Case Summary
| Citation | Babu Ram v. Santokh Singh (deceased) through his LRs(decided on 9 March 2019 (SC))CIVIL APPEAL NO. 2553 OF 2019 |
| Keywords | sec 22 HSA, preferential right, agricultural land, immovable property |
| Facts | Two siblings, in particular, Santokh Singh, a unique plaintiff, and Nathu Ram, unique Defendant 1, children of Lajpat son of Rupa acquired, among others, certain agricultural terrains after the demise of their dad.As indicated by Santokh Singh, a game plan was shown up, as far as which the siblings were to be in discrete pleasure in specifically determined parcels.Since Nathu Ram was not keen on proceeding with the said game plan, he gave a legitimate notification to Santokh Singh and later executed a registered sale deed on 19-8-1991 regarding his advantage in the grounds for one Babu Ram, unique Defendant 2 son of Kanshi Ram. |
| Issues | Whether the sale by Defendant No. 1 to Defendant No. 2 is null and void? Whether the sale was for legal necessity and valuable consideration? Whether Section 22 of the Hindu Succession Act applies to the transfer of agricultural land? |
| Contentions | |
| Law Points | The Supreme Court observed that “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. 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 the considered view of the Court, “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.” |
| Judgement | The Court held that Section 22 of the Hindu Succession Act applies to agricultural landPlaintiff has a preferential right to acquire the land under the law.The judgment and decree of the Lower Appellate Court were upheld, and the instant appeal andcross-objection were dismissedEach party was ordered to bear its own costs. |
| Ratio Decidendi & Case Authority |
Full Case Details
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal arises out of final judgment and order dated 07.05.2018passed by the High Court1
in Regular Second Appeal No.457 of 2002 and raises questions regarding scope and applicability
of Section 22 of the HinduSuccession Act, 1956 (hereinafter referred to as the Act), and
particularly,whether preferential right given to an heir of a Hindu under said Section 22will be
inapplicable if the property in question is an agricultural land.
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 ofLajpat 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 bein separate enjoyment of certain specified
pieces of land. Since NathuRam was not interested in continuing with said arrangement he gave
a legal notice to Santokh Singh and later executed a registered sale deedon 19.08.1991 in respect
of his interest in the lands in favour of oneBabu Ram4 S/o Kanshi Ram.
(b) Soon thereafter, Civil Suit No.194 of 1991 was filed by SantokhSinghin 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 favourofDefendant 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 theCourt of District Judge,
Hamirpur, which appeal was partly allowed.The Appellate Court placed reliance on the decisions
reported in AIR2000 Madras 516 and AIR 1988 Orissa 285 and held that the Plaintiffhad a
preferential right under Section 22 of the Act to acquire the suitland measuring 19 kanals half of
the entire land entered in KhataNo.25 min, Khatoni No.29 min, Khasra No.1119 measuring 38
kanals1 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 DefendantNo.1 in favour of Defendant No.2 to be illegal, null and void and hitby the
provisions of Section 22 of the Act. It directed Defendant No.2to 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 filingRegular 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?”
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(e) Relying principally on the decision of the Division Bench of the HighCourt in RSA No.258 of
2012 (Roshan Lal vs. Pritam Singh and others, R.S.A.No. 258 of 2012 decided on 1.3.2018), 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 ofSection 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 ofRespondent No.1 – Plaintiff. With the assistance of the learned Counselwe
have considered all the relevant decisions on the point.
5. On a reference made under Section 213 of the Government of IndiaAct, 1935 (hereinafter
referred to as ‘1935 Act’), the following questions were considered by the Federal Court “In the
matter of the Hindu Women’s Right To Property Act, 1937” ( (1941) 3 FCR 12 = AIR 1941 FC
72) :
“(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?
(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 greatgrandsons 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:
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“..….(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 theFederal Court underwent
significant changes when the Constitution of Indiawas adopted. The following Tabular Chart
would show the distinctionbetween the concerned entries:
Seventh Schedule
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
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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). (Refer sections 4 and 22 of the
Hindu Succession Act, 1956).
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 466by the High Court ofOrissa.
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 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.”
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9. Before Full Bench of Punjab High Court in Amar Singh and Ors. v..Baldev Singh and Ors.8
challenge was raised in the context of rights of aHindu female under Section 14 of the Act. It was
held inter alia that Section14 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 inJaswant and
ors. v.. Smt. Basanti Devi AIR 1960 Punjab 666 9 1970 PLJ 587 = 1970 Punjab Law Reporter
Vol. 72 page No.958took 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 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. PremaDevi vs.Joint Director of
Consolidation (Head quarter) at Gorakhpur Camp andOrs.AIR 1970 Allahabad 238 held:
“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
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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 divergentviews in the matter. Some
High Courts have held that the provisions ofSection 22 of the Act would apply to agricultural
lands and in the processhave followed the reasoning that weighed with the Orissa High Court
inLaxmi Debi. On the other hand, some High Courts have held to thecontraryand have followed
the decisions of the Punjab High Court inJaswant and of the Allahabad High Court in Prema
Devi. It is the latterline of cases which is relied upon by the learned counsel for the appellant
insupport of his submissions. It must also be stated that wherever there wasquestion of
succession to tenancy rights in respect of agricultural holdings,reference was made by some of
the High Courts viz. the High Court ofBombay in Tukaram Genba Jadhav and Ors. vs. Laxman
GenbaJadhavand Anr.11 to the effect of the then existing provision under Section 4(2) ofthe Act.
We are not going into the reasoning that weighed with various HighCourts in every case, but
suffice it to say that the following chart mayindicate 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) )
PremaDevi 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. KhatiDibya and Ors. (AIR 1974 Orissa 70)
Jeewanram vs.Lichmadevi andAnr (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)
SubramaniyaGounder&Ors. vs. EaswaraGounder (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 thepresent matter arises, the
Division Bench of the High Court in Roshan Lal(deceased) through his LRs. vs. Pritam Singh
and ors.5 had considered allrelevant decisions on the point and concluded that the provisions of
Section22 of the Act would apply in relation to succession to agricultural lands. Theconclusion
arrived at in the leading judgment with which the other learnedJudge 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
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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 HighCourt in the present matter.
13. In the aforesaid background, we are called upon to decide theapplicability of Section 22 of the
Act in respect of agricultural lands. Beforewe consider the issues in question, we must refer to
the decision of thisCourt in Vaijanath and ors. vs. Guramma and anr.12. In that case
matterspertaining to intestacy and succession relating to joint family propertyincluding
agricultural land, were dealt with by a State law which hadreceived 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 aninterpretation
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, Entry21 of List II of 1935
Act had inter alia dealt with “transfer, alienation anddevolution of agricultural land”. It was in
the exclusive domain of theprovincial legislatures. The idea that the provincial legislatures were
aloneentitled to deal with matters relating to “transfer, alienation and devolutionof agricultural
land” was again made clear in Entry 7 of List III byexpression “…succession, save as regards
agricultural land” whichdealtwith concurrent powers. The provincial legislature had thus
exclusivecompetence with regard to transfer, alienation and devolution of agriculturalland. In the
circumstances, the Federal Court had answered the firstquestion that the provisions of Hindu
Women’s Rights to Property Act, 1937and Hindu Women’s Property (Amendment) Act, 1938
would not regulatesuccession to agricultural lands in the provinces.
15. But the situation underwent considerable change after the Constitutionof India was adopted.
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(i) The subjects “Transfer, alienation of agricultural land” areretained in the State List in the form
of Entry 18 but thesubject “devolution” was taken out.
(ii) As against earlier Entry 7 of List III where the subject,“succession” came with express
qualification, “…save asregards agricultural land”, that qualification is nowconspicuously absent
in comparable Entry 5 in the present ListIII. The expression in Entry 5 today is “…intestacy
andsuccession”.
The changes indicated above as against what was earlieravailable in Entry 21 of List II and Entry
7 of List III make theposition very clear. The present Entry 5 of List III shows“succession” in its
fullest sense to be a topic in the ConcurrentList. The concept of succession will take within its
foldtestamentary 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, thecompetence 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 lawapplicable to the person upon whose death the succession is toopen,
both the Union as well as State legislatures arecompetent to deal with the topic. Consequently,
going by theprinciples of Article 254 of the Constitution of India the matterwill have to be dealt
with.
16. In the present case it is nobody’s case that the matter relating tosuccession to an interest in
agricultural lands is in any way dealt with by anyState legislation operating in the State of
Himachal Pradesh or that suchlegislation must prevail in accordance with the principles under
Article 254of the Constitution of India. The field is occupied only by Section 22 of theAct
insofar as State of Himachal Pradesh is concerned. The High Court was,therefore, absolutely
right in holding that Section 22 of the Act wouldoperate in respect of succession to agricultural
lands in the State.
17. Though, succession to an agricultural land is otherwise dealt withunder Section 22 of the Act,
the provisions of Section 4(2) of the Act, beforeits omission, had made it clear that the provisions
of the Act would not applyin cases inter alia of devolution of tenancy rights in respect of
agriculturalholdings. Thus, the effect of Section 4(2) of the Act before its deletion wasquite clear
that, though the general field of succession including in respect ofagricultural lands was dealt
with under Section 22 of the Act, insofar as
devolution of tenancy rights with respect to agricultural holdings wereconcerned, the provisions
of Section 22 would be inapplicable. The HighCourt of Bombay was, therefore, absolutely right
in its conclusion.
However, with the deletion of Section 4(2) of the Act, now there is noexception to the
applicability of Section 22 of the Act. But we are not calledupon to consider that facet of the
matter.
18. We now turn to the next stage of discussion. Even if it be acceptedthat the provisions of
Section 22 would apply in respect of succession toagricultural lands, the question still remains
whether the preferential rightcould be enjoyed by one or more of the heirs. Would that part also
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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 22would 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 wishedto 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 theState 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
ofSection 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 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 aHindu 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
inCivil Appeal No.86 of 1994. In the end, we must also declare that various decisions of the
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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.
