TMI Blog2019 (5) TMI 1975X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 - the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept. The preferential right given to an heir of a Hindu under Section 22 of the Act is applicable even if the property in question is an agricultural land. The High Court was right in affirming the judgment and decree passed by the Court of District Judge, Hamirpur - Appeal dismissed. - CIVIL APPEAL NO. 2553 OF 2019 (Arising out of Special Leave Petition (Civil) No.31039 of 2018) - - - Dated:- 7-5-2019 - HON BLE MR. JUSTICE UDAY UMESH LALIT AND HON BLE MR. JUSTICE M.R. SHAH. FOR THE PETITIONER(S) : MR. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, Khasra No.1119 measuring 38 kanals 1 marla situated in Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, (H.P.) on payment of sale consideration amounting to Rs.60,000/-. It also held the transfer of suit land by Defendant No.1 in favour of Defendant No.2 to be illegal, null and void and hit by the provisions of Section 22 of the Act. It directed Defendant No.2 to transfer the suit land in the name of the Plaintiff on receipt of sale consideration amounting to Rs.60,000/- within three months. (d) Defendant No.2, being aggrieved, carried the matter further by filing Regular Second Appeal No.457 of 2002 in the High Court, which inter alia framed following substantial question of law: 1. Whether Section 22 of the Hindu Succession Act excludes interest in agricultural land of an intestate and the preferential right over immovable property as envisaged in the said provision is confined only to business and such immovable property which does not include the agricultural land? (e) Relying principally on the decision of the Division Bench of the High Court in RSA No.258 of 2012 (Roshan Lal vs. Pritam Singh and Others [R.S.A.No. 258 of 2012 decided on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usband in property which he held jointly with other coparceners; and (b) where, even apart from the rule of survivorship, the widow is excluded from claiming any share in her husband s estate by reason of the existence of sons, grandsons or great-grandsons of the deceased who under the law take in preference to the widow. Provision is also made for securing a share to a widow even in cases where her husband had pre-deceased the last male owner (S.3 (1), first proviso). The Act purports to deal in quite general terms with the property or separate property of a Hindu dying intestate, or his interest in joint family property ; it does not distinguish between agricultural land and other property and is therefore 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 agricultural land in the Governors Provinces; and (b) do operate to regulate devolution by survivorship of property other than agricultural land. (2) The subject of devolutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Province; markets and fairs; money lending and money lenders. 30. Money-lending and moneylenders; relief of agricultural indebtedness. 41. Taxes on agricultural income. 46. Taxes on agricultural income. 43. Duties in respect of succession to agricultural land. 47. Duties in respect of succession to agricultural land. 43-A. Estate duty in respect of agricultural land. 48. Estate duty in respect of agricultural land. LIST III 6. Marriage and divorce; infants and minors; adoption. 7. Wills, intestacy, and succession, save as regards agricultural land. 5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. 8. Transfer of property other than agriculture land; registration of deeds and documents. 6. Transfer of property other than agricultural land; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire 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 acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.- In this section, court means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf. 8. The first case wherein scope of Section 22 was considered, was Sm. Laxmi Debi v. Surendra Kumar Panda and Others [AIR 1957 Orissa 1 = 22 (1956) CLT 466] by the High Court of Orissa. The submission that Section 22 of the Act would not cover succession in respect of agricultural lands was rejected. The contention on the strength of judgment of the Federal Court [(1941) 3 FCR 12 = AIR 1941 FC 72] was also negated as under:- 14. Mr. Jena further contended that the Act, even if applies retrospectively, will n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 behalf was as under:- 8. Mr. Roop Chand, the Learned Counsel for the Respondent, stressed that the words 'immovable property' used in Section 22 will include agricultural lands. Undoubtedly, they do. But one cannot lose sight of the fact that when the Central Legislature used these words it did so knowing fully well that it had no power to legislate regarding agricultural lands excepting for the purposes of devolution. Section 22 does not provide for devolution of agricultural lands. It merely gives a sort of right of pre-emption. In fact, as already pointed out, entry No. 6 in List III, clearly takes out agricultural lands from the ambit of the concurrent list. Agricultural land is specifically dealt with in entry No. 18 of List II. The only exception being in the case of devolution. Therefore, it must be held that Section 22 does not embrace agricultural lands. 9. The last argument of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Debi [ AIR 1957 Orissa 1 = 22 (1956) CLT 466] . On the other hand, some High Courts have held to the contrary and have followed the decisions of the Punjab High Court in Jaswant [ 1970 PLJ 587 = 1970 Punjab Law Reporter Vol. 72 page No.958] and of the Allahabad High Court in Prema Devi [ AIR 1970 Allahabad 238] . It is the latter line of cases which is relied upon by the learned counsel for the appellant in support of his submissions. It must also be stated that wherever there was question of succession to tenancy rights in respect of agricultural holdings, reference was made by some of the High Courts viz. the High Court of Bombay in Tukaram Genba Jadhav and Ors. vs. Laxman Genba Jadhav and Anr. [ AIR 1994 Bombay 247 = (1994) 96 Bombay Law Reporter 227] to the effect of the then existing provision under Section 4(2) of the Act. We are not going into the reasoning that weighed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 question, we must refer to the decision of this Court in Vaijanath and ors. vs. Guramma and anr. [ (1999) 1 SCC 292] . In that case matters pertaining to intestacy and succession relating to joint family property including agricultural land, were dealt with by a State law which had received the assent of the President. Following observations of this Court, are relevant for the present purposes:- 8. There is no exclusion of agricultural lands from Entry 5 which covers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh 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 . The changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows succession in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to transfer, alienation of agricultural land which are transfers inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate State legislation. b) If those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the State legislation. c) But, if, the very same three persons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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