Property rights and descent-based restrictions: retrospective invalidity of a land alienation provision was held severable from its prospective operation.

Section 13A of the Punjab Alienation of Land Act, as inserted by the 1938 amendment, was analysed for compatibility with Section 298(1) of the Government of India Act, 1935. The provision operated by voiding benami transactions and enabling recovery of possession, but was held to offend the constitutional protection where, in effect, it prevented a subject domiciled in India from acquiring, holding, or disposing of property on the ground of descent only. The analysis also held that Section 298(2)(a) protected only prospective prohibitions and did not authorise reopening completed transactions or disturbing acquired titles, so the retrospective reach of Section 13A was invalid, though severable from its prospective operation.

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Issues: (i) Whether Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938, which inserted Section 13A into the Punjab Alienation of Land Act, 1900, contravened Section 298(1) of the Government of India Act, 1935, by prohibiting acquisition, holding, or disposal of property on the ground of descent only. (ii) Whether Section 298(2)(a) of the Government of India Act, 1935, saved the provision so far as it operated retrospectively on benami transactions already completed before the amending Act came into force.

Issue (i): Whether Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938, which inserted Section 13A into the Punjab Alienation of Land Act, 1900, contravened Section 298(1) of the Government of India Act, 1935, by prohibiting acquisition, holding, or disposal of property on the ground of descent only.

Analysis: The prohibition created by Section 13A operated by avoiding benami transactions and authorising recovery of possession by the alienor. The Court held that, in some of the cases to which the provision would apply, the operative disqualification would be descent alone, because membership of an agricultural tribe was generally a matter of descent. The proper test was the effect of the law on the personal right conferred by Section 298(1), not merely the legislative object behind it. Since the provision in some cases prohibited a subject domiciled in India from acquiring, holding, or disposing of property on the ground of descent only, it fell within the mischief of the constitutional protection.

Conclusion: Section 5, by inserting Section 13A, contravened Section 298(1) of the Government of India Act, 1935, and was ultra vires to that extent.

Issue (ii): Whether Section 298(2)(a) of the Government of India Act, 1935, saved the provision so far as it operated retrospectively on benami transactions already completed before the amending Act came into force.

Analysis: The saving clause was held to protect only prohibitions directed to future transactions. It did not authorise reopening transactions already completed or vacating titles already acquired. The retrospective part of Section 13A therefore went beyond the protection afforded by Section 298(2)(a). The retrospective element was, however, severable by deleting the words making the section applicable to transactions entered into before the commencement of the Act, leaving the remaining prospective operation intact.

Conclusion: Section 298(2)(a) did not save the retrospective operation of Section 13A, and that retrospective element was invalid, though severable.

Final Conclusion: The appeal succeeded only to the extent necessary to declare the retrospective part of the impugned provision void, while leaving the prospective operation unaffected and entitling the respondent to protection against proceedings under the impugned Act in respect of the antecedent transaction.

Ratio Decidendi: A statutory prohibition infringing the personal right protected by Section 298(1) is invalid where, in its operation, it discriminates on the ground of descent only; and the saving in Section 298(2)(a) extends only to prospective prohibitions, not to the reopening of completed transactions or acquired titles.

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