TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 1975
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....namely, Santokh Singh [Original Plaintiff] and Nathu Ram [Original Defendant No.1], sons of Lajpat S/o Rupa inherited, among others, certain agricultural lands after the death of their father. According to Santokh Singh an arrangement was arrived at, in terms of which the brothers were to be in separate enjoyment of certain specified pieces of land. Since Nathu Ram was not interested in continuing with said arrangement he gave a legal notice to Santokh Singh and later executed a registered sale deed on 19.08.1991 in respect of his interest in the lands in favour of one Babu Ram [Original Defendant No.2] S/o Kanshi Ram. (b) Soon thereafter, Civil Suit No.194 of 1991 was filed by Santokh Singh in the Court of Senior Sub-Judge, Hamirpur praying for permanent prohibitory injunction and declaration. It was inter alia submitted that as a co-sharer, the Plaintiff had a preferential right to acquire the land which was sought to be transferred by Defendant No.1 in favour of Defendant No.2. The suit was contested and the trial court by its judgment and order dated 04.05.1994 dismissed said suit. (c) The Plaintiff, being aggrieved filed Civil Appeal No.86 of 1994 in the Court of Distric....
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....s either the Hindu Women's Rights to Property Act, 1937 (Central Act, 18 of 1937), which was passed by the Legislative Assembly on 4th February, 1937, and by the Council of State on 6th April 1937, and which received the Governor-General's assent on 14th April 1937, or the Hindu Women's Rights to Property (Amendment) Act, 1938 (Central Act, 11 of 1938), which was passed in all its stages after 1st April 1937, operate to regulate (a) succession to agricultural land? (b) devolution by survivorship of property other than agricultural land? (2) Is the subject of devolution by survivorship of property other than agricultural land included in any of the entries in the three Legislative Lists in Sch. 7, Government of India Act, 1935?" The observations of the Federal Court relevant for the present purposes were:- "..........After 1st April 1937, the Central Legislature was precluded from dealing with the subjects enumerated in List II of Sch. 7, Constitution Act, so far as the Governors' Provinces were concerned. Laws with respect to the "devolution of agricultural land" could be enacted only by the Provincial Legislatures (entry No.21 of List II), and "wills, intestacy and successi....
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....ltural land. 87. Estate duty in respect of property other than agricultural land. 56. Duties in respect of succession to property other than agricultural land. 88. Duties in respect of succession to property other than agricultural land. LIST II 20. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases; improvement of stock and prevention of animal diseases; veterinary training and practice; pounds and the prevention of cattle-trespass. 14. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases. 21. 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 estates; treasure trove. 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. 27. Tr....
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....for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings." Section 22 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 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 ....
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....hich 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 FC 72 (K) would no longer hold good." 9. Before Full Bench of Punjab High Court in Amar Singh and Ors. vs. Baldev Singh and Ors.[ AIR 1960 Punjab 666] challenge was raised in the context of rights of a Hindu female under Section 14 of the Act. It was held inter alia that Section 14 of the Act was "within the legislative field spanned in Entry 5 of List III, the concurrent List". However, a Division Bench of the same High Court in Jaswant and ors. vs. Smt. Basanti Devi [1970 PLJ 587 = 1970 Punjab Law Reporter Vol. 72 page No.958] took a different view while considering effect of Section 22 as regards agricultural lands. The discussion in that be....
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....n 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". 11. The decisions rendered by various High Courts show the divergent views in the matter. Some High Courts have held that the provisions of Section 22 of the Act would apply to agricultural lands and in the process have followed the reasoning that weighed with the Orissa High Court in Laxmi....
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....he point and concluded that the provisions of Section 22 of the Act would apply in relation to succession to agricultural lands. The conclusion arrived at in the leading judgment with which the other learned Judge concurred, was:- "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 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." The view taken by the Division Bench was followed by the High Court in the present matter. 13. In the aforesaid background, we are called upon to decide the applicability of Section 22 of the Act in respect of agricultural lands. Before we consider the issues in....
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.... III by expression "...succession, save as regards agricultural land" which dealt with concurrent powers. The provincial legislature had thus exclusive competence with regard to transfer, alienation and devolution of agricultural land. In the circumstances, the Federal Court had answered the first question that the provisions of Hindu Women's Rights to Property Act, 1937 CIVIL APPEAL NO. .............OF 2019 (@ SLP(C)NO. 31039 OF 2018) Babu Ram v. Santokh Singh (deceased) through His LRs and others. 18 and Hindu Women's Property (Amendment) Act, 1938 would not regulate succession to agricultural lands in the provinces. 15. But the situation underwent considerable change after the Constitution of India was adopted. (i) The subjects "Transfer, alienation of agricultural land" are retained in the State List in the form of Entry 18 but the subject "devolution" was taken out. (ii) As against earlier Entry 7 of List III where the subject, "succession" came with express qualification, "...save as regards agricultural land", that qualification is now conspicuously absent in comparable Entry 5 in the present List III. The expression in Entry 5 today is "...intestacy and succession". ....
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....ion 22 of the Act. But we are not called upon to consider that facet of the matter. 18. We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within the competence of the Parliament? The "right in or over land, land tenures ....." are within the exclusive competence of the State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question. 19. We may consider the matter with following three illustrations:- a) Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-emption may apply in the matter and any of t....