When the Parliament thought of conferring the rights of succession in
respect of various properties including agricultural holdings, it put a
qualification on the right to transfer to an outsider and gave preferential
rights to the other heirs with a designed object. Under the Shastrik Law, the
interest of a coparcener would devolve by principles of survivorship to
which an exception was made by virtue of Section 6 of the Act. If the
conditions stipulated in Section 6 were satisfied, the devolution of such
interest of the deceased would not go by survivorship but in accordance with
the provisions of the Act. Since the right itself in certain 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 to the family would be held
within the family, to the extent possible and no outsider would easily be
planted in the family properties. In our view, it is with this objective that a
preferential right was conferred upon the remaining heirs, in case any of the
heirs was desirous of transferring his interest in the property that he received
by way of succession under the Act.
21. We, therefore, conclude that 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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2553 OF 2019
Babu Ram Vs Santokh Singh
Dated:March 7, 2019.
Citation: AIR 2019 SC 1506
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal arises out of final judgment and order dated 07.05.2018
passed by the High Court1 in Regular Second Appeal No.457 of 2002 and
raises questions regarding scope and applicability of Section 22 of the Hindu
Succession Act, 1956 (hereinafter referred to as the Act), and particularly,
whether preferential right given to an heir of a Hindu under said Section 22
will be inapplicable if the property in question is an agricultural land.
1High Court of Himachal Pradesh at Shimla
3. The facts leading to the filing of this appeal, in brief, are as under:
(a) Two brothers, namely, Santokh Singh2 and Nathu Ram3, sons of
Lajpat S/o Rupa inherited, among others, certain agricultural lands
after the death of their father. According to Santokh Singh an
arrangement was arrived at, in terms of which the brothers were to be
in separate enjoyment of certain specified pieces of land. Since Nathu
Ram was not interested in continuing with said arrangement he gave a
legal notice to Santokh Singh and later executed a registered sale deed
on 19.08.1991 in respect of his interest in the lands in favour of one
Babu Ram4 S/o Kanshi Ram.
(b) Soon thereafter, Civil Suit No.194 of 1991 was filed by Santokh Singh
in the Court of Senior Sub-Judge, Hamirpur praying for permanent
prohibitory injunction and declaration. It was inter alia submitted that
as a co-sharer, the Plaintiff had a preferential right to acquire the land
which was sought to be transferred by Defendant No.1 in favour of
Defendant No.2. The suit was contested and the trial court by its
judgment and order dated 04.05.1994 dismissed said suit.
(c) The Plaintiff, being aggrieved filed Civil Appeal No.86 of 1994 in the
Court of District Judge, Hamirpur, which appeal was partly allowed.
2 Original Plaintiff
3 Original Defendant No.1
4 Original Defendant No.2
The Appellate Court placed reliance on the decisions reported in AIR
2000 Madras 516 and AIR 1988 Orissa 285 and held that the Plaintiff
had a preferential right under Section 22 of the Act to acquire the suit
land measuring 19 kanals half of the entire land entered in Khata
No.25 min, Khatoni No.29 min, 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
others5), the High Court dismissed said Second Appeal, which
decision is presently under challenge by Defendant No.2-Appellant.
4. The challenge before this Court is confined to the applicability of
Section 22 of the Act to agricultural lands and the factual facets of the matter
are not in dispute. We have heard Mr. Sanchar Anand, learned Advocate for
the Appellant and Mr. Ranjan Mukherjee, learned Advocate for heirs of
Respondent No.1 – Plaintiff. With the assistance of the learned Counsel we
have considered all the relevant decisions on the point.
5. On a reference made under Section 213 of the Government of India
Act, 1935 (hereinafter referred to as ‘1935 Act’), the following questions were
considered by the Federal Court “In the matter of the Hindu 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
the Legislative Assembly on 4th February, 1937, and by the
Council of State on 6th April 1937, and which received the
Governor-General’s assent on 14th April 1937, or the Hindu
Women’s Rights to Property (Amendment) Act, 1938
(Central Act, 11 of 1938), which was passed in all its stages
after 1st April 1937, operate to regulate (a) succession to
agricultural land? (b) devolution by survivorship of property
other than agricultural land?
5 R.S.A.No. 258 of 2012 decided on 1.3.2018
6 (1941) 3 FCR 12 = AIR 1941 FC 72
(2) Is the subject of devolution by survivorship of
property other than agricultural land included in any of the
entries in the three Legislative Lists in Sch. 7, Government
of India Act, 1935?”
The observations of the Federal Court relevant for the present purposes
were:-
“……….After 1st April 1937, the Central Legislature
was precluded from dealing with the subjects enumerated in
List II of Sch. 7, Constitution Act, so far as the Governors’
Provinces were concerned. Laws with respect to the
“devolution of agricultural land” could be enacted only by
the Provincial Legislatures (entry No.21 of List II), and
“wills, intestacy and succession, save as regards agricultural
land” appeared as entry No.7 of List III, the Concurrent List.
Act 18, read with the amending Act of 1938, endeavored to
improve the position of Hindu widows in two classes of
cases (a) where by the operation of the principle of
survivorship the widow is excluded from enjoyment of the
share of her husband 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 devolution by survivorship of
property other than agricultural land is included in entry
No.7 of List 3, the Concurrent List.”
6. The relevant entries in 1935 Act which were considered by the
Federal Court underwent significant changes when the Constitution of India
was adopted. The following Tabular Chart would show the distinction
between the concerned entries:-
Seventh
Schedul
e
Government of India Act 1935 Constitution of India
LIST I 54. Taxes on income other than
agricultural income.
82. Taxes on income other than
agricultural income.
55. Taxes on the capital value of the
assets, exclusive of agricultural land,
of individuals and companies;
86. Taxes on the capital value of the
assets, exclusive of agricultural land,
of individuals and companies; taxes
on the capital of companies.
56-A. Estate duty in respect of
property other than agricultural land.
87. Estate duty in respect of property
other than agricultural land.
56. Duties in respect of succession to
property other than agricultural land.
88. Duties in respect of succession to
property other than agricultural land.
LIST II 20. Agriculture, including agricultural
education and research, protection
against pests and prevention of plant
diseases; improvement of stock and
prevention of animal diseases;
veterinary training and practice;
pounds and the prevention of cattletrespass.
14. Agriculture, including agricultural
education and research, protection
against pests and prevention of plant
diseases.
21. Land, that is to say, rights in or
over land, land tenures, including the
relation of landlord and tenant and
the collection of rents; transfer,
alienation and devolution of
agricultural land; land improvement
and agricultural loans; colonization;
Courts of Wards; encumbered and
attached estates; treasure trove.
18. Land, that is to say, right in or
over land, land tenures including the
relation of landlord and tenant, and
the collection of rents; transfer and
alienation of agricultural land; land
improvement and agricultural loans;
colonization.
27. Trade and commerce within the
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; 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.
7. The Act came into force on 17th June, 1956. Section 22 has remained
unchanged since the enactment. While considering the effect of Section 22,
Section 4(2) may also be required to be looked into. However, Section 4(2),
as originally enacted has since then been omitted by 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
expressly provided in this Act, -
(a) Any text, rule or interpretation of
Hindu law or any custom or usage as
part of that law in force immediately
before the commencement of this Act
shall cease to have effect with respect
to any matter for which provision is
made in this Act;
(b) Any other law in force immediately
before the commencement of this Act
shall cease to apply to Hindus insofar
as it is inconsistent with any of the
provisions contained in this Act.
(2) For the removal of doubts it is hereby declared
that nothing contained in this Act shall be deemed to
affect the provision of any law for the time being in
force providing for the prevention of fragmentation of
agricultural holdings or for the fixation of ceilings or
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 in any immovable property of
an intestate, or in any business carried on by him or
her, whether solely or in conjunction with others,
devolves upon two or more heirs specified in class I
of the Schedule, and any one of such heirs proposes to
transfer his or her interest in the property or business,
the other heirs shall have a preferential right to
acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the
property of the deceased may be transferred under this
section shall, in the absence of any agreement
between the parties, be determined by the court on
application being made to it in this behalf, and if any
person proposing to acquire 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 Others7 by the High Court of
Orissa. The submission that Section 22 of the Act would not cover
7AIR 1957 Orissa 1 = 22 (1956) CLT 466
succession in respect of agricultural lands was rejected. The contention on
the strength of judgment of the Federal Court6 was also negated as under:-
“14. Mr. Jena further contended that the Act, even if
applies retrospectively, will not apply to agricultural
lands, and for this he relies upon the Federal Court
decision reported in Hindu Women's Rights to Property
Act, 1937, In the matter of AIR 1941 PC 72 (K). That
was a case which came up for decision by the Federal
Court on a reference made by His Excellency the
Governor-General of India.
Gwyer C. J., who delivered the judgment of the Court
held that the Hindu Women's Rights to Property Act of
1937, and the Hindu Women's Rights to Property
(Amendment) Act of 1938, do not operate to regulate
succession to agricultural land in the Governors'
Provinces; and do operate to regulate devolution by
survivorship of property to other than agricultural lands.
This decision, in view of the changed position in law, no
longer holds good. The Federal Court decision was
based upon the law of legislative competency as it then
stood, by the Government of India Act, 1935. In
Schedule 7, Government of India Act, 1935, this subject
appears in the Concurrent Legislative List (List 3) as
item No. 7. Item 7 was in the following terms:
“Wills, Intestacy and Succession, save as
regards agricultural lands.”
Now under the present Constitution of India the same
subject has been dealt with in the Concurrent List (List
3) in Schedule 7 as item No. 5. Item No. 5 runs as
follows:
“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.”
It is clear that the Parliament had omitted the phrase
"save as regards agricultural land" from item No. 5 of
the Concurrent List in order to have a uniform personal
law for Hindus throughout India, and accordingly, it
necessitated the enlargement of Entry No. 5. We have no
doubt, therefore, that in view of the change in law, the
Act will apply to agricultural lands also, and the
decision in AIR 1941 FC 72 (K) would no longer hold
good.”
9. Before Full Bench of Punjab High Court in Amar Singh and Ors. vs.
Baldev Singh and Ors.8 challenge was raised in the context of rights of a
Hindu female under Section 14 of the Act. It was held inter alia that Section
14 of the Act was “within the legislative field spanned in Entry 5 of List III,
the concurrent List”. However, a Division Bench of the same High Court in
Jaswant and ors. vs. Smt. Basanti Devi9 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
8 AIR 1960 Punjab 666
9 1970 PLJ 587 = 1970 Punjab Law Reporter Vol. 72 page No.958
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 Mr. Roop Chand, the Learned
Counsel for the Respondent, was that Section 22 is
ultra vires the Constitution as the Central Legislature
had no right to pass such a law regarding agricultural
lands. This argument cannot be accepted because it
cannot be presumed that the Legislature was passing
law regarding matters which it had no power to pass
particularly when with regard to immovable property
other than agricultural land, it has the power to enact
such a law. This view finds support from the decision
of the Federal Court in re Hindu Women's Rights to
Property Act AIR 1941 FC 72, wherein in a similar
situation their Lordships of the Federal Court refused
to strike down the provisions of the Hindu Women's
Rights to Property Act, 1937, on the precise
arguments.”
10. The High Court of Judicature at Allahabad, in Smt. Prema Devi vs.
Joint Director of Consolidation (Head quarter) at Gorakhpur Camp and
Ors.10 held:-
10 AIR 1970 Allahabad 238
“5… …we are of the opinion that the Hindu
Succession Act, 1956, cannot be made applicable to
agricultural plots. This Act was passed by the Central
Legislature in 1956 and the only entry under which the
Central Legislature had the jurisdiction to pass the Act,
was entry No. 5 in the third list of the Seventh
Schedule of the Constitution. This entry is as follows:--
"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." This entry obviously relates only to
personal law and laws passed under this entry do not
apply to any particular property. They merely
determine the personal law. In List 2, Entry No. 18 is
as follows:-- "Land, that is to say, right in or over land,
land tenures including the relation of landlord and
tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement and
agricultural loans; colonization." This entry which is in
the exclusive jurisdiction of the State Legislature is in
the widest term. All laws relating to land and land
tenures are therefore, within the exclusive jurisdiction
of the State Legislature. Even personal law can become
applicable to land tenures if so provided in the State
Law, but it cannot override State legislation”.
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 Debi7. On the other hand, some High Courts have held to the
contrary and have followed the decisions of the Punjab High Court in
Jaswant9 and of the Allahabad High Court in Prema Devi10. 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.11 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 various High
Courts in every case, but suffice it to say that the following chart may
indicate how the question was answered by some of the High Courts.
S.No. The provisions of the Act and
Section 22 thereof applied to
agricultural lands
The Act was held to be inapplicable to
agricultural lands.
1. Sm. Laxmi Debi vs. Surendra
Kumar Panda and Ors.
(AIR 1957 Orissa 1)
Jaswant and ors. vs. Smt. Basanti Devi
(1970 Punjab Law Reporter Vol. 72
page No. 958)
2. Amar Singh and Ors. vs. Baldev
Singh and Ors.
(AIR 1960 Punj 666 (FB) )
Prema Devi vs. Joint Director of
Consolidation (Head quarter) at
Gorakhpur Camp and Ors.
(AIR 1970 Allahabad 238)
3. Basavant Gouda vs.
Channabasawwa and Anr.
(AIR 1971 Mysore 151)
Nahar Hirasingh and Ors. vs. Dukalhin
and ors.
(AIR 1974 MP 141)
4. Nidhi Swain and Ors. vs. Khati
Dibya and Ors.
(AIR 1974 Orissa 70)
Jeewanram vs. Lichmadevi and Anr
(AIR 1981 Rajasthan 16)
5. Venkatalakshmamma & Ors. Vs.
Lingamma & Anr.
Balkaur Singh vs. Gurmail Singh
(2007 SCC OnLine P&H 1257)
11 AIR 1994 Bombay 247 = (1994) 96 Bombay Law Reporter 227
(1984 SCC OnLine Kar 141)
6. Tukaram Genba Jadhav and Ors.
vs. Laxman Genba Jadhav and
Anr.
(AIR 1994 Bombay 247)
Subramaniya Gounder & Ors. vs.
Easwara Gounder
(2010-5-L.W. 941)
7. Bharat vs. Anjanabai
(2007 (6) Mh.LJ 706)
12. As regards the High Court of Himachal Pradesh, from which the
present matter arises, the Division Bench of the High Court in Roshan Lal
(deceased) through his LRs. vs. Pritam Singh and ors.5 had considered all
relevant decisions on the point and concluded that the provisions of Section
22 of the Act would apply in relation to succession to agricultural lands. The
conclusion arrived at in the leading judgment with which the other learned
Judge concurred, was:-
“56. Thus, “succession” falls within the scope of entry
No. 5 of List-III and in case a narrow and pedantic or
myopic view of interpretation is adopted by accepting
succession to an agricultural land, bringing it within
the scope of “rights in and over 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.12. 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 Wills, intestacy and succession as
also joint family and partition. Although Entry 6 of the
Concurrent List refers to transfer of property other than
agricultural land, agriculture as well as land including
transfer and alienation of agricultural land are placed
under Entries 14 and 18 of the State List. Therefore, it
is quite apparent that the Legislature of the State of
Hyderabad was competent to enact a Legislation which
dealt with intestacy and succession relating to Joint
Family Property including agricultural land. The
language of the Hindu Women's Rights to Property Act,
1937 as enacted in the State of Hyderabad is as general
as the Original Act. The words 'property' as well as
'interest in Joint Family Property' are wide enough to
cover agricultural lands also. Therefore, on an
12 (1999) 1 SCC 292
interpretation of the Hindu Women's Right to Property
Act, 1937 as enacted by the State of Hyderabad, the
Act covers agricultural lands. As the Federal Court has
noted in the above judgment, the Hindu Women's Right
to Property Act is a remedial Act seeking to mitigate
hardships of a widow regarding inheritance under the
Hindu Law prior to the enactment of the 1937 Act; and
it ought to receive a beneficial interpretation. The
beneficial interpretation in the present context would
clearly cover agricultural lands under the word
'property'. This Act also received the assent of the
President under Article 254(2) and, therefore, it will
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 exclusive domain of the
provincial legislatures. The idea that the provincial legislatures were alone
entitled to deal with matters relating to “transfer, alienation and devolution
of agricultural land” was again made clear in Entry 7 of List III by
expression “…succession, save as regards agricultural land” which dealt
with concurrent powers. The provincial legislature had thus exclusive
competence with regard to transfer, alienation and devolution of agricultural
land. In the circumstances, the Federal Court had answered the first
question that the provisions of Hindu Women’s Rights to Property Act, 1937
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 vivos, the
competence under Entry 18 of List II is with the State
legislatures but when it comes to “intestacy and succession”
which are essentially transfers by operation of law as per law
applicable to the person upon whose death the succession is to
open, both the Union as well as State legislatures are
competent to deal with the topic. Consequently, going by the
principles of Article 254 of the Constitution of India the matter
will have to be dealt with.
16. In the present case it is nobody’s case that the matter relating to
succession to an interest in agricultural lands is in any way dealt with by any
State legislation operating in the State of Himachal Pradesh or that such
legislation must prevail in accordance with the principles under Article 254
of the Constitution of India. The field is occupied only by Section 22 of the
Act insofar as State of Himachal Pradesh is concerned. The High Court was,
therefore, absolutely right in holding that Section 22 of the Act would
operate in respect of succession to agricultural lands in the State.
17. Though, succession to an agricultural land is otherwise dealt with
under Section 22 of the Act, the provisions of Section 4(2) of the Act, before
its omission, had made it clear that the provisions of the Act would not apply
in cases inter alia of devolution of tenancy rights in respect of agricultural
holdings. Thus, the effect of Section 4(2) of the Act before its deletion was
quite clear that, though the general field of succession including in respect of
agricultural lands was dealt with under Section 22 of the Act, insofar as
devolution of tenancy rights with respect to agricultural holdings were
concerned, the provisions of Section 22 would be inapplicable. The High
Court of Bombay was, therefore, absolutely right in its conclusion.
However, with the deletion of Section 4(2) of the Act, now there is no
exception to the applicability of Section 22 of the Act. But we are not called
upon to consider that facet of the matter.
18. We now turn to the next stage of discussion. Even if it be accepted
that the provisions of Section 22 would apply in respect of succession to
agricultural lands, the question still remains whether the preferential right
could be enjoyed by one or more of the heirs. Would that part also 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.
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 in illustration (b) had
inherited an agricultural holding and one of them was desirous of
disposing of his or her interest in the holding, the principles of
Section 22 of the Act would step in.
The reason is clear. The source of title or interest of any of the heirs
in the third illustration, is purely through the succession which is recognized
in terms of the provisions of the Act. Since the right or interest itself is
conferred by the provisions of the Act, the manner in which said right can be
exercised has also been specified in the very same legislation.
Therefore, 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.
20. When the Parliament thought of conferring the rights of succession in
respect of various properties including agricultural holdings, it put a
qualification on the right to transfer to an outsider and gave preferential
rights to the other heirs with a designed object. Under the Shastrik Law, the
interest of a coparcener would devolve by principles of survivorship to
which an exception was made by virtue of Section 6 of the Act. If the
conditions stipulated in Section 6 were satisfied, the devolution of such
interest of the deceased would not go by survivorship but in accordance with
the provisions of the Act. Since the right itself in certain 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 to the family would be held
within the family, to the extent possible and no outsider would easily be
planted in the family properties. In our view, it is with this objective that a
preferential right was conferred upon the remaining heirs, in case any of the
heirs was desirous of transferring his interest in the property that he received
by way of succession under the Act.
21. We, therefore, conclude that 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 in
Civil Appeal No.86 of 1994. In the end, we must also declare that various
decisions of the High Courts, some of which are referred to above, which
have held contrary to what we have concluded, stand overruled.
22. The appeal is dismissed without any order as to costs.
………..…..……..……J.
(Uday Umesh Lalit)
..………….……………J.
(M.R. Shah)
New Delhi,
March 7, 2019.
respect of various properties including agricultural holdings, it put a
qualification on the right to transfer to an outsider and gave preferential
rights to the other heirs with a designed object. Under the Shastrik Law, the
interest of a coparcener would devolve by principles of survivorship to
which an exception was made by virtue of Section 6 of the Act. If the
conditions stipulated in Section 6 were satisfied, the devolution of such
interest of the deceased would not go by survivorship but in accordance with
the provisions of the Act. Since the right itself in certain 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 to the family would be held
within the family, to the extent possible and no outsider would easily be
planted in the family properties. In our view, it is with this objective that a
preferential right was conferred upon the remaining heirs, in case any of the
heirs was desirous of transferring his interest in the property that he received
by way of succession under the Act.
21. We, therefore, conclude that 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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2553 OF 2019
Babu Ram Vs Santokh Singh
Dated:March 7, 2019.
Citation: AIR 2019 SC 1506
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal arises out of final judgment and order dated 07.05.2018
passed by the High Court1 in Regular Second Appeal No.457 of 2002 and
raises questions regarding scope and applicability of Section 22 of the Hindu
Succession Act, 1956 (hereinafter referred to as the Act), and particularly,
whether preferential right given to an heir of a Hindu under said Section 22
will be inapplicable if the property in question is an agricultural land.
1High Court of Himachal Pradesh at Shimla
3. The facts leading to the filing of this appeal, in brief, are as under:
(a) Two brothers, namely, Santokh Singh2 and Nathu Ram3, sons of
Lajpat S/o Rupa inherited, among others, certain agricultural lands
after the death of their father. According to Santokh Singh an
arrangement was arrived at, in terms of which the brothers were to be
in separate enjoyment of certain specified pieces of land. Since Nathu
Ram was not interested in continuing with said arrangement he gave a
legal notice to Santokh Singh and later executed a registered sale deed
on 19.08.1991 in respect of his interest in the lands in favour of one
Babu Ram4 S/o Kanshi Ram.
(b) Soon thereafter, Civil Suit No.194 of 1991 was filed by Santokh Singh
in the Court of Senior Sub-Judge, Hamirpur praying for permanent
prohibitory injunction and declaration. It was inter alia submitted that
as a co-sharer, the Plaintiff had a preferential right to acquire the land
which was sought to be transferred by Defendant No.1 in favour of
Defendant No.2. The suit was contested and the trial court by its
judgment and order dated 04.05.1994 dismissed said suit.
(c) The Plaintiff, being aggrieved filed Civil Appeal No.86 of 1994 in the
Court of District Judge, Hamirpur, which appeal was partly allowed.
2 Original Plaintiff
3 Original Defendant No.1
4 Original Defendant No.2
The Appellate Court placed reliance on the decisions reported in AIR
2000 Madras 516 and AIR 1988 Orissa 285 and held that the Plaintiff
had a preferential right under Section 22 of the Act to acquire the suit
land measuring 19 kanals half of the entire land entered in Khata
No.25 min, Khatoni No.29 min, 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
others5), the High Court dismissed said Second Appeal, which
decision is presently under challenge by Defendant No.2-Appellant.
4. The challenge before this Court is confined to the applicability of
Section 22 of the Act to agricultural lands and the factual facets of the matter
are not in dispute. We have heard Mr. Sanchar Anand, learned Advocate for
the Appellant and Mr. Ranjan Mukherjee, learned Advocate for heirs of
Respondent No.1 – Plaintiff. With the assistance of the learned Counsel we
have considered all the relevant decisions on the point.
5. On a reference made under Section 213 of the Government of India
Act, 1935 (hereinafter referred to as ‘1935 Act’), the following questions were
considered by the Federal Court “In the matter of the Hindu 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
the Legislative Assembly on 4th February, 1937, and by the
Council of State on 6th April 1937, and which received the
Governor-General’s assent on 14th April 1937, or the Hindu
Women’s Rights to Property (Amendment) Act, 1938
(Central Act, 11 of 1938), which was passed in all its stages
after 1st April 1937, operate to regulate (a) succession to
agricultural land? (b) devolution by survivorship of property
other than agricultural land?
5 R.S.A.No. 258 of 2012 decided on 1.3.2018
6 (1941) 3 FCR 12 = AIR 1941 FC 72
(2) Is the subject of devolution by survivorship of
property other than agricultural land included in any of the
entries in the three Legislative Lists in Sch. 7, Government
of India Act, 1935?”
The observations of the Federal Court relevant for the present purposes
were:-
“……….After 1st April 1937, the Central Legislature
was precluded from dealing with the subjects enumerated in
List II of Sch. 7, Constitution Act, so far as the Governors’
Provinces were concerned. Laws with respect to the
“devolution of agricultural land” could be enacted only by
the Provincial Legislatures (entry No.21 of List II), and
“wills, intestacy and succession, save as regards agricultural
land” appeared as entry No.7 of List III, the Concurrent List.
Act 18, read with the amending Act of 1938, endeavored to
improve the position of Hindu widows in two classes of
cases (a) where by the operation of the principle of
survivorship the widow is excluded from enjoyment of the
share of her husband 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 devolution by survivorship of
property other than agricultural land is included in entry
No.7 of List 3, the Concurrent List.”
6. The relevant entries in 1935 Act which were considered by the
Federal Court underwent significant changes when the Constitution of India
was adopted. The following Tabular Chart would show the distinction
between the concerned entries:-
Seventh
Schedul
e
Government of India Act 1935 Constitution of India
LIST I 54. Taxes on income other than
agricultural income.
82. Taxes on income other than
agricultural income.
55. Taxes on the capital value of the
assets, exclusive of agricultural land,
of individuals and companies;
86. Taxes on the capital value of the
assets, exclusive of agricultural land,
of individuals and companies; taxes
on the capital of companies.
56-A. Estate duty in respect of
property other than agricultural land.
87. Estate duty in respect of property
other than agricultural land.
56. Duties in respect of succession to
property other than agricultural land.
88. Duties in respect of succession to
property other than agricultural land.
LIST II 20. Agriculture, including agricultural
education and research, protection
against pests and prevention of plant
diseases; improvement of stock and
prevention of animal diseases;
veterinary training and practice;
pounds and the prevention of cattletrespass.
14. Agriculture, including agricultural
education and research, protection
against pests and prevention of plant
diseases.
21. Land, that is to say, rights in or
over land, land tenures, including the
relation of landlord and tenant and
the collection of rents; transfer,
alienation and devolution of
agricultural land; land improvement
and agricultural loans; colonization;
Courts of Wards; encumbered and
attached estates; treasure trove.
18. Land, that is to say, right in or
over land, land tenures including the
relation of landlord and tenant, and
the collection of rents; transfer and
alienation of agricultural land; land
improvement and agricultural loans;
colonization.
27. Trade and commerce within the
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; 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.
7. The Act came into force on 17th June, 1956. Section 22 has remained
unchanged since the enactment. While considering the effect of Section 22,
Section 4(2) may also be required to be looked into. However, Section 4(2),
as originally enacted has since then been omitted by 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
expressly provided in this Act, -
(a) Any text, rule or interpretation of
Hindu law or any custom or usage as
part of that law in force immediately
before the commencement of this Act
shall cease to have effect with respect
to any matter for which provision is
made in this Act;
(b) Any other law in force immediately
before the commencement of this Act
shall cease to apply to Hindus insofar
as it is inconsistent with any of the
provisions contained in this Act.
(2) For the removal of doubts it is hereby declared
that nothing contained in this Act shall be deemed to
affect the provision of any law for the time being in
force providing for the prevention of fragmentation of
agricultural holdings or for the fixation of ceilings or
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 in any immovable property of
an intestate, or in any business carried on by him or
her, whether solely or in conjunction with others,
devolves upon two or more heirs specified in class I
of the Schedule, and any one of such heirs proposes to
transfer his or her interest in the property or business,
the other heirs shall have a preferential right to
acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the
property of the deceased may be transferred under this
section shall, in the absence of any agreement
between the parties, be determined by the court on
application being made to it in this behalf, and if any
person proposing to acquire 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 Others7 by the High Court of
Orissa. The submission that Section 22 of the Act would not cover
7AIR 1957 Orissa 1 = 22 (1956) CLT 466
succession in respect of agricultural lands was rejected. The contention on
the strength of judgment of the Federal Court6 was also negated as under:-
“14. Mr. Jena further contended that the Act, even if
applies retrospectively, will not apply to agricultural
lands, and for this he relies upon the Federal Court
decision reported in Hindu Women's Rights to Property
Act, 1937, In the matter of AIR 1941 PC 72 (K). That
was a case which came up for decision by the Federal
Court on a reference made by His Excellency the
Governor-General of India.
Gwyer C. J., who delivered the judgment of the Court
held that the Hindu Women's Rights to Property Act of
1937, and the Hindu Women's Rights to Property
(Amendment) Act of 1938, do not operate to regulate
succession to agricultural land in the Governors'
Provinces; and do operate to regulate devolution by
survivorship of property to other than agricultural lands.
This decision, in view of the changed position in law, no
longer holds good. The Federal Court decision was
based upon the law of legislative competency as it then
stood, by the Government of India Act, 1935. In
Schedule 7, Government of India Act, 1935, this subject
appears in the Concurrent Legislative List (List 3) as
item No. 7. Item 7 was in the following terms:
“Wills, Intestacy and Succession, save as
regards agricultural lands.”
Now under the present Constitution of India the same
subject has been dealt with in the Concurrent List (List
3) in Schedule 7 as item No. 5. Item No. 5 runs as
follows:
“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.”
It is clear that the Parliament had omitted the phrase
"save as regards agricultural land" from item No. 5 of
the Concurrent List in order to have a uniform personal
law for Hindus throughout India, and accordingly, it
necessitated the enlargement of Entry No. 5. We have no
doubt, therefore, that in view of the change in law, the
Act will apply to agricultural lands also, and the
decision in AIR 1941 FC 72 (K) would no longer hold
good.”
9. Before Full Bench of Punjab High Court in Amar Singh and Ors. vs.
Baldev Singh and Ors.8 challenge was raised in the context of rights of a
Hindu female under Section 14 of the Act. It was held inter alia that Section
14 of the Act was “within the legislative field spanned in Entry 5 of List III,
the concurrent List”. However, a Division Bench of the same High Court in
Jaswant and ors. vs. Smt. Basanti Devi9 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
8 AIR 1960 Punjab 666
9 1970 PLJ 587 = 1970 Punjab Law Reporter Vol. 72 page No.958
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 Mr. Roop Chand, the Learned
Counsel for the Respondent, was that Section 22 is
ultra vires the Constitution as the Central Legislature
had no right to pass such a law regarding agricultural
lands. This argument cannot be accepted because it
cannot be presumed that the Legislature was passing
law regarding matters which it had no power to pass
particularly when with regard to immovable property
other than agricultural land, it has the power to enact
such a law. This view finds support from the decision
of the Federal Court in re Hindu Women's Rights to
Property Act AIR 1941 FC 72, wherein in a similar
situation their Lordships of the Federal Court refused
to strike down the provisions of the Hindu Women's
Rights to Property Act, 1937, on the precise
arguments.”
10. The High Court of Judicature at Allahabad, in Smt. Prema Devi vs.
Joint Director of Consolidation (Head quarter) at Gorakhpur Camp and
Ors.10 held:-
10 AIR 1970 Allahabad 238
“5… …we are of the opinion that the Hindu
Succession Act, 1956, cannot be made applicable to
agricultural plots. This Act was passed by the Central
Legislature in 1956 and the only entry under which the
Central Legislature had the jurisdiction to pass the Act,
was entry No. 5 in the third list of the Seventh
Schedule of the Constitution. This entry is as follows:--
"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." This entry obviously relates only to
personal law and laws passed under this entry do not
apply to any particular property. They merely
determine the personal law. In List 2, Entry No. 18 is
as follows:-- "Land, that is to say, right in or over land,
land tenures including the relation of landlord and
tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement and
agricultural loans; colonization." This entry which is in
the exclusive jurisdiction of the State Legislature is in
the widest term. All laws relating to land and land
tenures are therefore, within the exclusive jurisdiction
of the State Legislature. Even personal law can become
applicable to land tenures if so provided in the State
Law, but it cannot override State legislation”.
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 Debi7. On the other hand, some High Courts have held to the
contrary and have followed the decisions of the Punjab High Court in
Jaswant9 and of the Allahabad High Court in Prema Devi10. 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.11 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 various High
Courts in every case, but suffice it to say that the following chart may
indicate how the question was answered by some of the High Courts.
S.No. The provisions of the Act and
Section 22 thereof applied to
agricultural lands
The Act was held to be inapplicable to
agricultural lands.
1. Sm. Laxmi Debi vs. Surendra
Kumar Panda and Ors.
(AIR 1957 Orissa 1)
Jaswant and ors. vs. Smt. Basanti Devi
(1970 Punjab Law Reporter Vol. 72
page No. 958)
2. Amar Singh and Ors. vs. Baldev
Singh and Ors.
(AIR 1960 Punj 666 (FB) )
Prema Devi vs. Joint Director of
Consolidation (Head quarter) at
Gorakhpur Camp and Ors.
(AIR 1970 Allahabad 238)
3. Basavant Gouda vs.
Channabasawwa and Anr.
(AIR 1971 Mysore 151)
Nahar Hirasingh and Ors. vs. Dukalhin
and ors.
(AIR 1974 MP 141)
4. Nidhi Swain and Ors. vs. Khati
Dibya and Ors.
(AIR 1974 Orissa 70)
Jeewanram vs. Lichmadevi and Anr
(AIR 1981 Rajasthan 16)
5. Venkatalakshmamma & Ors. Vs.
Lingamma & Anr.
Balkaur Singh vs. Gurmail Singh
(2007 SCC OnLine P&H 1257)
11 AIR 1994 Bombay 247 = (1994) 96 Bombay Law Reporter 227
(1984 SCC OnLine Kar 141)
6. Tukaram Genba Jadhav and Ors.
vs. Laxman Genba Jadhav and
Anr.
(AIR 1994 Bombay 247)
Subramaniya Gounder & Ors. vs.
Easwara Gounder
(2010-5-L.W. 941)
7. Bharat vs. Anjanabai
(2007 (6) Mh.LJ 706)
12. As regards the High Court of Himachal Pradesh, from which the
present matter arises, the Division Bench of the High Court in Roshan Lal
(deceased) through his LRs. vs. Pritam Singh and ors.5 had considered all
relevant decisions on the point and concluded that the provisions of Section
22 of the Act would apply in relation to succession to agricultural lands. The
conclusion arrived at in the leading judgment with which the other learned
Judge concurred, was:-
“56. Thus, “succession” falls within the scope of entry
No. 5 of List-III and in case a narrow and pedantic or
myopic view of interpretation is adopted by accepting
succession to an agricultural land, bringing it within
the scope of “rights in and over 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.12. 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 Wills, intestacy and succession as
also joint family and partition. Although Entry 6 of the
Concurrent List refers to transfer of property other than
agricultural land, agriculture as well as land including
transfer and alienation of agricultural land are placed
under Entries 14 and 18 of the State List. Therefore, it
is quite apparent that the Legislature of the State of
Hyderabad was competent to enact a Legislation which
dealt with intestacy and succession relating to Joint
Family Property including agricultural land. The
language of the Hindu Women's Rights to Property Act,
1937 as enacted in the State of Hyderabad is as general
as the Original Act. The words 'property' as well as
'interest in Joint Family Property' are wide enough to
cover agricultural lands also. Therefore, on an
12 (1999) 1 SCC 292
interpretation of the Hindu Women's Right to Property
Act, 1937 as enacted by the State of Hyderabad, the
Act covers agricultural lands. As the Federal Court has
noted in the above judgment, the Hindu Women's Right
to Property Act is a remedial Act seeking to mitigate
hardships of a widow regarding inheritance under the
Hindu Law prior to the enactment of the 1937 Act; and
it ought to receive a beneficial interpretation. The
beneficial interpretation in the present context would
clearly cover agricultural lands under the word
'property'. This Act also received the assent of the
President under Article 254(2) and, therefore, it will
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 exclusive domain of the
provincial legislatures. The idea that the provincial legislatures were alone
entitled to deal with matters relating to “transfer, alienation and devolution
of agricultural land” was again made clear in Entry 7 of List III by
expression “…succession, save as regards agricultural land” which dealt
with concurrent powers. The provincial legislature had thus exclusive
competence with regard to transfer, alienation and devolution of agricultural
land. In the circumstances, the Federal Court had answered the first
question that the provisions of Hindu Women’s Rights to Property Act, 1937
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 vivos, the
competence under Entry 18 of List II is with the State
legislatures but when it comes to “intestacy and succession”
which are essentially transfers by operation of law as per law
applicable to the person upon whose death the succession is to
open, both the Union as well as State legislatures are
competent to deal with the topic. Consequently, going by the
principles of Article 254 of the Constitution of India the matter
will have to be dealt with.
16. In the present case it is nobody’s case that the matter relating to
succession to an interest in agricultural lands is in any way dealt with by any
State legislation operating in the State of Himachal Pradesh or that such
legislation must prevail in accordance with the principles under Article 254
of the Constitution of India. The field is occupied only by Section 22 of the
Act insofar as State of Himachal Pradesh is concerned. The High Court was,
therefore, absolutely right in holding that Section 22 of the Act would
operate in respect of succession to agricultural lands in the State.
17. Though, succession to an agricultural land is otherwise dealt with
under Section 22 of the Act, the provisions of Section 4(2) of the Act, before
its omission, had made it clear that the provisions of the Act would not apply
in cases inter alia of devolution of tenancy rights in respect of agricultural
holdings. Thus, the effect of Section 4(2) of the Act before its deletion was
quite clear that, though the general field of succession including in respect of
agricultural lands was dealt with under Section 22 of the Act, insofar as
devolution of tenancy rights with respect to agricultural holdings were
concerned, the provisions of Section 22 would be inapplicable. The High
Court of Bombay was, therefore, absolutely right in its conclusion.
However, with the deletion of Section 4(2) of the Act, now there is no
exception to the applicability of Section 22 of the Act. But we are not called
upon to consider that facet of the matter.
18. We now turn to the next stage of discussion. Even if it be accepted
that the provisions of Section 22 would apply in respect of succession to
agricultural lands, the question still remains whether the preferential right
could be enjoyed by one or more of the heirs. Would that part also 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.
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 in illustration (b) had
inherited an agricultural holding and one of them was desirous of
disposing of his or her interest in the holding, the principles of
Section 22 of the Act would step in.
The reason is clear. The source of title or interest of any of the heirs
in the third illustration, is purely through the succession which is recognized
in terms of the provisions of the Act. Since the right or interest itself is
conferred by the provisions of the Act, the manner in which said right can be
exercised has also been specified in the very same legislation.
Therefore, 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.
20. When the Parliament thought of conferring the rights of succession in
respect of various properties including agricultural holdings, it put a
qualification on the right to transfer to an outsider and gave preferential
rights to the other heirs with a designed object. Under the Shastrik Law, the
interest of a coparcener would devolve by principles of survivorship to
which an exception was made by virtue of Section 6 of the Act. If the
conditions stipulated in Section 6 were satisfied, the devolution of such
interest of the deceased would not go by survivorship but in accordance with
the provisions of the Act. Since the right itself in certain 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 to the family would be held
within the family, to the extent possible and no outsider would easily be
planted in the family properties. In our view, it is with this objective that a
preferential right was conferred upon the remaining heirs, in case any of the
heirs was desirous of transferring his interest in the property that he received
by way of succession under the Act.
21. We, therefore, conclude that 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 in
Civil Appeal No.86 of 1994. In the end, we must also declare that various
decisions of the High Courts, some of which are referred to above, which
have held contrary to what we have concluded, stand overruled.
22. The appeal is dismissed without any order as to costs.
………..…..……..……J.
(Uday Umesh Lalit)
..………….……………J.
(M.R. Shah)
New Delhi,
March 7, 2019.
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