TMI Blog1962 (8) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 30-8-1962 - P.B. GAJENDRAGADKAR, A.K. SARKAR, K.C. DAS GUPTA, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR, JJ. JUDGMENT These four appeals which have been filed pursuant to special leave granted by this Court principally raise for consideration the constitutional validity of s. 15 of the Punjab Preemption Act (Act 1 of 1913), hereinafter referred to as the Act. The property involved in these appeals are agricultural lands and in each one of them decrees have been passed in favour of the preemptors whose claim to preempt was based on different sub-clauses of s. 15, and the vendees who are the appellants in the several appeals challenge the constitutional validity of the law under which the suits have been decreed. One of the appeals-Civil Appeal No. 214 of 1961 however could be decided without considering the constitutional point regarding the validity of s. 15 of the Act and it would therefore be convenient to dispose it of first. The facts giving rise to the appeal are briefly 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inct and separate. An English translation of the deed of sale has now been produced before us and a perusal of it indicates that the submission made on behalf of the appellants is not sustainable. The consideration for the sale is a sum of Rs.22,750/and the conveyance recites that Mehar Singh and the second appellant bad paid one half amounting to Rs. 11,375/- while the other three appellants had paid the other half It is therefore not a case of a sale of any separated item of property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. It is clear law that there can be no partial pre- emption because preemption is the substitution of the pre- emptor in place of the vender and if the decree in favour of the preemptors in respect of the share of the deceased Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for preemption insofar as appellants 2 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by Munshi was based upon a denial of the fact that be was the son of Ram Nath. This issue was found in favour of the respondent by the Subordinate Judge who decreed the suit, which judgment was confirmed successively by the District Judge on appeal and thereafter by the High Court on second appeal. It was therefore common ground that if s. 15(a) was constitutionally valid, the sale by Ram Nath was subject to the right of Munshi, to preempt and that consequently his suit was properly decreed. The constitutional validity of s. 15 was not contested before the High Court because of the decision of a Full Bench of that Court which had upheld its validity. It was only at the stage of an application for a review of the Judgment of the High Court that this point was raised but the learned Judges rejected it and it was on the ground of this constitutional point that special leave was granted and that is the only point for consideration in this appeal. Before adverting to the points urged by learned Counsel as regards the 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 unconst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption is recognised and granted, though s. 15 sets out the circumstances in which it arises. Under s. 6 the right is (a) in respect of agricultural land , and (b) the right conferred by the Act is subject to every provision and limitation contained in it. In the Act, as originally framed before the amendment effected by the Adaptation of Laws (Third Amendment) Order, 1951 i. e., before the repeal of the Punjab Alienation of Land Act, 1900, there were two principal limitations on the right of preemption in respect of agricultural land: (1) it applied only to such land as was defined in the Punjab Alienation of Land Act, and (2) by virtue of s. 14 there was a limitation of the group of persons who might claim the right of preemption if a sale took place by a member of an agricultural tribe , and the expression member of an agricultural tribe was as defined by the Punjab Alienation of Land Act. Section 15 therefore was subject to the limitations of s. 14 and to the definition of 'agricultural land' and 'agricultural tribe' and this read in conjunction with the positive provision in s.23 has become wholly inapplicable and unworkable after the repeal of the Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that s. 14 is restrictive, in that in the case of the alienations by persons referred to in that section the right of preemption is conferred upon a limited group. With the repeal of the Punjab Alienation of Land Act, 1900, the restriction imposed by s. 14 as regards the availability of the right of preemption to particular agricultural tribes would disappear. In other words, the effect of the removal of the limitation of s. 14 would only be that the opening words of s. 15 cease to operate. In such circumstances s. 14 would lose all significance because the post-Constitution law does not recognise membership of tribes as conferring any special rights and consequently the elimination of s. 14 would leave a. 15 without the limitation originally imposed upon it. In the same manner the restriction imposed upon the passing of decrees by s. 23 could also not operate after the repeal of the Punjab Alienation of Land Act but that would leave the Court with an unfettered power to grant decrees under the provisions of the Act, i. e., without the limitations imposed by a. 23. We are therefore clearly of the opinion that neither the repeal of the Punjab Alienation of Land Act, 1900, nor t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was considered by a Full Bench of the High Court of Punjab in Uttam Singh v. Kartar Singh (1) and as the grounds stated there have been referred to with approval in subsequent decisions of the Punjab High Court and were relied on before us by learned Counsel for the respondent we might as well extract the passage in full : It is plain that the objects underlying as. 15 and 16 of the Act may be briefly enumerated as follows : (1) to preserve the integrity of the village and the village community; (2) to avoid fragmentation of holdings; (3) to implement the agnatic theory of the law of succession; (4) to reduce the chances of litigation and friction and to promote public order and domestic_comfort; and (5) to promote private and public decency and convenience. The reference here in the above passage to the promotion of public order and domestic comfort and to Private and public decency and convenience obviously have relevance to urban immoveable property dealt with in s. 16. The (1) A. 1. R. 1954 Punjab 55. grounds on which the reasonableness of the right of pre- emption granted by law in regard to agricultural property dealt with in s. 15 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have the chance of retaining the property in the family, would suffice to render the restriction reasonable and in the interest of the general public within Art. 19(5). In this connection we might refer to the reasoning in the decision of the Rajasthan High Court in Siremal v. Kantilal(A.I.R. 1954 Rajastban 195) where the learned Judges struck down as unconstitutional a provision in a. 3 of the Marwar Preemption Act which granted a right of preemption to persons related within three degrees to the vendor of the house or building-plot provided that the nearer in degree shall have priority over one more remote as an unreasonable restriction on the right conferred by Art. 19(1)(f) of the Constitution. The basis of this ruling was that the impugned enactment conferred the right of preemption on all relations within three degrees and did not restrict it to the members of the family. Under s.15 of the Act, particularly after the amendment effected by Act 10 of 1960, the right of preemption is confined to the members of the family of the vendor, i. e., those who would have succeeded to the property in the absence of any alienation. The relevant portion of s. 15 (1) after amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family. As we have already pointed out in dealing with the claim by a vendor's son in Appeal 139 of 1961, we consider that the provisions contained in s. 15(a), as it originally stood, as well as in the modified form in which it has been reenacted do not transgress the limits of reasonableness required by Art.19(5) of the Constitution. As the constitutionality of s.15(a) was the only ground which was or could be canvassed before us in this appeal and as we are rejecting it follows that the appeal fails. It is accordingly dismissed with costs. Civil Appeal No. 510 of 1961 What now remains to be dealt with is Civil Appeal 510 of 1961. This appeal arises out of a suit filed by the first respondent as plaintiff for preemption of certain agricultural land in village Fatehabad in Amritsar district. The sale which gave rise to the suit was under a deed dated December 29, 1949, in favour of the appellate Singh. The claim to preempt was based on s. 15 (c) thirdly of the Punjab Preemption Act, 1913, which has already been set out. The expression estate which is used in cl. (c) thirdly is not defined by the Act but by reason of its s. 3 (6) the definition in s. 3 of the Punja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the estate', to pay the entire assessment due on the estate. Thus though it is not really the case of a co-sharer, it is somewhat akin to that of a co-sharer because of the joint liability for payment of land revenue. We therefore consider that the restriction on the right of a vendor in such a case is a reasonable one and not repugnant to Art. 19 of the Constitution. As learned Counsel for the appellant desired to have time to ascertain whether there had been a notification of the Local Government such as is referred to in a. 61 of the Punjab Land Revenue Code, we adjourned the case to enable him to produce the notification, if there was one, and we were informed that there was none. If therefore the matters had stood as under the law as enacted in s. 15 of the Act the appeal would have to be dismissed. The Punjab Legislature, however, effected substantial amendments to the Punjab Preemption Act of 1913 by Punjab Act 10 of 1960 and it is the impact of this later legislation on the rights of the parties to this appeal that now requires to be considered. Punjab Act 10 of 1960 received the assent of the Governor on February 2, 1960, and was published in the Punjab Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient to permit a decree passed in favour of a pre- emptor being set aside by an appellate Court merely because the ground on which preemption had been claimed and decreed was not one that was included within the amended provisions. He placed reliance on the principle that besides the rule of construction that retrospective operation is not, in the absence of express words therefore, to be given to a statute so as to impair existing rights except as regards matters of procedure, there was a further well-recognised rule that a statute was not to be construed to have a greater retrospective operation than its language rendered strictly necessary. The argument was that though by the use, in s. 31, of the words Suit for preemption instituted before or after the commencement of the Act a certain amount of retrospective effect was intended, still the retrospectivity was but partial in its operation and that the words used did not permit the setting aside by an appellate Court of a decree which was validly passed under the substantive law applicable to the facts at the date of the original decree,. In this connection he placed considerable reliance on the employment of the words no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, pass a decree for an amount of interest for the period preceding the institution of the suit, which, together with any amount already realised as interest through the Court or otherwise, is greater than the amount of loan advanced, or, if the loan is based on a document, the amount of loan mentioned in, or evidenced by such document. In particular learned counsel stressed the fact that unlike in s. 31 of the Act now under consideration, in the Bihar Act there were specific references to appeals and revision and that this made a difference. But in our opinion this makes no difference since it is admitted that s. 31 even according to the respondent has to be given effect to, not merely by a trial Court but also by an appellate Court, only learned Counsel could urge that the appellate Court could give effect to the Amending Act only in cases where the trial Court has refused a decree for pre- emption. No distinction can, therefore, be rested on the ground that the Bihar Act specifically referred to ,appeals and revisions seeing that the relevant operative w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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