Roshan Lal vs Pritam Singh & Others on 14 October, 2015

[Cites 37, Cited by 0]

Himachal Pradesh High Court

Roshan Lal vs Pritam Singh & Others on 14 October, 2015

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

RSA No. 258 of 2012 and Cross-

Objection No. 417 of 2012 Reserved on 1.10.2015 Date of decision: October 14, 2015 RSA No. 258 of 2012 of Roshan Lal ...Appellant Versus Pritam Singh & others rt ...Respondents Cross-Objection No. 417 of 2012 Roshan Lal ...Non-objector/Appellant Versus Pritam Singh & others ...Objector/Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 For the Appellant: Mr. Vivek Singh Thakur, Advocate.

For the Respondents: Mr.Ajay Sharma, Advocate, for respondents No. 1 and 6.

Tarlok Singh Chauhan J.

The defendant No. 1/appellant has filed this appeal against the judgment and decree dated 13.1.2012 passed by learned District Judge, Kangra at Dharamshla, H.P. The facts of the case may be noticed as follows:-

The respondent No. 1/plaintiff filed a suit for declaration to the effect that he has preferential right to acquire/purchase the property qua 193/1380 share measuring 0- Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 19:12:19 :::HCHP 2 37-00 hectares from defendant No. 2 comprised in Khata No. 9 Khatauni No. 17 to 19, Khasra Nos. 298, 299, 300, 301, 308, 311, .

312, 313, 314, 315, 317, 325, 374, 375, 376, 379, 380, 381, 382, 324, 297 measuring 2-64-58 hectares situated in Village Chandani, Mauja Bhali, Tehsil Jawali, District Kangra, H.P. as per jamabandi for the year 2000-01 (herein after referred to the suit land), subject of to depositing of sale consideration of Rs.80,000/- along with other expenses of registration, being the heir in class 1st list of schedule rt as per Hindu Succession Act 1956. The sale deed bearing document No. 192 dated 14.3.2005 executed by defendant No. 2 in favour of defendant No. 1/appellant is the direct attack on the preferential rights of the plaintiff and the same is required to be declared as wrong, null and void, illegal with consequential relief by way of issuance of permanent injunction restraining the defendant No. 1/appellant permanently from alienating raising any sort of construction, selling, cutting and removing the tress standing over the suit land or in any manner whatsoever and in alternative suit for joint possession of the suit land.

2. The suit land was earlier owned and possessed by Sh.

Machala, S/o Sh. Sukhia, i.e. father, husband and maternal grandfather of plaintiff and defendants No. 2 to 6. After the death of Machala the suit land was inherited by plaintiff and defendants No. 2 to 6 in equal shares being the heirs of class 1st of schedule as per Hindu Succession Act, 1956. It is averred that Smt. Vidya Devi died prior to the death of Machala and as such defendant No. 6 being the Machala's daughter's son (Dotas) inherited the suit land in equal shares with the plaintiff and defendants No. 2 to 5 in equal ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 3 shares. Defendant No. 3 is the step brother of the plaintiff and others are legal heirs of deceased Machala. It is alleged that .

defendants' No. 5 and 6 have relinquished the land of their shares in favour of plaintiff being nearest relations, but they have also been impleaded as party in the suit in order to avoid any legal complications. On 14.3.2005 defendant No. 2 behind the back of of the plaintiff, sold his share in the suit land to defendant No. 1/appellant for sale consideration of `80,000/- vide registered sale rt deed document No. 192 dated 14.3.2005. The said sale deed executed by defendant No. 2 in favour of defendant No. 1/appellant is wrong, null and void. Consequently, relief of injunction, restraining defendant No. 1/appellant from alienating, raising any sort of construction and cutting and removing trees from the suit land was sought.

3. The suit was resisted and contested by defendants No. 1 to 3 by filing written statement, wherein preliminary objections qua maintainability of the suit, cause of action, locus standi, estopple, mis-joinder of necessary parties and the plaintiff having not approached the Court with clean hands have been taken.

4. On merits, it is submitted that defendant/appellant No. 1 was bonafide purchaser of the suit land and the plaintiff never asked defendant No. 2 to sell the land to him. Further alleged that plaintiff asked defendant No. 2 to relinquish her share in his favour and as such plaintiff has got no preferential rights over the suit land and prayer for dismissal of the suit was made.

5. The learned trial Court vide orders dated 26.11.2005 framed the following issues:-

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"1. Whether the plaintiff is having a preferential right to purchase the suit land? OPP

2. Whether the plaintiff is entitled for the purchase of the suit .

land for a consideration of Rs.80,000/- and other expenses of registration? OPP

3. Whether the suit is not maintainable? OPD

4. Whether the plaintiff has no locus-standi to file the present suit? OPD

5. Whether the plaintiff is estopped from filing the present suit of due to his act and conduct? OPD

6. Whether the suit is bad for mis-joinder of necessary party?

OPD

7. rt Whether the plaintiff has not come to the court with clean hands and has suppressed the material facts from this court?

OPD

8. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD

9. Relief."

6. After recording evidence, the learned trial Court dismissed the suit. Aggrieved by the judgment and decree passed by the learned trial Court, plaintiff preferred an appeal before the learned lower Appellate Court and the same was partly allowed.

Aggrieved against the judgment and decree passed by the learned lower Appellate Court, defendant No. 1/appellant filed the instant appeal.

7. This Court admitted the appeal on the following substantial question of law:-

"Whether the provisions of Section 22 of the Hindu Succession Act could be invoked in the present case, especially when the land was Banjar-Kadim and Gair Mumkin"

8. Section 22 of the Hindu Succession Act (herein after referred to as the "Act" reads thus:-

"22. Preferential right to acquire property in certain cases.--

(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 5 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 of 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 (3) rt pay all costs of or incident to the application.

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.

Explanation.--In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."

9. In so far as applicability of Section 22 of the Hindu Succession Act to agricultural land is concerned, the same been subject matter of interpretation from time to time before the various Courts of the country including this Court.

10. One the earliest view on the subject is a learned Division Bench judgment of Punjab and Haryana High Court in Jaswant Vs. Basanti Devi, 1970 P.L.J. 587. The Court therein framed two questions:

(i) Whether this provision (Section 22) applies to completed transfers,

(ii) whether it applies to agricultural land.

The first question was answered by holding that the correct way to interpret Section 22 of the Hindu Succession Act and to give its ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 6 meaning is to hold that a completed transfer also falls within the ambit of sub-section (1) and the words "purposes to transfer" is .

thus include a completed transfer as well.

11. While answering question No. 2 regarding the applicability of the provisions of Section 22 of the Act to agricultural land, the Court fell back to entry No. 18 in List II and entries No. 5 of and 6 in List III of VII Schedule of the Constitution to come to a conclusion that since the Parliament had no jurisdiction to legislate rt over agricultural lands beyond the power it had under entry No. 5 of List III, that is, regarding devolution, therefore, Section 22 did not apply to the case of agricultural lands. It was held:

"5. In my opinion, the correct way to interpret the section and to give its meaning is to hold that a completed transfer also falls within the ambit of sub-section (1) and the words 'purposes to transfer' would thus include a completed transfer as well. As already said, otherwise this section would become wholly unworkable. It is well known canon of construction that Courts must give meaning to a legislative provision unless the Court is forced to a conclusion that it will in fact be legislating and not interpreting the same.

6. The second question presents no difficulty. It is necessary to advert to entry No. 18 in List II and entries Nos. 5 and 6 in List III of the VII Schedule. For facility of reference, those entries are reproduced below:-

List II. Entry No. 18.--I and, that is to say, rights 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.

List III. Entry No. 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.

Entry N. 6.--Transfer of property other than agricultural land; registration of deeds and documents.

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7. I had no occasion to deal with the question of the applicability of the Hindu Succession Act to agricultural lands in the matter of succession and I compared the language of entry No. 18 of List II .

of the Constitution of India with its counterpart in the Government of India Act, 1935, namely, entry No. 21. I pointed out that there was material differences in the language of these two entries because devolution had been taken out from the said entry and put in the concurrent entry No. 5 of List III which enabled the Central Parliament to legislate regarding succession. But that is of not so in the case of agricultural land. Entry No. 6 of List III, when read, points out that the Central Parliament has no jurisdiction to legislate over agricultural lands beyond the power it rt has under entry No. 5 of List III, that is, regarding devolution. It is, therefore, clear that section 22 will not cover the case of agricultural lands.

8. Mr. Roop Chand, the learned counsel for the respondent, stressed that the words 'immovable property' used in section 22 will include agricultural lands. Undoubtedly, they do. But one cannot lose sight of the fact that when the Central Legislature used these words it did so knowing fully well that it had no power to legislate regarding agricultural lands excepting for the purposes of devolution. Section 22 does not provide for devolution of agricultural lands. It merely gives a sort of right of pre-emption. In fact, as already pointed out, entry No. 6 in List III, clearly takes out agricultural lands from the ambit of the concurrent list. Agricultural land is specifically dealt with in entry No. 18 of List II. The only exception being in the case of devolution. Therefore, it must be held that section 22 does not embrace agricultural lands.

9. The last argument of Mr. Roop Chand, the learned counsel for the respondent, was that section 22 is ultra vires the Constitution as the Central Legislature had no right to pass such a law regarding agricultural lands. This argument cannot be accepted because it cannot be presumed that the Legislature was passing law regarding matters which it had no power to pass particularly when with regard to immovable property other than agricultural land, it has the power to enact such a law. This view finds support from the decision of the Federal Court in re: Hindu Women's Rights to Property Act, AIR 1941 Federal Court 72, where in a similar situation their Lordships of the Federal Court refused to strike down the provisions of the Hindu Women's Rights to Property Act, 1937, on the precise arguments."

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12. In Prema Devi Vs. Joint Director of Consolidation AIR 1970 Allahabad 238, it was held that under entry 5 of the list .

III of VII Schedule of the Constitution that the Parliament legislating with respect to the personal laws made under that entry, it cannot be said to apply to any particular property. That entry merely gives the power to determine the personal law. It was further observed of that all laws relating to land and land tenures were within the exclusive jurisdiction of the State Legislature and even the personal rt law would apply to land tenures, if so provided in the State law, but it cannot override State legislation. It was observed:-

"5. In the first place, we are of the opinion that the Hindu Succession Act, 1956, cannot be made applicable to agricultural plots. This Act was passed by the Central Legislature in 1956 and the only entry under which the Central Legislature had the jurisdiction to pass the Act, was entry No. 5 in the third list of the Seventh Schedule of the Constitution. This entry is as follows:-- "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." This entry obviously relates only to personal law and laws passed under this entry do not apply to any particular property. They merely determine the personal law. In List 2, Entry No. 18 is as follows:-- "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." This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State legislation. It is noteworthy that in List 3 wherever the entry relates to rights in land 'agricultural land' has expressly been excluded.

For instance, Entry No. 6 is as follows:

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"Transfer of property other than agricultural land............"

Entry No. 7 is as follows:--

"Contracts, including partnership, agency, contracts of carriage, .

and other special forms of contracts, but not including contracts relating to agricultural land." No such exception was expressly mentioned in Entry No. 5 because this entry related only to matters personal to individuals and did not relate directly to any property. While legislating in respect of such general subject the Legislature must be assumed to pass law only affecting property of which it had jurisdiction to legislate about. Gwyer, C. J. while delivering the judgment of the Federal Court in a reference on the Hindu Women's Rights to Property Act, 1937, reported in AIR rt 1941 FC 72 observed as follows:--

"There is a general presumption that a Legislature does not intend to exceed its jurisdiction. When a Legislature with limited and restricted powers makes use of a word of such wide and general import as "property", the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other.................."

The Hindu Succession Act, 1956, was passed merely to alter the personal law of succession applicable to Hindus. It had no reference to any kind of property in particular and was not meant to govern rights in agricultural tenancies. Sub-section (2) of S. 14 of the Act runs as follows:--

"For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being In force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."

This Sub-section indicates that it was only for the removal of doubts that this provision had been included. Even without this provision, the Act could not apply to agricultural holdings."

13. In Basavant Gouda Vs. Channabasawwa and another AIR 1971 Mysore 151, the Hon'ble Division Bench of Mysore High Court took a contrary view to the one taken by the Punjab and Haryana High Court, by holding that since the Hindu Succession Act come within the ambit of Item No. 5 of List III of ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 10 Schedule VII of the Constitution, therefore, its applicability to agricultural land cannot be excluded and it was held:

.

"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 applicable to succession to agricultural of 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; rt 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 and 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 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."

14. However, the view of Allahabad High Court in Prema Devi did not find favour with the Hon'ble Full Bench of Madhya Pradesh High Court in Nahar Hirasingh Vs. Mst. Dukalhin AIR 1974 Madhya Pradesh 141, wherein it was held that a law prescribing succession to any property (whether agricultural land or otherwise) falls under Entry 5 in Concurrent List III of the 7th ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 11 Schedule of the Constitution. This entry not only deals with personal law but specifically deals with "wills, intestacy and .

succession." It was further held that exclusion of the words "save as regards agricultural land" from Entry 5 in the Concurrent List of the 7th Schedule of the Constitution is deliberate. The Entry 5 in the Concurrent List of 7th Schedule of the Constitution is to be given of the widest construction as including all properties without any restriction unless for some reasons it is cut down by the terms of rt the Entry itself or by any other part of the Constitution. It is apt to reproduce paras 55 and 56, which reads thus:-

"55. In AIR 1970 All 238 it was held that under Entry 5 of the List III of the 7th Schedule when the Parliament legislated with respect to personal law, laws made under that Entry could not be said to apply to any particular property. That Entry merely gave the power to determine the personal law. It was further observed in that case that all laws relating to land and land tenures were within the exclusive jurisdiction of the State Legislature and even personal law becomes applicable to land tenures if so provided in the State law but it could not override State legislation. It was then observed:

"The Hindu Succession Act, 1956, was passed merely to alter the personal law of succession applicable to Hindus. It had no reference to any kind of property in particular and was not meant to govern rights in agricultural tenancies.........Sub- section (2) of Section 4 indicates that it was only for the removal of doubts that this provision had been included. Even without this provision, the Act could not apply to agricultural holdings."

56. With great respect, we are unable to agree with the above view in Prema Devi's case (supra). A law prescribing succession to any property (whether agricultural land or otherwise) falls under Entry 5 in Concurrent List III of the 7th Schedule of the Constitution. This entry not only deals with personal law but specifically deals with "wills, intestacy and succession." Under the Government of India Act, 1935, Entry 7 in List III covered "wills, intestacy and succession save as regards agricultural ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 12 land" and, therefore law relating to succession of agricultural land was outside the power of Central legislature. Under the Constitution, the exception as to agricultural lands does not find .

place in Entry 5 in Concurrent List, hence legislative power on the topic of succession entirely falls under this Entry. The exclusion of the words, "save as regards agricultural land" from Entry 5 in the Concurrent List of the 7th Schedule of the Constitution is deliberate. The Entry 5 in Concurrent List of the 7th Schedule of the Constitution is to be given the widest construction as including of all properties without any restriction unless for some reason it is cut down by the terms of the Entry itself or by any other parts of the Constitution reading it as a whole. It was pointed out in Megh rt Raj v. Allah Rakhia, AIR 1947 PC 72 while construing the scope of an Entry in the Government of India Act, 1935 that such an Entry was a part of the Constitution and it would, on ordinary principles receive the widest construction unless for some reason it was cut down either by the terms of the Entry itself or by other parts of the Constitution read as a whole. Thus, construing the Entry, it cannot be said that it did not apply to agricultural lands. Entry 18 in List II must be construed not to exclude topics specifically dealt in Entry 5 in Concurrent List III of the 7th Schedule of the Constitution. In case of repugnancy, Section 164 of the Code will prevail under Article 254 as it is a later law and as it received the assent of the President. The position has changed after the amendment of Section 164 by Act No. 38 of 1961. Under the amended Section 164, the rights of a Bhumiswami would be governed in matters of devolution by personal law. Thus, it now fully harmonises with the Hindu Succession Act."

15. In Nidhi Swain Vs. Khati Dibya, AIR 1974 Orissa 70, learned Division Bench of Orissa High Court held that applicability of the Hindu Succession Act was not excluded to the agricultural land. The view taken by Allahabad High Court in Prema Devi's case was dissented in the following manner:-

"6. Contention No. 2-- Mr. Misra next contended that the Hindu Succession Act of 1956 did not apply to agricultural lands. In support of this contention reliance is placed on a Bench decision of the Allahabad High Court in the case of Smt. Prema Devi v. Joint Director of Consolidation (Headquarter) at Gorakhpur Camp, AIR 1970 All 238. The reasoning for the conclusion is that Entry No. 5 ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 13 in the concurrent List of the Seventh Schedule of the Constitution which is the only entry under which the Central Legislature has the jurisdiction to pass the Hindu Succession Act relates only to .

personal law. Laws passed under this entry do not apply to any particular property. They merely determine the personal law. Entry No. 18 in List II (State List) in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are, therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can of become applicable to land tenures if so provided in the State Law, but it cannot override State Legislation. In List 3 wherever the entry relates to rights in land, agricultural land has been rt expressly excluded.

A Division Bench of this Court in the case of Sm. Laxmi Debi v. Surendra Kumar Panda, AIR 1957 Orissa 1, dealing with the point in paragraph 14 of the judgment stated- "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 Excellancy the Governor-General of India.

Gwyer, C. J., who delivered the judgment of the Court held that the Hindu Women's Rights to Property 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 Governor's 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 Schedule 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, ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 14 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 of good." The same reasoning has been advanced by a Division Bench of the Mysore High Court in the case of Basavant Gouda v. Smt. Channabasawwa, AIR 1971 Mys 151, to uphold the rt applicability of the Hindu Succession Act to agricultural lands. We prefer to follow our earlier decision on the point which also appeals to us to be the appropriate decision on the matter. Accordingly the contention of Mr. Misra is rejected."

16. In Jeewanram Vs. Lichmadevi, AIR 1981 Rajasthan 16, a leaned Single Judge of Rajasthan High Court concurred with the view taken by Punjab and Haryana High Court and it was held as under:-

"14. Section 22 of the Act came up for consideration in Jaswant's case (1970 Cur LJ 833) (Puni), in which, Entry No. 18, List II and Entries Nos. 5 and 6, List III were noticed and it was held that Section 22 of the Act does not embrace agricultural lands. I am in respectful agreement with this view and hold that the words "interest in any immoveable property of an intestate" do not include the interest in the agricultural land of an intestate and as such, after devolution of an interest upon two or more heirs specified in Class I of the Schedule appended to the Act and on transfer of his or her interest in the agricultural land, other heirs have no preferential right to acquire the interest of the transferor. I have come to the conclusion that transfer of interest in agricultural land is not covered by Section 22 of the Act."

17. A similar issue came up for consideration before the learned Single Judge of Karnataka High Court in Venkatalakshmamma Vs. Lingamma 1984 (2) KarLJ 296, wherein the Court dissented from the view taken by the Rajasthan ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 15 High Court and chose to follow the view taken by the Mysore High Court and it was held:

.

"17. In his submissions touching the scope of sec. 22 of the Act, the learned counsel for the respondents made a twofold submission. The first submission is that provision is not attracted to agricultural lands in view of the fact that the term "immovable property" referred to in subsection (1) of Section 22 cannot be said to include agricultural land. According to him, this is so for the of reason that the Act, which is a Central Act, could not have dealt with the question of transfers of agricultural property which was exclusively a State subject. IN this connection the learned counsel rt places strong reliance on a decision of the Rajasthan High court in Jeewanram Vs. Lichadevi and another (AIR 1981 Rajasthan, page

16). His second submission is that Section 22 is not attracted to a case involving a concluded transfer, and the aggrieved, if at all, can only take recourse to a suit and cannot arise in this proceeding any objection to the sale deed executed by Lingamma in favour of Venkatamma.

18. It is true that entry 18 in the State list-II of the Seventh Schedule to the Constitution of India, which enables the State legislature to make laws refers to, amongst others, the land and transfer and alienation of agricultural land. Entry 5 of list-3, the concurrent list, contains, amongst others, subjects joint family and partition, intestacy and succession and Entry-6 "transfer of property other than agricultural land". In Jeewanram's case the High Court of Rajasthan is of the view that in view of entry-6 of List III and Entry 18 of List II the parliament is not competent to deal with the transfer of agricultural land, the said subject falling within the exclusive domain of the State legislature and therefore the words immovable property used in Section 22 will have to be read as excluding agricultural lands. ON the other hand, it was argued by the learned counsel for the appellants that the parliament's power to legislate as to succession is covered by entry-5 of List III and in dealing with the question of succession, if incidentally the law provides for pre-emption in the case of proposed transfer of agricultural lands as has been provided under Section 22, it cannot be said that the parliament had dealt with the transfer of agricultural lands as such. IN this connection he submitted that in examining this question the pith and substance theory shall have to be kept in view. He places reliance on a Division Bench ruling of this Court in Basavant ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 16 Gouda vs. Smt.Channabasawwa and another (AIR 1971 Mysore, page 151 at paragraph-11). He also places reliance on two decision of the Supreme Court (i) Smt. Surasaiba-Lini Debi Vs. .

Phanindra Mohan Majumdar (AIR 1965 SC 1364). (ii) Waman Shriniwaskini Vs. Ratilal Bhagwandas and Co. (AIR 1959 SC

689).

19. As stated at para-13 above, on the death of her husband Venkataramanappa, having successes to his interest in the joint family, the first plaintiff was entitled to 1/6 share therein (in the of entire joint family properties). As stated at para-17 above, having succeeded to his sons estate on his death, she was entitled to 1/33 share in the joint family properties. The interest thus she rt had acquired in the joint family properties had been transferred by her to her daughter, second plaintiff, during the pendency of this proceeding.

20. Is the transfer by the first plaintiff of her interest in the property to which she had succeeded void under Section 22 of the Act is the question now. Section 22 of the Act reads: "22 (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any 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. The contention of the learned counsel for the appellants is that since the sale has come about without complying with the mandatory requirements of Section 22(1) the Court has to ignore that transfer declaring it as illegal and that on that footing the shares of the parties have to be worked out. If that is done, he contends, that to what the 2nd plaintiff would be entitled to in the suit is her own 1/6th share in the joint family ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 17 properties, it being 1/3rd of her father's ½ share, and not her share plus the share she has obtained on transfer from her mother.

21. Before examining the aforesaid contention of the learned contention of the learned counsel for the appellants on its own merits, let us find out as to whether Section 22 of the Act is not at all attracted to the case of agricultural lands as is being contended by the learned counsel for the respondents. In my view, there is no merit in this submission. With great respect I am of unable to agree with the views expressed in Jeewanram's case by the Rajasthan High Court. IN incorporating Section 22 in the Act the Parliament cannot be said to have encroached upon the rt rights of the State legislature in any manner. The Act does not deal with transfers pertaining to agricultural lands as such. It mainly provides rules and guidelines in the matter of succession amongst those governed by that law. This is the pith and substance of the Act. Only incidentally, in order to avoid certain complications that may arise by one of the co-heirs transferring his or her rights in the property to which she was entitled to succeed, this safeguard in the form of Section 22 is provided for.

The main subject underlying the principle embedded in Section 22 is to provide for a smooth succession to the property of the intestate amongst the various heirs. This aspect is high-lighted, though slightly in a different context, in a Division Bench decision of this Court in Basavant Gouda Vs. Smt. Channabasawwa and another (AIR 1971 Mysore, page 151). There, the argument was that the Act itself was not applicable to agricultural lands. It was contended that under entry 18 in list II VII Schedule of the Constitution, it was only the State legislature that was competent to make a law in respect of agricultural lands and therefore, the Act even in the matter of succession can deal with agricultural lands. This argument was repelled by this Court and I may usefully extract para-11 of the judgment. "ft. Mr. Savanur lastly contended that the Hindu Succession Act itself is not applicable to agricultural land 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. 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 ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 18 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 lands"

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 of 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 in List III of the Seventh rt Schedule of the Constitution and their applicability to agricultural lands cannot be excluded. This view of ours finds support in the decision Amar Singh Vs. Baldev Singh, AIR 1960 Punjab 666 (FB) and Shakuntala Devi Vs. Beni Madhav, AIR 1964 Allahabad

165."

22. Though Section 22 is attracted to the transfers involving agricultural lands or interest therein, the question that further arises for consideration is as to whether the transfer in question comes within the mischief of that provision. The answer to this question depends upon the ambit of Section 22. The section provides no bar to transfers as such. It only provides that if one of the heirs proposes to transfer his interest in the property or business he should give the fist option or a preferential right to other co-heirs to acquire the interest proposed to be transferred. It comes into play only where more than one heir succeeds to an estate. There is no bar to a single heir succeeding to the estate transferring his right. The intention behind this provision, it appears, is to prevent at that stage outsiders from meddling with the property left behind the deceased on the strength of that transfer. IN several instances where a male Hindu dies having at the time of his death an interest in a mitakshara co-parcenery property, his heirs, specified in the proviso to Section 6 who are entitled to succeed to his estate may continue to live jointly without causing any disruption in the family or management of the estate and this may be for various reasons. A stranger purchasing the interest of one of the heirs may not have the same sentiments and background and his interference may cause a lot of annoyance and hardship to the other members of the family. As a matter of caution to prevent such things happening the legislature, has reserved this preferential right to the other heirs to ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 19 acquire the interests sought to be sold by one of the heirs. This provision, in my view, will not apply in the case of a transfer by one heir in favour of another co-heir as in this case. My view also .

finds support from the following observations of the learned Author of Mulla's Hindu Law, 15th Edition at page 1029: "this section appears to have been thought necessary as an antidote to the inconvenient effects sometimes resulting from transfer to an outsider by a coheir of his or her interest in property simultaneously inherited along with other coheirs.....". "probably of the operation of the rule was meant to apply to an out and out sale of the interest or a gift of the same to an outsider. Sub- Section (2) would seem to indicate that intention."

18. A rt learned Single of Bombay High Court when confronted with the same preposition in Tukaram Genba Jadhav Vs. Laxman Genba Jadhav AIR 1994 Bombay, 247, held that the provisions of Hindu Succession Act applied to the agricultural land save and except, as provided under Section 4(2) of the Act. The judgments rendered by the Allahabad, Mysore and Rajasthan High Courts were discussed in the following manner:-

"8. For sake of ready reference, and proper understanding of rival contention, it is necessary to extract Entry 7 of List III of Govt. of India Act, 1935 and Entries 5, 6 and 7 of List III of Seventh Schedule to the Constitution as well as Entry 21 from List III of Govt. of India Act, 1935 and Entry 18 from List III of the Constitution. The said entries read as under:--

A. Entry 7, List III, Govt. of India Act, 1935: "Wills, intestacy, and succession, save as regards agricultural land."

Entry 5, List III, VIIth Schedule of Constitution of India:

"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."

Entry 6, List III, Vllth Schedule of Constitution of India :

"Transfer of property other than agricultural land, registration of deeds and documents."

Entry 7, List III, Vllth Schedule pf Constitution of India:

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"Contracts including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.".

B. Entry 21, List III, Government of India Act, 1935:

"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, Courts of Wards, encumbered and attached of estates, treasure trove."

Entry 18, List III, Vllth Schedule of Constitution of India:

"Land, that is to say, rights in or over land, land tenures rt including the relation of landlord and tenant, and the collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans, colonization."

(Note: Subject matter of devolution of agricultural land is omitted from the scope of Entry 18).

9. Let me now survey the decisions rendered by various Courts having some bearing on the question under consideration.

10. The learned counsel for the appellants relied on the opinion of the Federal Court in Special Reference No. 1 of 1941, in the matter of Hindu Women's Rights to Property, Act, 1937 reported in AIR 1941 FC 72. In this case the Federal Court interpreted Entry 7 of List III (the concurrent list) of the Govt. of India Act, 1935. The plain language of the said entry clearly excluded agricultural lands from the scope and ambit of the said entry. In its opinion rendered in the said special reference made to the Federal Court by the Governor General, the Federal Court opined that the expression "any property" used in S. 3 of the Hindu Women's Rights to Property Act, 1937 shall have to be interpreted to mean only such property in respect whereof the Central Legislature could enact law of succession by virtue of the provisions contained in Entry 7, List 111 of Govt. of India Act, 1935. The Federal Court answered the question referred to it by the Governor General by stating that the Hindu Women's Rights to Properly Act, 1937 and Hindu Women's Rights to Property. (Amendment). Act. 1938 did not operate to regulate succession to agricultural lands in the Governor's provinces.

11. In Laxmi Devi v. Surendra Kumar , the Division Bench of High Court of Orissa held that the framers of the Constitution had omitted the words "save as regards agricultural lands" from Item 5 of the concurrent list in Schedule VII of the Constitution of India ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 21 in order to have a uniform Personal Law throughout India. The High Court of Orissa held that the scope and ambit of Entry 5 forming part of VIIth Schedule to the Constitution of India was .

enlarged by the framers of the Constitution by reason of exclusion of the words "save as regards agricultural lands therefrom. In the context of the change of entries and the object of the framers of the Constitution, the Court held that the decision of the Federal Court in the above referred reference could not be applied for purpose of interpretation of Entry 5 of the concurrent list in of Schedule VII of the Constitution of India. In Nidhi Swami v. Khati Dibya, the Division Bench of the High Court of Orissa took the same view.

12. Sometime in the year 1960, the High Court of Punjab rendered two reported decisions having bearing on the question under consideration. In the case of Sant Ram Dass v. Gurdav Singh, AIR 1960 Punj 462, D. K. Mahajan, J. held that "succession to 'agricultural land was covered by Item 5 of List III of the VIIth Schedule of the Constitution of India and the Hindu Succession Act regulated succession in respect of all properties of Hindus including in respect of agricultural land. Having regard to the change in the language and content of Entry 5 in List III of the Vllth Schedule to the Constitution as contrasted from Entry 7 in List III of Govt. of India Act, 1935, it was held by the Court that the Hindu Succession Act though applicable to regulate succession in respect of agricultural lands was not ultra vires.

13. In Amar Singh v. Baldev Singh, a Full Bench of the High Court of Punjab took the same view. In this case the Full Bench of the High Court of Punjab held that S. 14 of the Hindu Succession Act, 1956 was valid and the legislation though providing for succession in relation to agricultural land fell within Entry 5 of List III of the Constitution. The Full Bench referred to the constitutional scheme and also referred to the provisions contained in Arts. 246(2) and 246(3) of the Constitution. The Court held that the subject matter of Wills, intestacy and succession was not within the exclusive competence of the State Legislature. In this case, the Full Bench of the High Court of Punjab also relied upon doctrine of "Pith and Substance" and observed that the alleged encroachment of the Entry 18 in the State List, if any, was incidental. If the subject legislated upon falls directly and substantially within the scope and ambit of entry in concurrent list, the question of alleged encroachment in the State List does not arise.

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14. In Baswant Gauda v. Smt. Channabasawwa reported in AIR 1971 Mysore 151, the High Court of Mysore held that the Hindu Succession Act, 1956 came within the ambit of Item 5 of List II of .

Schedule 7 of the Constitution and that the applicability of the Act to agricultural lands could not be excluded. The High Court of Mysore followed the ratio of the judgment of the Full Bench of High Court of Punjab referred to hereinabove.

15. 1 shall now refer to the judgments of High Court of Allahabad having bearing on the question under consideration.

16. In Shakuntala Devi v. Beni Madhav , the High Court of Allahabad in terms held that provisions of S. 14 of the Hindu Succession Act dealt with matters which came within ambit of rt Entry 5, List III of Schedule VII of the Constitution. Entry 5 of List III on VIIth Schedule to the Constitution when contrasted with Entries 6 and 7 also provides a definite clue for purpose of understanding the constitutional scheme. Entry 5 of List III in the Vllth Schedule does not exclude agricultural lands from the purview of Entry 5. Entries 6 and 7 dealing with the subject of transfer of property and contracts specifically exclude agricultural lands from the purview of the said entries. Non-exclusion of subject of agricultural lands from Entry 5 and specific exclusion thereof from Entries 6 and 7 is not accidental or incidental but is deliberate in view of intended change in the constitutional scheme.

17. The learned counsel for the appellant heavily relied upon the ratio of the judgment of the Division Bench of Allahabad High Court in the case of Smt. Prema Devi v. Joint Director of Consolidation at Gorakhpur . In this case the Division Bench of High Court of Allahabad was concerned with interpretation of U. P. Zamindari Abolition and Land Reforms Act, which regulated devolution of the tenancy rights a subject specifically referred to in S. 4(2) of Hindu Succession Act. Section 4(2) of the Hindu Succession Act, 1956, specifically provides that the Hindu Succession Act, 1956, shall not affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. To my mind it is clear from reading of S. 4(2) of the Act that only such laws which fall within the category of laws specified in S. 4(2) of the Act are excluded from the purview of the Hindu Succession Act, 1956 and S. 4(2) of the Act cannot be interpreted to mean that the Hindu Succession Act, 1956 is not at all ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 23 applicable to regulate succession in respect of agricultural lands. In the above referred case, the Division Bench of the High Court of Allahabad held that having regard to the subject of U.P. .

Zamindari Abolition and Land Reforms Act, S. 4(2) of the Act shall be applicable and the Hindu Succession Act, 1956 shall not affect the above referred local law under consideration. If understood in proper perspective having regard to the context in which the problem was discussed by the High Court of Allahabad in the above referred case, this judgment of the High Court of Allahabad of does not appear to take a view different from the view taken by other High Courts of the country. It is of considerable significance that in this case the Division Bench of High Court of Allahabad in rt terms approved the ratio of the Full Bench judgment of the High Court of Punjab . It is however, true that in this case the Division Bench of High Court of Allahabad observed that it did not agree with the ratio of the judgment of S. N. Katju, J. . If the ratio of the judgment is interpreted in conjunction with the ratio of the Full Bench judgment of High Court of Punjab referred to hereinabove and is restricted in its applicability to the cases falling under S. 4(2) of the Hindu Succession Act, 1956, it does not strike a different note. If it is interpreted to mean that Hindu Succession Act, 1956 is not at all applicable to regulate succession in respect of agricultural lands, I shall have no hesitation in dissenting with the view taken by the Court in the above referred case.

18. In Rudra Pratap v. Board of Revenue, U.P. , the Division Bench of High Court of Allahabad agreed with the ratio of earlier judgment of Allahabad rendered in the case of Smt. Prema Devi v. Joint Director of Consolidation at Gorakhpur . It is some what interesting to refer to the editorial note of All India Reporter appended to the Head Note of this judgment. The said editorial note reads as under :--

"The unqualified proposition that the Hindu Succession Act does not apply to agricultural lands does not seem to be correct as it leads to the result that succession to the agricultural land of a Hindu will in no case be governed by the Hindu Succession Act, 1956. Such a result, clearly does not follow from S. 4(2) of the Hindu Succession Act, 1956. Section 4(2) refers only to certain specific matters e.g. the fragmentation of agricultural holdings and provides that if there be any law providing for the prevention of such fragmentation, the operation of such law shall not be affected by the Hindu Succession Act."

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19. The learned counsel for the appellant at one stage invited attention of the Court to the judgment of High Court of Rajasthan in the case of Jeewanram v. Lichmadevi reported in AIR 1981 Raj .

16.. The said judgment, with respect, is not relevant as it deals with S. 22 of the Hindu Succession Act, 1956. As a matter of fact in his rejoinder, the learned counsel for the appellant himself submitted that reference to S.22 of Hindu Succession Act, 1956 or the decisions based therein were not relevant for purpose of deciding the controversy which is subject matter of this appeal.

20. I shall now refer to the judgment of this Court in the case of Dhananjaya v. Mst. Gajra . This judgement deals with the subject of interpretation and applicability of S. 151 of M.P. Land Revenue rt Code, 1954. The said provision provided for devolution of tenancy rights in respect of agricultural holdings. The subject matter is clearly covered under S. 4(2) of Hindu Succession Act, 1956. With respect, the ratio of this judgment is not relevant for deciding this appeal.

21. The learned counsel Shri Kumbhakoni invited the attention of the Court to several judgments of the Hon'ble Supreme Court interpreting and applying the doctrine of "Pith and Substance".

Some of the judgments relied upon by the learned counsel are listed herein for the sake of ready reference:--

(1) Synthetics & Chemicals Ltd. v. State of U.P., (2) M/s Ujagar Prints v. Union of India.

I have already referred to the judgment of the Hon'ble Supreme Court in the case of Accountants & Secretarial Services Pvt. Ltd. v. Union of India. On application of doctrine of Pith and Substance to Hindu Succession Act, 1956, I hold that the subject legislated upon falls under Entry 5 of List III of Seventh Schedule of Constitution and S.8 of the Act is applicable also to agricultural lands without affecting Ideal law concerning prevention of fragmentation, law fixing ceiling and law concerning tenancy rights in agricultural lands.

22. At the initial stage when the matter was first argued, I felt that there was a difference of opinion between several High Courts on the subject as to whether the Hindu Succession Act, 1956 was not applicable to regulate succession in respect of agricultural lands. After going through all the decisions cited at the bar with the assistance of learned counsel for the appellant and the learned counsel who appeared as Amicus Curiae to assist the Court, I have reached the conclusion that there is no real conflict between the various decisions of the High Courts in the ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 25 country. It may be stated in the passing that our Court has decided hundreds and thousands of matters during all these years on the footing that the Hindu Succession Act, 1956 is .

applicable to agricultural lands save and except to the extent provided in Section 4(2) of the Act. I am happy to conclude that after due scrutiny of all the relevant case-law on the subject, the conclusion of the Court is the same. In my opinion, there is no merit in the appeal. The appeal fails."

19. Similar issue came up before the coordinate Bench of of this Court in Baldev Parkash and others Vs. Dhlan Singh and others Latest HLJ 2008 (HP) 599, wherein his Lordship chose to rt follow the view taken by the Punjab and Haryana and Rajasthan High Courts and it was held:

"7. The Court will consider the first submission made by Mr. Bhupender Gupta with regard to the maintainability of the suit under section 22 of the Hindu Succession Act, 1956 since according to him the land in question is agricultural land. I have carefully gone through the plaint as well as written statement filed by defendants No.1 to 3. A specific averment has been made by defendants No.1 to 3 in paras 4, 7 and that the land in question has been purchased by them for agriculture purposes and they have sown crop on the same. This averment made in the written statement has not been denied at all in the replication filed by the plaintiffs.

8. Mr. Bhupender Gupta has strongly relied upon Jaswant and others versus Basanti Devi, 1970 PLJ 587 to buttress his submission that section 22 of the Hindu Succession Act, 1956 will not be applicable to the agricultural land. Their Lordships of the Punjab and Haryana High Court have held as under:-

"Mr. Roop Chand, the learned counsel for the respondent, stressed that the words 'immovable property' used in section 22 will include agricultural lands. Undoubtedly, they do. But one cannot lose sight of the fact that when the Central Legislature used these words it did so knowing fully well that it had no power to legislate regarding agricultural lands excepting for the purpose of devolution. Section 22 does not provide for devolution of agricultural lands. It merely gives a sort of right of preemption. In fact, as already pointed out, entry No.6 in ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 26 List III, clearly takes out agricultural lands from the ambit of the concurrent list. Agricultural land is specifically dealt with in entry No.18 of List II. The only exception .

being in the case of devolution. Therefore, it must be held that section 22 does not embrace agricultural lands."

9. The Hon'ble High Court of Rajasthan has relied upon the principles laid down by the Hon'ble Punjab and Haryana High Court in Jeewanram versus Lichmadev and anotherAIR 1981 Rajasthan 16 that Section 22 of the Hindu Succession Act, 1956 of will not be applicable to the agricultural land. The Hon'ble Single Jude has held as under:-

"The contention raised by the learned counsel for the rt appellant is that the learned Additional District Judge has committed a serious error of law when he held that Section 22 of the Act does not apply to the agricultural lands whereby denying a preferential right which he has under Section 22 of the Act. Undoubtedly this raises an important question regarding its interpretation and scope.

In other words, the question that I am called upon to determine in this appeal is whether the words "immoveable property of an intestate" include agricultural land of an intestate or not. To examine this question, it will be useful to read Section 22 (1) of the Act and Entries Nos. 5 and 6 contained in List III (Concurrent List) and Entry No.18 mentioned in List II (State List) of the Seventh Schedule of the Constitution. Section 22 (1) of the Act is 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 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) to (3) ..............

Explanation:- In this Section, 'court' means the court within the limits of whose jurisdiction the immoveable property is situate or the business is carried on, and includes any other court which the State Government ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 27 may, by notification in the Official Gazette, specify in this behalf." The aforesaid Entries read is under:-

"List III:

.

Entry No.5: Marriage and divorce; infants and minors;

adoption; will, 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. Entry No.6: Transfer of property other than agricultural of land; registration of deeds and documents. List II.

Entry No.18: Land, that is to say, right in or over land, rt 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.

Section 22 (1) of the Act occurs in Chapter II dealing with intestate succession which provides for a preferential right to acquire the interest proposed to be transferred. The word 'immoveable property' has not been defined in Section 3 of the Act. The Act was enacted by the Parliament for amending the law relating to intestate succession among Hindus. According to Entry No.5, List III the Parliament and subject to clause (1) of Article 246 of the Constitution, the legislature of the State have power to make laws 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. So also Parliament and subject to clause (1) of Article 246 of the Constitution, the legislature of the State have power to make laws in regard to transfer of property other than agricultural land; registration of deeds and documents. Subject to clauses (1) and (2) of Article 246 of the Constitution, the Legislature of the State has been empowered to make laws in respect of land, that is to say, right or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural lands; colonization.

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Mr. Rajendra Mehta, learned counsel for the respondent contended that Entry No.6, List III makes it abundantly clear that the Parliament does not possess jurisdiction to legislate over .

agricultural lands beyond the power it has under Entry No.5, List III, that is regarding "devolution". He, therefore, submitted that Section 22 of the Act will not over the case of agricultural lands.

On the basis of Sukhdeo Singh's case (1980 WLN 212) (Raj), Mr. M.L. Shreemali, learned counsel for the appellant urged that a Khatedar tenant is not an owner of a holding and, therefore, there of cannot be any transfer of his or her interest in the property and when there is no question of transfer of his or her interest in the property, Entry No.5, List III is not attracted. rt In Nagammal's case (1970) 1 Mad L.J. 358), it was observed by a learned single Judge of the Madras High Court as follows:

"When interpreting the Section, one can properly assume that Parliament had in mind the practice of preemption present in the country and the several pre-emption laws. A Legislature may be deemed to be conversant with the laws, current within its territory. But that will not permit the adoption of the incidents of preemption recognised or provided for in other pre-emption laws and in the Muslim law of pre-emption.

Parliament must have had in mind the two-fold aspect of the right n the pre-emption laws current in the country:

(1) the primary or substantive right to have an offer made and (2) the secondary or remedial right of the co-heirs if the property is sold without being first offered to them to take it from the purchaser. Thus Parliament has emphasized upon the primary right of pre-emption and left the remedial right to the common law for the Courts to mould it according to the circumstances".

It was held In re Hindu Women's Right to Property Act, AIR 1941 FC 72 while considering Section 3 of the Hindu Women's Rights to Property Act, 1937 as follows:

"No doubt if the Act does affect agricultural land in the Governors' Provinces, it was beyond the competence of the Legislature to enact it; and whether or not it does so must depend upon the meaning which is to be given to the word "property" in the Act. If that word necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers of the Legislature; but when a Legislature with ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 29 limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference to that kind of .

property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to construe the word "property" as referring only to those forms of property with respect to which the Legislature of which enacted the Act was competent to legislate; that is to say, property other than agricultural land. On this view of the matter, the so-called question of severability, on rt which a number of Dominion decisions, as well as decisions of the Judicial Committee, were cited in the course of the argument does not seek to divide the Act into two parts' viz.' the part which the Legislature was competent, and the part which it was competent, to enact. It holds that, on the true construction of the 'act and especially of the word "property" as used in it, no part of the Act was beyond the Legislature's powers. There is a general presumption that a Legislature does not intend to exceed its jurisdiction.

The question arose in Jothi Timber Mart v. Calicut Municipality, AIR 1970 SC 264 whether Section 126 of the Calicut City Municipal Act (Kerala Act No. XXX of 1961) is ultra vires. Entry No.52, List II, Schedule VII. It was observed by their Lordships of the Supreme Court as under:

"When the power of the Legislature with limited authority is exercised in respect of a subject- matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution".

In Joshi Timber Mart's case, their Lordships relied on it re Hindu Women's Rights to Property Act and held that the expression 'brought into the city' as used in Section 126 was, therefore, rightly interpreted by the High Court as meaning brought into the Municipal limits ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 30 for purposes of consumption, use or sale and not for any other purpose. The principles enunciated in the above mentioned decisions of the Federal Court and the .

Supreme Court, in my humble opinion, afford useful guide for interpreting the words "immoveable" used in Section 22 of the Act. Entry No.6, List III takes out agricultural land from the ambit of immoveable property." In view of the specific stand taken by defendants No.1 to 3 in their written statement coupled with the law laid of down by the Rajasthan High Court and Punjab and Haryana High Court, I am of the considered opinion that suit under section 22 of the Hindu Succession Act, 1956 rt was not maintainable seeking preferential right to purchase the agriculture land."

20. In Subramaniya Gounder and others Vs. Easwara Gounder and others, 2011 (2) MadLJ 467, a learned Single Judge of Madras High Court after following the view taken by the Punjab and Haryana High Court followed by Rajasthan High Court held as follows:-

"11. In the instant case, the appellants/plaintiffs have exercised their pre-emptive right from other legal heirs. But admittedly, the subject property was only an agricultural land. A careful reading of the provision of the Constitution of India and the dictum laid down in the above judgments would show that the agricultural lands will not cover under Section 22 of the Hindu Succession Act, because the transfer of agricultural land in the subject matter of state list. Under such circumstances, I am of the opinion that the prayer sought for by the appellants/plaintiffs is not legally sustainable. Though a submission is made by the learned Counsel appearing for the Respondents that if the third parties are allowed to enter into the suit property, the easementary right would be affected, I am of the opinion that the Appellants are always at liberty to file a partition suit to divide the suit property with metes and bounds. Hence, I do not find any merit in the second appeal, much less any substantial question of law that arises for consideration in the second appeal."

21. A Learned Division Bench of Allahabad High Court in Anjali Kaul & Another Vs. Narendra Krishna Zutshi, 2014 (9) ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 31 RCR (Civil) 2794 was again confronted with the same preposition and this time again while dissenting from the view taken by .

Rajasthan and Orissa High Courts, the Court chose to follow the view taken by it earlier in Prema Devi's case supra and it was held:-

"12. Learned counsel for opposite parties relied upon a case law of Smt.Prema Devi v. Joint Director of Consolidation, 1970 AIR (All) 238. In this case a Division Bench of this Court has of categorically held that:

"5. In the first place, we are of the opinion that the rt Hindu Succession Act, 1956, cannot be made applicable to agricultural plots. This Act was passed by the Central Legislature in 1956 and the only entry under which the Central Legislature had the jurisdiction to pass the Act, was entry No. 5 in the third list of the Seventh Schedule of the Constitution. This entry is as follows:--

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." This entry obviously relates only to personal law and laws passed under this entry do not apply to any particular property. They merely determine the personal law. In List 2, Entry No. 18 is as follows:--

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." This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State legislation.

It is noteworthy that in List 3 wherever the entry relates to rights in land 'agricultural land' has ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 32 expressly been excluded. For instance, Entry No. 6 is as follows:

"Transfer of property other than agricultural .

land............Entry No. 7 is as follows:--

Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.

No such exception was expressly mentioned in of Entry No. 5 because this entry related only to matters personal to individuals and did not relate directly to any property. While legislating in respect of such rt general subject the Legislature must be assumed to pass law only affecting property which it had jurisdiction to legislate about. Gwyer, C. J. while delivering the judgment of the Federal Court in a reference on the Hindu Women's Rights to Property Act, 1937, reported in AIR 1941 FC 72 observed as follows:--

"There is a general presumption that a Legislature does not intend to exceed its jurisdiction. When a Legislature with limited and restricted powers makes use of a word of such wide and general import as "property", the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other.................."

"For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being In force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."

This Sub-section indicates that it was only for the removal of doubts that this provision had been ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 33 included. Even without this provision, the Act could not apply to agricultural holdings."

6. Under the U. P. Zamindari Abolition and Land .

Reforms Act which regulated the tenancy rights, there is no provision applying personal law to any of the tenures created under that Act and thus the provisions of the Hindu Succession Act are wholly inapplicable to the land tenures under the U. P. Zamindari Abolition and Land Reforms Act.

of 12-A Learned counsel for the appellants and petitioners argued that in the case of Gandharb Misra v. Taramoni Devi and Ors., 1974 AIR (Ori) 70, as Division Bench of Orissa High Court has rt while dissenting from the decision of Prema Devi, 1970 AIR (All) 238 has held that:

"6. Contention No. 2-- Mr. Misra next contended that the Hindu Succession Act of 1956 did not apply to agricultural lands. In support of this contention reliance is placed on a Bench decision of the Allahabad High Court in the case of Smt. Prema Devi v. Joint Director of Consolidation (Headquarter) at Gorakhpur Camp, AIR 1970 All 238. The reasoning for the conclusion is that Entry No. 5 in the concurrent List of the Seventh Schedule of the Constitution which is the only entry under which the Central Legislature has the jurisdiction to pass the Hindu Succession Act relates only to personal law. Laws passed under this entry do not apply to any particular property. They merely determine the personal law. Entry No. 18 in List II (State List) in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are, therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State Legislation. In List 3 wherever the entry relates to rights in land, agricultural land has been expressly excluded.

A Division Bench of this Court in the case of Sm. Laxmi Debi v. Surendra Kumar Panda, AIR 1957 Orissa 1, dealing with the point in paragraph 14 of the judgment stated- "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 ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 34 Federal Court on a reference made by his Excellancy the Governor-General of India.

Gwyer, C. J., who delivered the judgment of the Court held .

that the Hindu Women's Rights to Property 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 Governor's 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 of 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 rt 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 Schedule 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." The same reasoning has been advanced by a Division Bench of the Mysore High Court in the case of Basavant Gouda v. Smt. Channabasawwa, AIR 1971 Mys 151, to uphold the applicability of the Hindu Succession Act to agricultural lands. We prefer to follow our earlier decision on the point which also appeals to us to be the appropriate decision on the matter. Accordingly the contention of Mr. Misra is rejected."

22. An analysis of the aforesaid judgments would clearly go to indicate that in so far as the High Courts of Punjab and Haryana, Allahabad, Rajasthan, Madras and learned Single Judge ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 35 of this Court are concerned, it has categorically been held that the provisions of Hindu Succession Act, more particularly Section 22 .

thereof do not apply to agricultural lands in the matter of succession, as it was beyond the competence of Parliament to legislate over the agricultural lands beyond the power it had under Entry 5 of List III of Seventh Schedule of the Constitution, i.e. of devolution and therefore, Section 22 of the Act do not apply to the cases of the agricultural lands.

23. rt While on the other hand, the High Courts of Mysore, Madhya Pradesh, Orissa and Karnataka have not agreed with the aforesaid view and have categorically held that the provisions of Section 22 of the Act are applicable to agricultural lands. In so far as the Bombay High Court is concerned, it has also held that the provisions of Act of 1956 is applicable to agricultural land save and except to the extent provided in Section 4(2) of the Act and further this Court did not find any conflict in the judgments rendered by the High Courts of Punjab, Mysore, Allahabad and Rajasthan.

24. From the aforesaid, it would be noticed that certain High Courts have rendered judgments as late in the year 2014, but did not notice the judgment rendered by the Hon'ble Supreme Court in Vaijanath and others Vs. Guramma and another (1999) 1 SCC 292. The Court therein was dealing with the preposition as to whether the term "property" would include agricultural lands. This interpretation was rendered in reference to the Hindu Women's Right to Property Act, 1937 along with amendments carried out therein by Hadrabad Hindu Women's Rights to Property (Extension to Agricultural Land) Act, 1954. The Hon'ble Supreme Court in no ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 36 uncertain terms held that though there is no definition of 'property' under the Act of 1937, but the term 'property' has to be given its .

ordinary meaning which would include agricultural land also. The decision rendered by the Federal Court in Hindu Women's Rights to Property Act, 1937 in re (supra) was distinguished in the following terms:-

of "6. However, the appellants rely upon a decision of the Federal Court Hindu Women's Right to Property Act. 1937, In re AIR 1941 Federal Court page 72 under which the validity of the said rt Original Act which had been enacted by the Central Legislature was considered by the Federal Court, Examining the question of legislative competence of the Central Legislature to enact in 1937 the Hindu Women's Right to Property Act the Federal Court examined the legislative entries under the Government of India Act, 1935. It held that under Entry 21 of List II which applied to the Provincial Legislatures, laws with respect to devolution of agricultural land could be enacted only by the Provincial Legislature. It also noted that in List III, that is to say, the Concurrent List, Entry 7 was wills, intestacy and succession save and except agricultural land'. The Federal Court observe that while the Act purports to deal in quite general terms with property' or 'separate property' of a Hindu dying intestate or his interest in joint family property, it does not distinguish between agricultural land and other property and. therefore, is not limited in terms to the latter. However, looking to the competence of the Central Legislature to enact such a law the word 'property' will have to be suitable construed. 'When legislature with limited and restricted powers makes use of such a word of such a wide and general import, the presumption must surely be that it is using it with reference to that kind or property with respect to which it is competent to legislate and to no other. The Federal Court, therefore, restricted the application of the Hindu Women's Rights to Property Act, 1937 by excluding agricultural lands from its purview."

25. Apart from the above, even Entry 5 of the concurrent list being List III of Seventh Schedule also came up for consideration and it was held that there was no exclusion of ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 37 agricultural land from Entry 5, which covers Wills, intestacy and succession, as also joint family and partition. It is apt to reproduce .

paras 7 and 8 of the judgment, which read thus:-

"7. The same constraint do not apply to the said Hyderabad Act of 1952 passed by the Legislature of the State of Hyderabad, which has received the assent of the President on 22-7-1953. The relevant Legislative entries under the Constitution of India are of somewhat different. Entry 5 in the Concurrent List, being List III in the 7th Schedule of the Constitution, is as follows:

"Marriage and divorce; infants and minors; rt 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."

8. There is no exclusion of agricultural lands from Entry 5 which covers wills, intestacy and succession as also joint family and partition. Although Entry6 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 context 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."

::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 38

26. It is evident from the aforesaid judgment of the Hon'ble Supreme Court the word "property" as well as the interest .

in joint family property are wide enough cover agricultural land also. Though, this interpretation was given while construing the provisions of the Hindu Women's Rights to Property Act, 1937, but the same would be equally applicable while construing the words of "interest on immoveable property of an intestate" as appearing in the Hindu Succession Act.

27. rt The Hon'ble Supreme Court has categorically held that in the entire Hindu Women's Rights to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land and it was held that the words "property" in general term, covers all kind of properties including agricultural land. Thereafter it was further held that a restricted interpretation was given to the original Hindu Women's Rights to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excludes the legislative competence of the Central Legislature over agricultural land.

28. It is evident from the judgment rendered by the Hon'ble Supreme Court that the view taken by the High Courts of Mysore, Madhya Pradesh, Orissa and Karnataka are more in tune with the judgment of the Hon'ble Supreme Court, meaning thereby that the view taken by the Punjab, Allahabad, Rajasthan, Madras and even this Court requires to be revisited and relooked, more particularly in light of the interpretation given by the Hon'ble Supreme Court to Entry 5 in the concurrent List, being List III in ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP 39 the Seventh Schedule of the Constitution, which according to it did not exclude agricultural land and also in light of the fact that the .

Hon'ble Supreme Court has also distinguished the judgment rendered by the Hon'ble Federal Court in Hindu Women's Rights to Property Act, 1937 in re (AIR 1941 FC 72).

29. The question involved in the appeal is of great of importance and is likely to come up repeatedly not only before this Court but also in the Subordinate Courts and therefore, looking into rt the importance of the question raised, it was desirable that there should be an authoritative pronouncement on the issue by a Larger Bench.

30. Accordingly, let the Registry place the matter before Hon'ble the Chief Justice for consideration and constitution of a Larger Bench for decision on the following point:-

"Whether the provisions of Hindu Succession Act apply to agricultural lands?"

(Tarlok Singh Chauhan), Judge.

October 14, 2015 (KRS) ::: Downloaded on - 15/04/2017 19:12:20 :::HCHP

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