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TMI Blog1962 (8) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... efly as follows The 5th and 6th respondents before us owned certain agricultural land in village Dugri which they sold to the appellants by a deed dated April 25, 1957. Res- pondents 1 to 4 instituted a suit against the appellants to which the vendors-respondents 5 & 6 were also impleaded as co-defendants. The right of preemption was based on the plaintiffs being the nearest collaterals of the vendors and heirs according to the rule of succession. There were certain points of dispute on the facts but these are not now material and it is sufficient to state that the suit was decreed by the Subordinate Judge on December 10, 1958. This judgment in favour of respondents 1 to 4 was affirmed by the District Judge on appeal and on further appeal, by the High Court. It is from this judgment and decree of the High Court that the vendees who are the appellants before us have brought the matter to this Court. The appellants were five in number. They fell into two groups constituted respectively by the 1st and 2nd appellants who are brothers and by appellants 3, 4 and 5. While the appeal was pending in this Court the 1 at appellant Mehar Singh died on May 18, 1960, leaving a widow and five ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 5 are concerned is interfered with. Where a decree is a joint one and a part of the decree has become final by reason of abatement, the entire appeal must be held to be abated. It is not necessary to cite authority for so obvious a position but we might refer to the decision of this court in Jhanda Singh v. Gurmukh Singh (deceased) (1). The result is that the appeal fails as having abated and is dismissed with costs. Civil appeal No. 139 of 1961 The material provision of s. 15 of the Act relevant for the consideration of the constitutional point raised in this appeal is s. 15(a), but as the validity of other clauses of the same section are challenged in the other appeals, we consider it convenient to set out the other relevant ones also: "15. Subject to the provisions of section 14 the right of preemption in respect of agricultural land and village immoveable property shall vest- (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional validity of s. 15 it is necessary to notice an argument urged on behalf of the appellant for sustaining a contention that even apart from the unconstitutionality of the provision the right of pre- emption conferred by s. 15(a) has ceased to be enforceable. The argument under this head was rested on the opening words of s. 15 and certain other provisions to which we shall immediately advert. It would be noticed that a. 15 opens with the words "Subject to the provisions of section 14 the right of preemption in respect of agricultural land......... shall vest". Section 14 runs in these terms: "14. No person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of pre- emption in respect of agricultural land sold by a member of an agricultural tribe." The expression "agricultural tribe" referred to in s. 14- is defined in s. 3(4) of the Act thus: "member of an agricultural tribe and group of agricultural tribes shall have the meanings assigned to them respectively under the Punjab Alienation of Land Act, 1900. " Next it would be seen that a. 15 employs the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibe' and this read in conjunction with the positive provision in s.23 has become wholly inapplicable and unworkable after the repeal of the Punjab Alienation of Land Act of 1900. The problem here raised is dependent upon the construction which the several provisions which we have set out earlier would bear after the repeal of the Punjab Alienation of Land Act, 1900. One thing is clear and that is that the authority which effected the repeal of the Punjab Alienation of Land Act did not consider that Punjab Act 1 of 1913 had itself to be repealed. We shall now consider the effect of the repeal of the Punjab Alienation of Land Act with reference to each of the provisions:- Definition of "agricultural land' under 8.3(1): Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. The effect of incorporation is stated by Brett, L. J., in Clarke v. Bradlaugh: ((1881) 8 Q.B. D, 63.) "Where a statute is incorporated, by reference, into a second statute the repeal of the first statute by a third does not affect the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions imposed by a. 23. We are therefore clearly of the opinion that neither the repeal of the Punjab Alienation of Land Act, 1900, nor the consequential removal of the fetters imposed by ss. 14 and 23 have the effect of rendering the substantive provision contained in s. 15 not available to those who satisfy its terms. In these circumstances we have necessarily to consider the main question raised by learned Counsel for the appellant, viz., that the rights conferred upon the pre- emptor is an unreasonable restriction on the right of vendors "to hold and dispose of property)" and of prospective vendees to acquire property" guaranteed to citizens of India by Art. 19(1) (f) of the Constitution. Before proceeding to consider the question about the constitutional validity of a. 15(a) of the Act, it is necessary to mention that s. 15 of the Act has been the subject of very substantial amendments effected by the Punjab Preemption (Amendment) Act of 1960 (Act 10 of 1960). This however makes no difference to the present appeal since the relevant portion of s. 15 as amended reads : "15. (1) The right of preemption in respect of agricultural land and village immoveable property shall vest- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onableness of the right of pre- emption granted by law in regard to agricultural property dealt with in s. 15 would therefore appear to be the first four of the above. Among them much stress could not be laid on the avoidance of chances of litigation and friction because the existence of the right of preemption could also give rise to litigation which otherwise might not exist. Nor can the ground of avoidance of fragmentation of holdings afford assistance to sustain the claim of a son to preempt in the event of a sale by a sole owner-father, for that criterion has primary relevance to the right of preemption enjoyed by co-sharers and the like. The grounds for upholding s. 15(a) as reasonable and in the interest of the general public therefore finally resolve themselves into two: (1) to preserve the integrity of the village and the village community; and (2) to implement the agnatic rule of succession. The objective underlying the first ground is prima facie reasonable and calculated to further the interest of the general public. It was however pointed out by learned Counsel for the appellant that with the large scale migration of population into Punjab consequent on the problems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e succeeded to the property in the absence of any alienation. The relevant portion of s. 15 (1) after amendment reads: "15. (1) The right of preemption in respect of agricultural land and village immoveable property shall vest- (a) where the sale is by a sole owner, FIRST, in the son or daughter or son's son or daughter's son of the vendor; SECONDLY, in the brother or brother's son of the vendor; THIRDLY, in the father's brother or father's brother's son of the vendor; FOURTHLY,.................. " No doubt, the son and the other members of the family would not have been entitled to a present interest in the property alienated and consequently would not have a right to prevent the alienation (in which event, however, it is needless to add that a right to preempt wan wholly unnecessary as a means of preserving the property), but they would have a legitimate expectation of succeeding to the property-an expectation founded on and promoted by the consciousness of the community. If the social consciousness did engender such feelings, and taking into account the very strong sentimental value that is attached to the continued possession of family property in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not defined by the Act but by reason of its s. 3 (6) the definition in s. 3 of the Punjab Land Revenue Act, 1887, is attracted to it. Turning now to s. 3 of the Punjab Land Revenue Act (Act XVII of 1887), it defines an 'estate' as meaning, inter alia, "any area for which a separate record-of-rights has been made." It was the case of the plaintiff-first respondent before us that he owned land in the "estate" whereas the under--the appellant before us did not own any land there. The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an "estate", sought to prove that he too owned land in the same village and "estate" but in this he failed. As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial Court on November 8, 1951, and an appeal and second appeal there- from were also dismissed. It was from this judgment of the High Court that this appeal has been brought and the principal point on which leave was granted related to the constitutionality of the provision in s. 15 of the Pre- emption Act upon which the respondent based his claim to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Governor on February 2, 1960, and was published in the Punjab Government Gazette two days later. By s. 4 of the Amending Act s. 15 of the parent Act was repealed and in its place was substituted a new provision which omitted to confer a right of Preemption in the case of persons "owning land in the estate )I as the original section 15 (c) "thirdly" had done. Retrospective effect was giving to the provisions contained in the Amending Act by the insertion of a new s. 31 in the parent Act Which read: "31. No court shall pass a decree in a suit for preemption whether instituted before or after the commencement of the Punjab Pre- emption (Amendment) Act, 1959, which is inconsistent with the provisions of the said Act". It may be mentioned that the figure 1959 in s. 31 is an obvious mistake for 1960 which is the correct year of the Amending Act. The question now for consideration is whether by reason of this amendment in the law, the respondent is entitled to the benefit of the decree which he obtained under the previously existing enactment. That s. 31 is plainly retrospective and that it affects rights to preemption which had accrued before the coming into force of the Amendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n he placed considerable reliance on the employment of the words "no decree shall be passed" in the opening words of s. 31 as indicative of a ban only on the passing of a decree-an event which be contended would occur, firstly when a trial Court passed a decree and secondly when the trial Court having refused a decree, the appellate Court is called upon to pass a decree which the trial Court should properly have done and in no other Contingency. On this reasoning the contention was urged that where a trial Court had passed a decree and that decree gave effect to the law as it stood up to the date of that decree, the words of s. 31 did not enable an appellate Court to set aside that decree on the ground of a change in the substantive law effected by the Amending Act. Through we agree that there is a presumption against the retrospective operation of a statute and also the related principle that a statute will not be construed to have a greater retrospective operation than its language renders necessary, we consider that in the present case the language used in s. 31 is plain and comprehensive so as to require an appellate court to give effect, to the substantive provisions of the Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ",appeals" and "revisions" seeing that the relevant operative words in s. 7 of the Bihar Act were "no Court shall pass a decree"- words which occur in s. 31 of the Act as well. On the other hand the reasoning of the learned Judges of the Court which was based on the nature of an appeal under the Indian procedural law as a rehearing and a court of appeal being not a court of error merely, and the view expressed that when an appeal was filed the finality which attached to the decree of the trial court disappeared, all these lines of reasoning point to the fact that even when an appellate court dismisses an appeal it also is passing a decree. In this connection we consider that the reasoning and the conclusion of the Division Bench of the Punjab High Court in Ram Lal v. Raja Ram ((1960) 62 P.L.R. 291) correctly sets out the principles underlying the scope of an appeal as well as the proper construction of s. 31 of the Amending Act. It was not suggested that if the provisions of s. 15 as amended by Punjab Act 10 of '1960 had to be applied the decree in favour of the respondent could be sustained. The result therefore is that the appeal has to be allowed, the decree in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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