Babu Ram v. Santokh Singh

87. Estate duty in respect of property other than agricultural land.

56. Duties in respect of succession to

88. Duties in respect of succession to 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 43-A. Estate duty in respect of

48. Estate duty in respect of 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

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 However, Section 4(2), as originally enacted has since then been omitted by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005).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:-

Section 22 of the Act is as under:-

8. The first case wherein scope of Section 22 was considered, was Sm. Laxmi Debi v. Surendra Kumar Panda and Others[7] by the High Court of Orissa. The submission that Section 22 of the Act would not cover AIR 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 Court[6] was also negated as under:-

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 Devi[9] took a different view while considering effect of Section 22 as regards agricultural lands. The discussion in that behalf was as under:-

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:- 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 Debi[7]. On the other hand, some High Courts have held to the contrary and have followed the decisions of the Punjab High Court in Jaswant[9] 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

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:-

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:-

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.