint interest in the suit property and .
rightly applied for pre-emption in the share of the share of the defendant No. 1 in the suit property by exercising right under Section 22 of the Hindu Succession Act, 1956, the learned trial Judge as well as the Lower Appellate Court have considered the said provision of Section 22 of the Hindu Succession r Act, 1956 and have rendered a concurrent finding of fact that the plaintiff was entitled to apply for pre-emption and purchase the share of the defendant No. 1 in the suit property before the same was sold to the defendant No. 2. Learned counsel appearing for the defendant No. 2 is unable to demonstrate before this Court as to how the said concurrent finding of the fact rendered by both the Courts below is perverse and contrary to Section 22 of the Hindu Succession Act, 1956...".
55. In Accountant and Secretarial Services Pvt. Ltd.
another vs. Union of India & others, (1988) 4 SCC 324, where eviction of a tenant was resisted with challenge being laid with regard to the legislative competence of the Public Premises (Eviction of Unauthorised Occupants) Act, ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 37 1971, so enacted by the Parliament, the Apex Court interpreted the word "land" in entry No. 18 of List -II to read .
as under:-
"27. In our opinion, the true import of the word 'land' can be gathered if we try to ascertain the proper interpretation and ambit of these three phrases, particularly, the first two among them, in the context of other entries in the Union List. Doing so, is it possible to interpret this entry as encompassing within its terms legislation on the relationship of landlord and tenant in regard to houses and buildings? That is the question. After careful consideration, we have reached the conclusion that the answer to this question has to be in the negative..."
...
"(5). While, on the one hand, the words in entry 18 have to be given the widest meaning possible, it has to be borne in mnd that the entries in the various lists have to be read together and construed in such a manner as to give a meaning and content to all of them. We need hardly say that the Constitution should be so interpreted as to reconcile all concerned and relevant entries (See: Hoechst Pharmaceuticals v. State, (1983) 4 SCC 45: (AIR 1983 SC 1019) and the Dhillon case (Union of India vs. H. S. Dhillon, (1971) 2 SCC 33: AIR 1972 SC 1061). If we give the word "land" a meaning so as to include buildings and also give the words "rights in or over land" a wide interpretation - as we have to, in view of the discussion and ratio in Megh Raj v. Allah Rakhia, AIR 1947 PC 72 - this entry will be seen to cover almost all kinds of not only transfer but also alienation and devolution of, or even succession to, lands and buildings. The interpretation thus placed will affect not merely leases and, therefore, a small part of the ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 38 contents of the item regarding 'transfer of property';
it will apply equally to sales, mortgages, charges and all other forms of transfer of all kinds of interests in .
land and buildings and thus make such a substantial inroad into the scope of entry 6 in the concurrent list as to denude it of all application except to property other than land and buildings. The word "property" used in entry 6 will thus lose even its normal meaning not to speak of its being given the widest meaning possible appropriate to a legislative entry. It will mean that though transfer of property - other than agricultural land - is in the Concurrent List, the State will have exclusive power to legislate in respect of transfer of all property in the nature of land and buildings; in other words, for the words "transfer of property other than agricultural land", we will be substituting "transfer of property other than lands and buildings". It will mean that though wills, intestacy and succession are in item 5 of the Concurrent List, the State can legislate exclusively in respect of devolution of land and buildings of all description. It will render entry 35 of List II a surplusage in so far as it refers to "lands and buildings". We do not think that such an interpretation should be favoured. The more harmonious interpretation would be that any subject- matter that involves the element of transfer or alienation of any property (other than agricultural land) or of devolution (on testamentary or intestate succession) of any property or contract (other than one in relation to agricultural land) will fall in the Concurrent List and not in the State List even though it may relate to land or buildings."
[Emphasis supplied]
56. Thus, "succession" falls within the scope of entry No. 5 of List -III and in case a narrow and pedantic or myopic view of interpretation is adopted by accepting succession to an agricultural land, bringing it within the scope of "rights in and over land", impliedly no meaning ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 39 would be attached to entry No. 5 as each and every word of the list must be given effect to. If there is no local law on .
the subject, then the special law will prevail which in the instant case is the Succession Act. The scope, object and purpose of codifying Hindu Law is different. It is to achieve the Constitutional mandate. There is no provincial law dealing with the subject. As such, the Central Act must prevail. r
57. We are in respectful agreement with the findings returned by the learned Single Judge in its judgment dated 14.10.2015 that the words 'property' as well as 'interest in Joint Family Property' are wide enough to cover agricultural land.
58. For all the aforesaid reasons we hold that the Provisions of the Hindu Succession Act would apply to Agricultural Lands.
Per Justice Dharam Chand Chaudhary, J
59. While, I wholly agree with the view of the matter taken by my esteemed brother Karol, the Acting Chief Justice, I prefer to support the same further by assigning additional reasons.
::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 4060. The Hindu Succession Act is a beneficial piece of social legislation enacted with sole object to provide a .
mechanism governing the law relating to succession among Hindus. The Act, being a codifying statute is a complete code and a comprehensive legislation in respect of the matters dealt with thereunder. Regard must, therefore, be given to the clear language contained under the Act in the matter of interpretation of various provisions contained therein. Following observations of the Supreme Court in Velamuri Venkata Sivaprasad (dead) by LRs vs. Kothuri Venkateshwarlu (dead) by LRs, AIR 2000 SC 434, the relevant to the context, are reproduced herein below:
"Undisputably, the Hindu Succession Act, 1956 in particular Section 14 has introduced far reaching changes having due regard to the role and place of womanhood in the country on the basis of the prevailing socio-economic perspective. It is now a well-settled principle of law that legislations having socio-economic perspective ought to be interpreted with widest possible connotation as otherwise, the intent of the legislature would stand frustrated. Recognition of Rights and protection thereof thus ought to be given its full play for which the particular legislation has been introduced in the Statute Book. ................... The ::: Downloaded on - 06/03/2018 22:57:38 :::HCHP 41 endeavour of the law court should thus be to give due weightage to the requirement of the .
Constitution in the matter of interpretation of statutes................ The legislation of 1956 therefore, ought to receive an interpretation which would be in consonance with the wishes and desires of framers of our Constitution. We ourselves have given this Constitution to us and as such it is a bounden duty and an obligation to honour the mandate of the Constitution in every sphere and interpretation which would go in consonance therewith ought to be had without any departure therefrom."
61. The provisions contained under Section 22 of the Act have, therefore, to be construed and understood in the light of the above legal principles settled by the Supreme Court. Nothing is there in Section 22 of the Hindu Succession Act, 1956 to prohibit its applicability to "agricultural land" and for that matter even to any other kinds of land including "Banjar Kadim" and "Gair Mumkin", (the subject matter of dispute in the present lis). As a matter of fact, words "immovable property" in Section 22 of the Act covers all kinds of land including "agricultural land". It is worth mentioning that in the report of Joint Committee of both Houses of Parliament on the Bill called ::: Downloaded on - 06/03/2018 22:57:39 :::HCHP 42 as "The Hindu Succession Bill" (13 of 1954), presented to the Rajya Sabha to amend and codify the law relating to .
intestate succession among Hindus, clause 24 was incorporated with a view to make additional provision to the effect that as and when an heir wish to dispose of his share in the immovable property or business, the intestate left behind, the other heirs shall have not only the right of preemption but also to enjoy such right by buying off his/her share and also that of a married daughter and thereby to dislodge the fears especially being entertained by the business community that a son-in-law and his family members getting hold of daughter's share may disturb their business.
62. Clause 24 of the Bill was enacted with a view to extend preferential right in favour of a co-sharer to buy off the share of another co-sharer in an immovable property or in any business carried on by an intestate in case the latter intends to sell his/her share therein. The Bill adopted by the Select Committee after taking into consideration various suggestions made from time to time was given short title called as "The Hindu Succession Act, 1956". The Act has ::: Downloaded on - 06/03/2018 22:57:39 :::HCHP 43 intended to amend and codify the law relating to succession among Hindus. Section 22 of the Act is para materia to .
Clause 24 of the Bill.
63. The intention behind to give preferential right to a heir(s) as envisaged under Section 22 of the Act, to acquire property of other heirs in certain cases, therefore, is with the sole object to prevent the fragmentation of the estate and introduction of strangers in the family business and estate. After the commencement of the Hindu Succession Act, 1956, if the interest in any immovable property or business carried by an intestate devolves upon two or more heirs specified in class I of the Schedule and if anyone of such heirs proposes to transfer his/ her interest in the property or the business, the other heirs shall have a preferential right to acquire such interest proposed to be transferred. The consideration for acquisition of that interest either may be mutually agreed upon between those two heirs and in the absence of any such agreement, the matter has to be decided by the Court on an application to be filed under Section 22 of the Act. If the applicability of Section 22 of the Act is excluded in the case of "agricultural ::: Downloaded on - 06/03/2018 22:57:39 :::HCHP 44 land", the very purpose of such benevolent provisions therein shall be frustrated.
.
64. As noticed by brother Justice Karol in para supra, there are two divergent views qua the applicability of Section 22 of the Act to "agricultural land". Section 22(1) of the Act refers to the immovable properties and business alone. In our considered opinion, the expression "immovable property" is quite wide to include agricultural land(s) and for that matter any other land including "Banjar Kadim" and "Gair Mumkin", the subject matter of dispute in the present lis.
65. True it is that normally transfer and alienation of agricultural land falls squarely within the ambit of item 18 of the State List (List II) of Schedule VII of the Constitution of India. The transfer of immovable property contemplated under Section 22 of the Hindu Succession Act, 1956, however, has to be taken an exception to the general rule of transfer of agricultural land as envisaged under item No. 18 State List (List II) of Schedule VII of the Constitution of India. Such a transfer, to my mind, is covered under item No. 5 of Concurrent List (List III) of Schedule VII of the ::: Downloaded on - 06/03/2018 22:57:39 :::HCHP 45 Constitution of India, as in a case of "intestacy" and "succession", the Parliament can also enact laws. As rightly .
pointed out by my esteemed brother Karol, the Acting Chief Justice, in the absence of any State enactment to extend preferential right to a co-sharer to buy off the share of another co-sharer, in the immovable property or business left behind by an intestate, Section 22 of the Act is applicable to such a transfer.
66. As already noticed, the object behind it is very noble i.e. to prevent the fragmentation of holdings, the entry of a stranger to the immovable property and business left behind by an intestate and on the top of it to give some solace to the intestate at his heavenly abode that after his/her death the successors do not allow any third person or stranger to enter upon the estate/business, he/she left behind. It is a hard fact that agriculturists are emotionally attached with the holdings came in their hands from their forefathers. No one wants to part therewith by way of its transfer to a stranger. In a case of inheritance by more than one heir, sometime a scrupulous and cunning heir sells off his share in the joint property to a stranger either to ::: Downloaded on - 06/03/2018 22:57:39 :::HCHP 46 torture the other heirs or take revenge from them or teach a lesson to them for variety of reasons, including jealousy or .
inimical relations with them. Therefore, Section 22 of the Act not only protects the rights of other heirs in the estate left behind by an intestate but also save them from mental torture, harassment and also put fetters on such scrupulous heir from transferring his share in the joint property he inherited to a third person/stranger.
67. Such being the position, we feel that the provisions contained under Section 22 of the Act should also be made applicable to the property inherited by way of testamentary succession and also by survivorship and in addition to the immovable property or business left behind by an intestate. Anyhow, we leave it open to the Union of India to consider the desirability of incorporating the provisions in this regard either in the Hindu Succession Act or in any other legislation holding the field.
68. Therefore, for all the reasons recorded hereinabove and there being nothing in the Hindu Succession Act, 1956 which defines words "immovable property" used in Section 22 thereof, it is held that the ::: Downloaded on - 06/03/2018 22:57:39 :::HCHP 47 provisions of the Section ibid are applicable to all kinds of lands, including "agricultural land" in the matter of sale of .
his/her share therein by one of the heirs in favour of other heir(s), of course for consideration, viz. either mutually agreed upon or settled by a Court of law in an application filed for the purpose by such co-sharer willing to exercise his/her preferential right, to buy the same. The point referred to us by learned Single Judge is accordingly answered. The appeal be now placed before a Bench having roster of board to hear and decide the same in accordance with law.
(Sanjay Karol), Acting Chief Justice.
(Dharam Chand Chaudhary), Judge.
March 1 , 2018 (PK/sd/Karan) ::: Downloaded on - 06/03/2018 22:57:39 :::HCHP