TaxTMI 
TaxTMI 
2022 (9) TMI 1451
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....254 and 21 of the Constitution of India. FACTS: 2. Genealogy (pedigree) relevant for the case is as follows: From the above pedigree it is clear that the appellants are the widow and daughter of Ishwar Singh whereas the contesting respondent nos. 3 and 4 are the sons of Ishwar Singh. The dispute relates to the agricultural property held by Mukhtiar Singh. He had three sons viz Mahinder Singh, Jagdish Singh and Ishwar Singh. All of them pre-deceased him. Mukhtiar Singh died on 06.06.1997 and his inheritance relating to the branch of Ishwar Singh was succeeded by his grandsons (sons of Ishwar Singh i.e. Jaidev and Amit - respondent nos. 3 and 4) under Section 50(a) of the 1954 Act. Revenue records were corrected accordingly. 3. It would be appropriate to reproduce Section 50 of the 1954 "50. General order of succession from males. -- Subject to the provisions of Section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below: a) Male lineal descendants in the male line of the descent: Provided that no member of this class shall inherit i....
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....me, the present appeal has been preferred. 8. Initially, respondent Nos.3 and 4 had put in appearance. It is thereafter an I.A. was filed by the Advocate on Record to seek discharge from the case. Such I.A. was allowed on 05.05.2022. Shri Anand Yadav, Advocate was appointed as Amicus Curiae to assist the Court. 9. We may briefly note the submissions advanced by the learned counsel for the appellants as also the learned Amicus. Appellant's arguments: 10. Briefly stated the following arguments were raised on behalf of appellants: a. Succession provided in 1956 Act will prevail over the succession provided in 1954 Act in view of Article 254 of the Constitution, as there is clear repugnancy. b. Section 4(2) of the 1956 Act having been deleted by an amendment in 2005, there would be no justification to apply the provisions of succession given in the 1954 Act as the same would now be governed by the 1956 Act. c. After the judgement in the case of Vineeta Sharma vs. Rakesh Sharma & Ors. [(2020) 9 SCC 1] , the repeal of Section 4(2) of 1956 Act would relate back being retrospective and also that the amendment in Section 6 of 1956 Act would be held to ....
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....efore the Judgment in the case of Kesavananda Bharati that is 24.04.1973, would stand protected under Article 31B of the Constitution and, therefore, the challenge to the validity of provisions of the 1954 Act must fail. 14. The reasoning given by the High Court, as stated above, is the correct interpretation of the judgments of the Court referred to above and as such does not warrant any interference. We may also make a note that, before us learned counsel for the appellants has neither raised this argument nor there is any challenge to the aforesaid reasoning of the High Court. It may also be pertinent to note that before the High Court other arguments were not addressed. However, as the same have been raised, they are being dealt with hereinafter. 15. We will now deal with the arguments raised by the counsel for the appellants and the respondents in response thereto. I. Repugnancy - Article 254 of the Constitution 16. Learned counsel for the appellants has vehemently urged that the 1954 Act would be hit by Article 254 of the Constitution for the reason that the 1956 Act is enacted by the Parliament whereas the 1954 Act is a State Act. It is also submitted that the 19....
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....matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. xxx xxx xxx Entry 7: Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land." 19. Apart from the fact that a bare reading of Article 254 reflects that it refers to repugnancy in law made with respect to matters enumerated in the Concurrent list (List III), this Court has also laid down that question of repugnancy would not come into existence unless it is first established that both enactments are under the Concurrent list (List III). In this respect it would be appropriate to refer to the law laid down by this Hon'ble Court in the case of M/s. Innoventive Industries Ltd. vs. ICICI Bank and Ors. [(2018) 1 SCC 407, page 450, para 50-51] It is held therein that the question of examining repugnancy would not apply at all unless it is first established that both enactments under the Central and the State are with respect to matters enumerated under the Concurrent list (List III). Consequently, it is submitte....
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....f Section 4(2) of the 1956 Act would not help the appellants. 23. It is well settled that all amendments are deemed to apply prospectively unless expressly specified to apply retrospectively or intended to have been done so by the legislature. Reference may be had to the following decisions: [L.R. Brothers Indo Flora Ltd. v. Commissioner of Central Excise [(2020) SCC Online SC 705, para 27]; Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602 para 26]; Union of India v. Zora Singh [(1992)1 SCC 673, para 12] In the present case there is no such intention reflecting from the amending Act. 24. By virtue of Section 6 of the General Clauses Act, the repeal of an enactment would not affect the previous operation of such an enactment. In Shree Bhagwati Steel Rolling Mills v. CCE [(2016) 3 SCC 643, para 12], this Court has held that repeal is to be treated similarly as an omission and Section 6 of the General Clauses Act would apply equally to an omission as it would apply to a repeal. On account of Sections 6(b) and 6(c) of General Clauses Act, the omission of Section 4(2) of 1956 Act cannot affect the previous operation of the said Section 4(2). Paragraphs ....
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....turo. If the expression "delete" would amount to a "repeal", which the appellant's counsel does not deny, it is clear that a conjoint reading of Halsbury's Laws of England and the Legal Thesaurus cited hereinabove both lead to the same result, namely, that an "omission' being tantamount to a "deletion" is a form of repeal." 25. The deletion of Section 4(2) took place w.e.f 09.09.2005. Therefore, the effect of the deletion can only be in respect of successions which opened on or after 09.09.2005. This is because under Section 6(b) and 6(c) of the General Clauses Act repeal cannot affect the previous operation of any enactment so repealed and cannot affect the previous operation of any enactment so repealed and cannot affect any right which may have been acquired or accrued. In the present case, it is to be held that succession has opened prior to 09.09.2005, the rights of the descendants in terms of Section 50 became crystallized on account of the said Section read with Section 4(2) of the 1956 Act. Therefore, the deletion of Section 4(2) cannot have retrospective effect. 26. There is one more reason, why the existence of Section 4(2) in the 1956 Act and its deletion will not ....