BABU RAM versus SANTOKH SINGH (DECEASED) THROUGH HIS LRS AND OTHERS on 7 March 2019

926 SUPREME COURT REPORTS [2019] 2 S.C.R.[2019] 2 S.C.R. 926

[2019] 2 S.C.R. 926

A

BABU RAM

v.

SANTOKH SINGH (DECEASED) THROUGH HIS LRSAND OTHERS

B

(Civil Appeal No. 2553 of 2019)

MARCH 07, 2019

[UDAY UMESH LALIT AND M. R. SHAH, JJ.]

Hindu Succession Act, 1956:

C

s. 22 – Preferential right to acquire property in certain cases– Applicability of s. 22 to agricultural land – Held: Preferentialright given to an heir of a Hindu u/s. 22 is applicable even if theproperty is an agricultural land – However, s. 22 is not applicablein cases of devolution of tenancy rights with respect to agriculturalDholdings.

Dismissing the appeal, the Court

HELD: 1.1 In the instant case it is nobody’s case that thematter relating to succession to an interest in agricultural landsis in any way dealt with by any State legislation operating in theEState of Himachal Pradesh or that such legislation must prevailin accordance with the principles under Article 254 of theConstitution. The field is occupied only by Section 22 of the HinduSuccession Act, 1956 insofar as State of Himachal Pradesh isconcerned. The High Court was, therefore, absolutely right inFholding that Section 22 of the Act would operate in respect ofsuccession to agricultural lands in the State. [Para 16][942-C, D]

1.2 Though, succession to an agricultural land is otherwisedealt with under Section 22 of the Act, the provisions of Section4(2) of the Act, before its omission, had made it clear that theGprovisions of the Act would not apply in cases inter alia ofdevolution of tenancy rights in respect of agricultural holdings.Thus, the effect of Section 4(2) of the Act before its deletion wasquite clear that, though the general field of succession includingin respect of agricultural lands was dealt with under Section 22 of H

the Act, insofar as devolution of tenancy rights with respect toagricultural holdings were concerned, the provisions of Section22 would be inapplicable. The High Court was, therefore,absolutely right in its conclusion. However, with the deletion ofSection 4(2) of the Act, now there is no exception to theapplicability of Section 22 of the Act. [Para 17][942-F, H]

1.3 The “right in or over land, land tenures ….” are withinthe exclusive competence of the State legislatures under Entry18 of List II of the Constitution. Pre-emption laws enacted byState legislatures are examples where preferential rights havebeen conferred upon certain categories and classes of holders incases of certain transfers of agricultural lands. The preferentialrights by s. 22 is considered with three illustrations. (a) Threepersons, unrelated to each other, had jointly purchased anagricultural holding, whereafter one of them wished to dispose ofhis interest. The normal principle of pre-emption may apply inthe matter and any of the other joint holders could pre-empt thesale in accordance with rights conferred in that behalf byappropriate State legislation. (b) If those three persons were realbrothers or sisters and had jointly purchased an agriculturalholding, investing their own funds, again like the above scenario,the right of pre-emption will have to be purely in accordance withthe relevant provisions of the State legislation. (c) But, if, thevery same three persons in illustration (b) had inherited anagricultural holding and one of them was desirous of disposing ofhis or her interest in the holding, the principles of Section 22 ofthe Act would step in. The source of title or interest of any of theheirs in the third illustration, is purely through the successionwhich is recognized in terms of the provisions of the Act. Sincethe right or interest itself is conferred by the provisions of theAct, the manner in which said right can be exercised has alsobeen specified in the very same legislation. Therefore, the contentof preferential right cannot be disassociated in the instant casefrom the principles of succession. They are both part of the sameconcept. [Para 18, 19][943-B-H]

AB

C

DE

F

G

H

A1.4 When the Parliament thought of conferring the rightsof succession in respect of various properties includingagricultural holdings, it put a qualification on the right to transferto an outsider and gave preferential rights to the other heirs witha designed object. Under the Shastrik Law, the interest of aBcoparcener would devolve by principles of survivorship to whichan exception was made by virtue of Section 6 of the Act. If theconditions stipulated in Section 6 were satisfied, the devolutionof such interest of the deceased would not go by survivorshipbut in accordance with the provisions of the Act. Since the rightitself in certain cases was created for the first time by theCprovisions of the Act, it was thought fit to put a qualification sothat the properties belonging to the family would be held withinthe family, to the extent possible and no outsider would easily beplanted in the family properties. It is with this objective that apreferential right was conferred upon the remaining heirs, in caseDany of the heirs was desirous of transferring his interest in theproperty that he received by way of succession under the Act.[Para 20][944-A-D]

1.5 The preferential right given to an heir of a Hindu underSection 22 of the Act is applicable even if the property in questionEis an agricultural land. The High Court was right in upholding thejudgment and decree passed by the District Judge. [Para 21][944-D-E]

Sm. Laxmi Debi v. Surendra Kumar Panda and OthersFAIR 1957 Orissa 1 : 22 (1956) CLT 466 – approved.

In the matter of the Hindu Women’s Rights to PropertyAct, 1937 (1941) 3 FCR 12 : AIR 1941 FC 72; RoshanLal v. Pritam Singh and others R.S.A. No. 258 of 2012decided on 1.3.2008; Amar Singh and Ors. v. BaldevGSingh and Ors. AIR 1960 Punjab 666(FB); BasavantGouda v. Channabasawwa and Anr. AIR 1971 Mysore151; Nidhi Swain and Ors. v. Khati Dibya and Ors.AIR 1974 Orissa 70; Venkatalakshmamma & Ors. v.Lingamma & Anr. 1984 SCC OnLine Kar 141; TukaramGenba Jadhav and Ors. v. Laxman Genba Jadhav andH

Anr. AIR 1994 Bombay 247 : (1994) 96 BLR 227 ;Bharat v. Anjanabai (2007) (6) Mh.LJ 706 ; Vaijanathand ors. v. Guramma and Anr. (1999) 1 SCC 292 : [1998]3 Suppl. SCR 36 – referred to.

Jaswant and ors. v. Smt. Basanti Devi 1970 PLJ 587 :1970 Punjab Law Reporter Vol. 72 page No. 958 ;Smt. Prema Devi v. Joint Director of Consolidation (Headquarter) at Gorakhpur Camp and Ors. AIR 1970Allahabad 238 ; Nahar Hirasingh and Ors. v. Dukalhinand ors. AIR 1974 MP 141 ; Jeewanram v. Lichmadeviand Anr AIR 1981 Rajasthan 16 ; Balkaur Singh v.Gurmail Singh 2007 SCC OnLine P&H 1257;Subramaniya Gounder & Ors. v. Easwara Gounder2010-5-L.W. 941 – disapproved.

B

C

Case Law Reference

D

(1941) 3 FCR 12AIR 1957 Orissa 1AIR 1960 Punjab 666AIR 1971 Mysore 151AIR 1974 Orissa 70AIR 1994 Bombay 247(2007) (6) Mh.LJ 706AIR 1994 Bombay 247[1998] 3 Suppl. SCR 361970 PLJ 587AIR 1970 Allahabad 238AIR 1974 MP 141AIR 1981 Rajasthan 162010-5-L.W. 941

ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 2553of 2019.

From the Judgment and Order dated 07.05.2018 of the High Courtof Himachal Pradesh at Shimla in RSA No. 457 of 2002.

Sanchar Anand, Apoorv Singhal, Devendra Singh, Advs. for theBAppellant.

Ranjan Mukherjee, Ms. Jayatee Chatterjee, Ms. AprajitaMukherjee, S. Bhowmick, Advs. for the Respondents.

The Judgment of the Court was delivered byC

UDAY UMESH LALIT, J. 1. Leave granted.

2. This appeal arises out of final judgment and order dated07.05.2018 passed by the High Court[1] in Regular Second Appeal No.457of 2002 and raises questions regarding scope and applicability of SectionD22 of the Hindu Succession Act, 1956 (hereinafter referred to as theAct), and particularly, whether preferential right given to an heir of aHindu under said Section 22 will be inapplicable if the property in questionis an agricultural land.

3. The facts leading to the filing of this appeal, in brief, are asEunder:

(a) Two brothers, namely, Santokh Singh[2] and Nathu Ram[3], sonsof Lajpat S/o Rupa inherited, among others, certainagricultural lands after the death of their father. Accordingto Santokh Singh an arrangement was arrived at, in termsFof which the brothers were to be in separate enjoyment ofcertain specified pieces of land. Since Nathu Ram was notinterested in continuing with said arrangement he gave alegal notice to Santokh Singh and later executed a registeredsale deed on 19.08.1991 in respect of his interest in theGlands in favour of one Babu Ram[4] S/o Kanshi Ram.

H

1High Court of Himachal Pradesh at Shimla 2Original Plaintiff 3Original Defendant No. 1

4Original Defendant No. 2

(b) Soon thereafter, Civil Suit No.194 of 1991 was filed bySantokh Singh in the Court of Senior Sub-Judge, Hamirpurpraying for permanent prohibitory injunction and declaration.It was inter alia submitted that as a co-sharer, the Plaintiffhad a preferential right to acquire the land which was soughtto be transferred by Defendant No.1 in favour of DefendantNo.2. The suit was contested and the trial court by itsjudgment and order dated 04.05.1994 dismissed said suit.

(c) The Plaintiff, being aggrieved filed Civil Appeal No.86 of1994 in the Court of District Judge, Hamirpur, which appealwas partly allowed. The Appellate Court placed reliance onthe decisions reported in AIR 2000 Madras 516 and AIR1988 Orissa 285 and held that the Plaintiff had a preferentialright under Section 22 of the Act to acquire the suit landmeasuring 19 kanals half of the entire land entered in KhataNo.25 min, Khatoni No.29 min, Khasra No.1119 measuring38 kanals 1 marla situated in Tika Badehra, Tappa Badohag,Tehsil Nadaun, District Hamirpur, (H.P.) on payment of saleconsideration amounting to Rs.60,000/-. It also held thetransfer of suit land by Defendant No.1 in favour ofDefendant No.2 to be illegal, null and void and hit by theprovisions of Section 22 of the Act. It directed DefendantNo.2 to transfer the suit land in the name of the Plaintiff onreceipt of sale consideration amounting to Rs.60,000/- withinthree months.

(d) Defendant No.2, being aggrieved, carried the matter furtherby filing Regular Second Appeal No.457 of 2002 in the HighCourt, which inter alia framed following substantial questionof law:

“1. Whether Section 22 of the Hindu Succession Actexcludes interest in agricultural land of an intestate and thepreferential right over “immovable property” as envisagedin the said provision is confined only to business and suchimmovable property which does not include the agriculturalland?”

A

B

CD

E

F

G

H

A(e)Relying principally on the decision of the Division Bench ofthe High Court in RSA No.258 of 2012 (Roshan Lal vs.Pritam Singh and others[5]), the High Court dismissed saidSecond Appeal, which decision is presently under challengeby Defendant No.2-Appellant.

B

4. The challenge before this Court is confined to the applicabilityof Section 22 of the Act to agricultural lands and the factual facets of thematter are not in dispute. We have heard Mr. Sanchar Anand, learnedAdvocate for the Appellant and Mr. Ranjan Mukherjee, learned Advocatefor heirs of Respondent No.1 – Plaintiff. With the assistance of theClearned Counsel we have considered all the relevant decisions on thepoint.

5. On a reference made under Section 213 of the Government ofIndia Act, 1935 (hereinafter referred to as ‘1935 Act’), the followingquestions were considered by the Federal Court “In the matter of theDHindu Women’s Rights to Property Act, 1937"[6] :- “(1) Does either the Hindu Women’s Rights to Property Act,1937 (Central Act, 18 of 1937), which was passed by theLegislative Assembly on 4[th] February, 1937, and by the Council ofState on 6[th] April 1937, and which received the Governor-General’sEassent on 14[th] April 1937, or the Hindu Women’s Rights to Property(Amendment) Act, 1938 (Central Act, 11 of 1938), which waspassed in all its stages after 1[st] April 1937, operate to regulate (a)succession to agricultural land? (b) devolution by survivorship ofproperty other than agricultural land?

F

(2) Is the subject of devolution by survivorship of property otherthan agricultural land included in any of the entries in the threeLegislative Lists in Sch. 7, Government of India Act, 1935?”

The observations of the Federal Court relevant for the presentGpurposes were:- “……….After 1[st] April 1937, the Central Legislature wasprecluded from dealing with the subjects enumerated in List II ofSch. 7, Constitution Act, so far as the Governors’ Provinces were 5R.S.A. No. 258 of 2012 decided on 1.3.2018

H6(1941) 3 FCR 12 = AIR 1941 FC 72

concerned. Laws with respect to the “devolution of agriculturalland” could be enacted only by the Provincial Legislatures (entryNo.21 of List II), and “wills, intestacy and succession, save asregards agricultural land” appeared as entry No.7 of List III, theConcurrent List. Act 18, read with the amending Act of 1938,endeavored to improve the position of Hindu widows in two classesof cases (a) where by the operation of the principle of survivorshipthe widow is excluded from enjoyment of the share of her husbandin property which he held jointly with other coparceners; and (b)where, even apart from the rule of survivorship, the widow isexcluded from claiming any share in her husband’s estate by reasonof the existence of sons, grandsons or great-grandsons of thedeceased who under the law take in preference to the widow.Provision is also made for securing a share to a widow even incases where her husband had pre-deceased the last male owner(S.3 (1), first proviso). The Act purports to deal in quite generalterms with the “property” or “separate property” of a Hindu dyingintestate, or his “interest in joint family property”; it does notdistinguish between agricultural land and other property and istherefore not limited in terms to the latter.”

… … … … … … … … …

The questions were answered by the Federal Court as under:- “..….(1) The Hindu Women’s Rights to Property Act, 1937,and the Hindu Women’s Rights to Property (Amendment) Act,1938, (a) do not operate to regulate succession to agriculturalland in the Governors’ Provinces; and (b) do operate to regulatedevolution by survivorship of property other than agricultural land.

(2) The subject of devolution by survivorship of property otherthan agricultural land is included in entry No.7 of List 3, theConcurrent List.”

6. The relevant entries in 1935 Act which were considered by theFederal Court underwent significant changes when the Constitution ofIndia was adopted. The following Tabular Chart would show thedistinction between the concerned entries:- AB

C

D

E

F

G

H

ASeventh Government of India Act 1935Constitution of IndiaSchedule LIST I54. Taxes on income other than agricultural 82. Taxes on income other than agricultural income. income. 55. Taxes on the capital value of the assets, 86. Taxes on the capital value of the assets, exclusive of agricultural land, of individuals exclusive of agricultural land, of individuals and companies; and companies; taxes on the capital of Bcompanies. 56­A. Estate duty in respect of property other 87. Estate duty in respect of property other than agricultural land. than agricultural land. 56. Duties in respect of succession to 88. Duties in respect of succession to property other than agricultural land. property other than agricultural land. LIST II 20. Agriculture, including agricultural 14. Agriculture, including agricultural education and research, protection against education and research, protection against Cpests and prevention of plant diseases; pests and prevention of plant diseases. improvement of stock and prevention of animal diseases; veterinary training and practice; pounds and the prevention of cattle­trespass. 21. Land, that is to say, rights in or over land, 18. Land, that is to say, right in or over land, land tenures, including the relation of land tenures including the relation of landlord and tenant and the collection of landlord and tenant, and the collection of Drents; transfer, alienation and devolution of rents; transfer and alienation of agricultural agricultural land; land improvement and land; land improvement and agricultural agricultural loans; colonization; Courts of loans; colonization. Wards; encumbered and attached estates; treasure trove. 27. Trade and commerce within the Province; 30. Money­lending and money­lenders; relief markets and fairs; money lending and money of agricultural indebtedness. Elenders. 41. Taxes on agricultural income. 46. Taxes on agricultural income. 43. Duties in respect of succession to 47. Duties in respect of succession to agricultural land. agricultural land. 43­A. Estate duty in respect of agricultural 48. Estate duty in respect of agricultural land.land. FLIST III6. Marriage and divorce; infants and minors; 5. Marriage and divorce; infants and minors; adoption. adoption; wills, intestacy and succession; joint family and partition; all matters in 7. Wills, intestacy, and succession, save as respect of which parties in judicial regards agricultural land. proceedings were immediately before the commencement of this Constitution subject to their personal law. G8. Transfer of property other than agriculture 6. Transfer of property other than land; registration of deeds and documents. agricultural land; registration of deeds and documents. 7. Contracts including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land. H

7. The Act came into force on 17[th] June, 1956. Section 22 hasremained unchanged since the enactment. While considering the effectof Section 22, Section 4(2) may also be required to be looked into.However, Section 4(2), as originally enacted has since then been omittedby the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005).Before such omission, Section 4 as originally enacted was as under:- “4. Over-riding effect of Act. – (1) Save as otherwise expresslyprovided in this Act, -

(a) Any text, rule or interpretation of Hindu law or any customor usage as part of that law in force immediately beforethe commencement of this Act shall cease to have effectwith respect to any matter for which provision is made inthis Act; (b)Any other law in force immediately before thecommencement of this Act shall cease to apply to Hindusinsofar as it is inconsistent with any of the provisionscontained in this Act.

(2) For the removal of doubts it is hereby declared that nothingcontained in this Act shall be deemed to affect the provision ofany law for the time being in force providing for the prevention offragmentation of agricultural holdings or for the fixation of ceilingsor 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 inany immovable property of an intestate, or in any business carriedon by him or her, whether solely or in conjunction with others,devolves upon two or more heirs specified in class I of theSchedule, and any one of such heirs proposes to transfer his orher interest in the property or business, the other heirs shall havea preferential right to acquire the interest proposed to betransferred.

(2) The consideration for which any interest in the property ofthe deceased may be transferred under this section shall, in theabsence of any agreement between the parties, be determined bythe court on application being made to it in this behalf, and if anyperson proposing to acquire the interest is not willing to acquire itfor the consideration so determined, such person shall be liable topay all costs of or incident to the application.

A

B

C

D

E

F

G

H

A(3) If there are two or more heirs specified in class I of theSchedule proposing to acquire any interest under this section, thatheir who offers the highest consideration for the transfer shall bepreferred.

Explanation.- In this section, “court” means the court withinBthe limits of whose jurisdiction the immovable property is situateor the business is carried on, and includes any other court whichthe State Government may, by notification in the Official Gazette,specify in this behalf.”

8. The first case wherein scope of Section 22 was considered,Cwas Sm. Laxmi Debi v. Surendra Kumar Panda and Others[7]by theHigh Court of Orissa. The submission that Section 22 of the Act wouldnot cover succession in respect of agricultural lands was rejected. Thecontention on the strength of judgment of the Federal Court[6] was alsonegated as under:- D“14. Mr. Jena further contended that the Act, even if appliesretrospectively, will not apply to agricultural lands, and for this herelies upon the Federal Court decision reported in Hindu Women’sRights to Property Act, 1937, In the matter of AIR 1941 PC 72(K). That was a case which came up for decision by the FederalCourt on a reference made by His Excellency the Governor-EGeneral of India.

Gwyer C. J., who delivered the judgment of the Court held thatthe Hindu Women’s Rights to Property Act of 1937, and the HinduWomen’s Rights to Property (Amendment) Act of 1938, do notoperate to regulate succession to agricultural land in the Governors’FProvinces; and do operate to regulate devolution by survivorshipof property to other than agricultural lands.

This decision, in view of the changed position in law, no longerholds good. The Federal Court decision was based upon the lawof legislative competency as it then stood, by the Government ofGIndia Act, 1935. In Schedule 7, Government of India Act, 1935,this subject appears in the Concurrent Legislative List (List 3) asitem No. 7. Item 7 was in the following terms:

“Wills, Intestacy and Succession, save as regards agriculturallands.”

H7AIR 1957 Orissa 1 = 22 (1956) CLT 466

Now under the present Constitution of India the same subject hasbeen dealt with in the Concurrent List (List 3) in Schedule 7 asitem No. 5. Item No. 5 runs as follows:

“Marriage and divorce, infants and minors, Adoption, Wills,Intestacy and Succession, Joint Family and Partition, all mattersin 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 asregards agricultural land” from item No. 5 of the Concurrent Listin order to have a uniform personal law for Hindus throughoutIndia, and accordingly, it necessitated the enlargement of EntryNo. 5. We have no doubt, therefore, that in view of the change inlaw, the Act will apply to agricultural lands also, and the decisionin AIR 1941 FC 72 (K) would no longer hold good.”

9. Before Full Bench of Punjab High Court in Amar Singh andOrs. vs. Baldev Singh and Ors.[8] challenge was raised in the contextof rights of a Hindu female under Section 14 of the Act. It was heldinter alia that Section 14 of the Act was “within the legislative fieldspanned in Entry 5 of List III, the concurrent List”. However, a DivisionBench of the same High Court in Jaswant and ors. vs. Smt. BasantiDevi[9] took a different view while considering effect of Section 22 asregards agricultural lands. The discussion in that behalf was as under:- “8. Mr. Roop Chand, the Learned Counsel for the Respondent,stressed that the words ‘immovable property’ used in Section 22will include agricultural lands. Undoubtedly, they do. But onecannot lose sight of the fact that when the Central Legislatureused these words it did so knowing fully well that it had no powerto legislate regarding agricultural lands excepting for the purposesof devolution. Section 22 does not provide for devolution ofagricultural lands. It merely gives a sort of right of pre-emption.In fact, as already pointed out, entry No. 6 in List III, clearlytakes out agricultural lands from the ambit of the concurrent list.Agricultural land is specifically dealt with in entry No. 18 of ListII. The only exception being in the case of devolution. Therefore,it must be held that Section 22 does not embrace agricultural lands.

8AIR 1960 Punjab 666

91970 PLI 587 = 1970 Punjab Law Reporter Vol. 72 page no. 958

A

B

C

D

E

F

G

H

A9. The last argument of Mr. Roop Chand, the Learned Counselfor the Respondent, was that Section 22 is ultra vires theConstitution as the Central Legislature had no right to pass such alaw regarding agricultural lands. This argument cannot be acceptedbecause it cannot be presumed that the Legislature was passinglaw regarding matters which it had no power to pass particularlyBwhen with regard to immovable property other than agriculturalland, it has the power to enact such a law. This view finds supportfrom the decision of the Federal Court in re Hindu Women’s Rightsto Property Act AIR 1941 FC 72, wherein in a similar situationtheir Lordships of the Federal Court refused to strike down theCprovisions of the Hindu Women’s Rights to Property Act, 1937,on the precise arguments.”

10. The High Court of Judicature at Allahabad, in Smt. PremaDevi vs. Joint Director of Consolidation (Head quarter) at GorakhpurCamp and Ors.[10]held:-D

“5… …we are of the opinion that the Hindu Succession Act,1956, cannot be made applicable to agricultural plots. This Actwas passed by the Central Legislature in 1956 and the only entryunder which the Central Legislature had the jurisdiction to passthe Act, was entry No. 5 in the third list of the Seventh ScheduleEof the Constitution. This entry is as follows:— “5-Marriage anddivorce; infants and minors; adoption; wills, intestacy andsuccession; joint family and partition; all matters in respect ofwhich parties in judicial proceedings were immediately before thecommencement of this Constitution subject to their personal law.”This entry obviously relates only to personal law and laws passedFunder this entry do not apply to any particular property. Theymerely determine the personal law. In List 2, Entry No. 18 is asfollows:— “Land, that is to say, right in or over land, land tenuresincluding the relation of landlord and tenant, and the collection ofrents; transfer and alienation of agricultural land; land improvementGand agricultural loans; colonization.” This entry which is in theexclusive jurisdiction of the State Legislature is in the widest term.All laws relating to land and land tenures are therefore, within theexclusive jurisdiction of the State Legislature. Even personal lawcan become applicable to land tenures if so provided in the StateLaw, but it cannot override State legislation”.H10AIR 1970 Allahabad 238

11. The decisions rendered by various High Courts show thedivergent views in the matter. Some High Courts have held that theprovisions of Section 22 of the Act would apply to agricultural lands andin the process have followed the reasoning that weighed with the OrissaHigh Court in Laxmi Debi[7]. On the other hand, some High Courts haveheld to the contrary and have followed the decisions of the Punjab HighCourt in Jaswant[9 ]and of the Allahabad High Court in Prema Devi[10]. Itis the latter line of cases which is relied upon by the learned counsel forthe appellant in support of his submissions. It must also be stated thatwherever there was question of succession to tenancy rights in respectof agricultural holdings, reference was made by some of the High Courtsviz. the High Court of Bombay in Tukaram Genba Jadhav and Ors.vs. Laxman Genba Jadhav and Anr.[11]to the effect of the then existingprovision under Section 4(2) of the Act. We are not going into thereasoning that weighed with various High Courts in every case, butsuffice it to say that the following chart may indicate how the questionwas answered by some of the High Courts.

A

B

C

D

A

B

C

D

S.No.The provisions of the Act and The Act was held to be inapplicable to Section 22 thereof applied to agricultural lands. agricultural lands 1. Sm. Laxmi Debi vs. Surendra Jaswant and ors. vs. Smt. Basanti Devi Kumar Panda and Ors. (1970 Punjab Law Reporter Vol. 72 (AIR 1957 Orissa 1) page No. 958) E2. Amar Singh and Ors. vs. Baldev Prema Devi vs. Joint Director of Singh and Ors. Consolidation (Head quarter) at (AIR 1960 Punj 666 (FB) ) Gorakhpur Camp and Ors. (AIR 1970 Allahabad 238) 3. Basavant Gouda vs. Nahar Hirasingh and Ors. vs. Dukalhin Channabasawwa and Anr. and ors. (AIR 1971 Mysore 151) (AIR 1974 MP 141) F4. Nidhi Swain and Ors. vs. Khati Jeewanram vs. Lichmadevi and Anr Dibya and Ors. (AIR 1981 Rajasthan 16) (AIR 1974 Orissa 70) 5. Venkatalakshmamma & Ors. Vs. Balkaur Singh vs. Gurmail Singh Lingamma & Anr. (2007 SCC OnLine P&H 1257) (1984 SCC OnLine Kar 141)G6. Tukaram Genba Jadhav and Ors. Subramaniya Gounder & Ors. vs. vs. Laxman Genba Jadhav and Easwara Gounder Anr. (2010-5-L.W. 941) (AIR 1994 Bombay 247)7.Bharat vs. Anjanabai(2007 (6) Mh.LJ 706)

G

H

11AIR 1994 Bombay 247 = (1994) 96 Bombay Law Reporter 227

A12. As regards the High Court of Himachal Pradesh, from whichthe present matter arises, the Division Bench of the High Court in RoshanLal (deceased) through his LRs. vs. Pritam Singh and ors.[5] hadconsidered all relevant decisions on the point and concluded that theprovisions of Section 22 of the Act would apply in relation to successionto agricultural lands. The conclusion arrived at in the leading judgmentBwith which the other learned Judge concurred, was:- “56. Thus, “succession” falls within the scope of entry No. 5 ofList-III and in case a narrow and pedantic or myopic view ofinterpretation is adopted by accepting succession to an agriculturalland, bringing it within the scope of “rights in and over land”,Cimpliedly no meaning would be attached to entry No.5 as eachand every word of the list must be given effect to. If there is nolocal law on the subject, then the special law will prevail which inthe instant case is the Succession Act. The scope, object andpurpose of codifying Hindu Law is different. It is to achieve theDConstitutional mandate. There is no provincial law dealing withthe subject. As such, the Central Act must prevail.”The view taken by the Division Bench was followed by the HighCourt in the present matter.

13. In the aforesaid background, we are called upon to decide theEapplicability of Section 22 of the Act in respect of agricultural lands.Before we consider the issues in question, we must refer to the decisionof this Court in Vaijanath and ors. vs. Guramma and anr.[12]. In thatcase matters pertaining to intestacy and succession relating to joint familyproperty including agricultural land, were dealt with by a State law whichhad received the assent of the President. Following observations of thisFCourt, are relevant for the present purposes:- “8. There is no exclusion of agricultural lands from Entry 5 whichcovers Wills, intestacy and succession as also joint family andpartition. Although Entry 6 of the Concurrent List refers to transferof property other than agricultural land, agriculture as well as landGincluding transfer and alienation of agricultural land are placedunder Entries 14 and 18 of the State List. Therefore, it is quiteapparent that the Legislature of the State of Hyderabad wascompetent to enact a Legislation which dealt with intestacy andsuccession relating to Joint Family Property including agriculturalHland. The language of the Hindu Women’s Rights to Property12(1999) 1 SCC 292

Act, 1937 as enacted in the State of Hyderabad is as general asthe Original Act. The words ‘property’ as well as ‘interest in JointFamily Property’ are wide enough to cover agricultural lands also.Therefore, on an interpretation of the Hindu Women’s Right toProperty Act, 1937 as enacted by the State of Hyderabad, theAct covers agricultural lands. As the Federal Court has noted inthe above judgment, the Hindu Women’s Right to Property Act isa remedial Act seeking to mitigate hardships of a widow regardinginheritance under the Hindu Law prior to the enactment of the1937 Act; and it ought to receive a beneficial interpretation. Thebeneficial interpretation in the present context would clearly coveragricultural lands under the word ‘property’. This Act also receivedthe assent of the President under Article 254(2) and, therefore, itwill prevail.”

14. When the Federal Court was called upon to consider the matter,Entry 21 of List II of 1935 Act had inter alia dealt with “transfer,alienation and devolution of agricultural land”. It was in the exclusivedomain of the provincial legislatures. The idea that the provinciallegislatures were alone entitled to deal with matters relating to “transfer,alienation and devolution of agricultural land” was again made clear inEntry 7 of List III by expression “…succession, save as regardsagricultural land” which dealt with concurrent powers. The provinciallegislature had thus exclusive competence with regard to transfer,alienation and devolution of agricultural land. In the circumstances, theFederal Court had answered the first question that the provisions ofHindu Women’s Rights to Property Act, 1937 and Hindu Women’sProperty (Amendment) Act, 1938 would not regulate succession toagricultural lands in the provinces.

15. But the situation underwent considerable change after theConstitution of India was adopted.

(i) The subjects “Transfer, alienation of agricultural land” areretained 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 regardsagricultural land”, that qualification is now conspicuously absentin comparable Entry 5 in the present List III. The expression inEntry 5 today is “…intestacy and succession”.

AB

C

D

E

F

G

H

A

AThe changes indicated above as against what was earlier availablein Entry 21 of List II and Entry 7 of List III make the position veryclear. The present Entry 5 of List III shows “succession” in itsfullest sense to be a topic in the Concurrent List. The concept ofsuccession will take within its fold testamentary as well as intestatesuccession. The idea is, therefore, clear that when it comes toB“transfer, alienation of agricultural land” which are transfers intervivos, the competence under Entry 18 of List II is with the Statelegislatures but when it comes to “intestacy and succession” whichare essentially transfers by operation of law as per law applicableto the person upon whose death the succession is to open, bothCthe Union as well as State legislatures are competent to deal withthe topic. Consequently, going by the principles of Article 254 ofthe Constitution of India the matter will have to be dealt with.

16. In the present case it is nobody’s case that the matter relatingto succession to an interest in agricultural lands is in any way dealt withDby any State legislation operating in the State of Himachal Pradesh orthat such legislation must prevail in accordance with the principles underArticle 254 of the Constitution of India. The field is occupied only bySection 22 of the Act insofar as State of Himachal Pradesh is concerned.The High Court was, therefore, absolutely right in holding that Section22 of the Act would operate in respect of succession to agriculturalElands in the State.

17. Though, succession to an agricultural land is otherwise dealtwith under Section 22 of the Act, the provisions of Section 4(2) of theAct, before its omission, had made it clear that the provisions of the Actwould not apply in cases inter alia of devolution of tenancy rights inFrespect of agricultural holdings. Thus, the effect of Section 4(2) of theAct before its deletion was quite clear that, though the general field ofsuccession including in respect of agricultural lands was dealt with underSection 22 of the Act, insofar as devolution of tenancy rights with respectto agricultural holdings were concerned, the provisions of Section 22Gwould be inapplicable. The High Court of Bombay was, therefore,absolutely right in its conclusion. However, with the deletion of Section4(2) of the Act, now there is no exception to the applicability of Section22 of the Act. But we are not called upon to consider that facet of thematter.

H

18. We now turn to the next stage of discussion. Even if it beaccepted that the provisions of Section 22 would apply in respect ofsuccession to agricultural lands, the question still remains whether thepreferential right could be enjoyed by one or more of the heirs. Wouldthat part also be within the competence of the Parliament ? The “right inor over land, land tenures …..” are within the exclusive competence ofthe State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples wherepreferential rights have been conferred upon certain categories andclasses of holders in cases of certain transfers of agricultural lands.Whether conferring a preferential right by Section 22 would be consistentwith 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 purchasedan agricultural holding, whereafter one of them wished to disposeof his interest. The normal principle of pre-emption may apply inthe matter and any of the other joint holders could pre-empt thesale in accordance with rights conferred in that behalf byappropriate State legislation.

b) If those three persons were real brothers or sisters and hadjointly purchased an agricultural holding, investing their own funds,again like the above scenario, the right of pre-emption will have tobe purely in accordance with the relevant provisions of the Statelegislation.

c) But, if, the very same three persons in illustration (b) hadinherited an agricultural holding and one of them was desirous ofdisposing of his or her interest in the holding, the principles ofSection 22 of the Act would step in.

The reason is clear. The source of title or interest of any of theheirs in the third illustration, is purely through the succession which isrecognized in terms of the provisions of the Act. Since the right orinterest itself is conferred by the provisions of the Act, the manner inwhich said right can be exercised has also been specified in the verysame legislation.

Therefore, the content of preferential right cannot be disassociatedin the present case from the principles of succession. They are both partof the same concept.

AB

C

D

E

F

G

H

A20. When the Parliament thought of conferring the rights ofsuccession in respect of various properties including agricultural holdings,it put a qualification on the right to transfer to an outsider and gavepreferential rights to the other heirs with a designed object. Under theShastrik Law, the interest of a coparcener would devolve by principlesof survivorship to which an exception was made by virtue of Section 6Bof the Act. If the conditions stipulated in Section 6 were satisfied, thedevolution of such interest of the deceased would not go by survivorshipbut in accordance with the provisions of the Act. Since the right itself incertain cases was created for the first time by the provisions of the Act,it was thought fit to put a qualification so that the properties belonging toCthe family would be held within the family, to the extent possible and nooutsider would easily be planted in the family properties. In our view, itis with this objective that a preferential right was conferred upon theremaining heirs, in case any of the heirs was desirous of transferring hisinterest in the property that he received by way of succession under theAct.D

21. We, therefore, conclude that the preferential right given to anheir of a Hindu under Section 22 of the Act is applicable even if theproperty in question is an agricultural land. The High Court was right inaffirming the judgment and decree passed by the Court of District Judge,Hamirpur in Civil Appeal No.86 of 1994. In the end, we must also declareEthat various decisions of the High Courts, some of which are referred toabove, which have held contrary to what we have concluded, standoverruled.

22. The appeal is dismissed without any order as to costs.

FNidhi Jain

Appeal dismissed.

G

H