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Rajasthan High Court · body

1963 DIGILAW 94 (RAJ)

Prahlad v. Hukma

1963-04-26

GAJENDRA SINGH, R.N.MADHOK

body1963
The appellant has filed the second appeal against the judgment and decree of the Additional Commissioner, Jaipur dated the 30th September, 1959. Briefly the facts of the case are that one Bhoora filed a suit for division of certain holdings against the respondents before the Assistant Collector, Jaipur. He claimed half share in the property. During the pendency of the suit Bhoora died in December, 1954 and the present appellant Shri Prahlad was brought on record as his legal representative. The trial Court dismissed the appellants suit on the ground that he was not the rightful heir of Bhoora under the Jaipur Tenancy Act and as Bhoora was a co-tenant of the holding and died heirless his right vested by survivorship in other co-tenants. The appellant unsuccessfully filed an appeal before the first appellate Court. The first contention of the counsel for the appellant was that both the subordinate courts wrongly held that the Khatedari interest of Bhoora deceased devolved in accordance with sec. 17 of the Jaipur Tenancy Act. He pleaded that the aforesaid Act was no longer a good law on the enforcement of the constitution of India in January, 1950. By Art. 254 all restrictions imposed on the transfer of the property were removed by the Constitution and the Indian Succession Act governed the succession to the agricultural holdings on Bhooras death. The provisions of Jaipur Tenancy Act being inconsistent with the provisions of the Indian Succession Act a reference could be made to the High Court on this important point of law as to which law would prevail. Under the Indian Succession Act which also applied to the devolution of agricultural tenancies Prahlad was a proper heir to Bhoora deceased both by way of intestate succession as well as by will of which he obtained. The second contention of the counsel for the appellant was that the appellant Prahlad was a proper heir to Bhoora deceased under sec. 8 of the Hindu Succession Act, 1956 which applied retrospectively and governed succession of Bhooras heir, although he died sometime before the enforcement of that Act. The second contention of the counsel for the appellant was that the appellant Prahlad was a proper heir to Bhoora deceased under sec. 8 of the Hindu Succession Act, 1956 which applied retrospectively and governed succession of Bhooras heir, although he died sometime before the enforcement of that Act. In support the counsel cited AIR 1957 Orissa page 1, AIR 1951 Patna, page 503 and AIR 1953 Calcutta page 571, wherein it has been held that like other sections of the same Act the "words person dying intestate after the commencement of the Act" are significantly missing in Sec. 8 of that Act. The aforesaid section only declares the status of the person dying and does not give the time of his death and could be applied retrospectively. The counsel for the respondent repelled argument by saying that the Indian Succession Act never applied to agricultural tenancies. It was an Act made under the Govt. of India Act and the central legislature had no power to legislate for tenancy matters for the State. Similarly after the enforcement of the Constitution of India no doubt in List III of concurrent subject entry No. 5 relating, to wills intestacy and succession gives wide powers to the Union to legislate and the Hindu Succession Act on the face of it would apply and govern succession to agricultural tenancies. But sec. 4(2) of the Hindu Succession Act specifically excluded the operation of that Act to agricultural tenancies and therefore the Jaipur Tenancy Act which remained unrepealed when Bhoora died governed succession to agricultural tenancy and not any other law. In support he cited 1961 RLW. Revenue Supplement page 40 wherein the High Court of Rajasthan (?) has held that Hindu Succession Act does not apply to agricultural tenancies and the succession to tenancy is governed by personal laws under sec. 40 of the Rajasthan Tenancy Act. We have considered the arguments advanced by both sides on this important point of law. The question before us is whether the devolution of tenancy in the present case was governed by sec. 17 of the Jaipur Tenancy Act or by the Hindu Succession Act or the Indian Succession Act. It is an admitted fact that when Bhoora died in 1954 the Jaipur Tenancy Act was in force and the Rajasthan Tenancy Act only came into operation in October, 1955, when the Jaipur Tenancy Act was repealed. 17 of the Jaipur Tenancy Act or by the Hindu Succession Act or the Indian Succession Act. It is an admitted fact that when Bhoora died in 1954 the Jaipur Tenancy Act was in force and the Rajasthan Tenancy Act only came into operation in October, 1955, when the Jaipur Tenancy Act was repealed. It clearly, follows that devolution to a tenancy vacated by Bhoora was not governed by Rajasthan Tenancy Act. Before the Constitution of India came into force, the Indian Succession Act did not govern succession to agricultural tenancies. No positive law has been cited by the counsel for the appellant in support of this contention. After the commencement of the Indian Constitution the Indian Succession Act was never amended to govern the succession in the States in relation to agricultural tenancies and as such clearly it did not apply. Before the commencement of the Constitution it could not have applied because agricultural tenancy was a State subject and the Government of India Act of 1935 clearly excluded the power of legislation of the Central Government with regard to wills intestacy and succession to agricultural tenancies. Now the question before us is whether the provisions of Hindu Succession Act would apply to this case. In this connection it is clear that no doubt that the Parliament has passed the Hindu Succession Act in exercise of their power under the concurrent List III Entry No 5 and provided a common law of succession for Hindus all over the country, but the Parliament in passing the Hindu Succession Act made a clear provision in sec. 4(2) of the aforesaid Act by excluding the operation of the Act to the devolution of agricultural tenancies in the following words:– 4. (2) For the removal of doubts it is hereby declared that nothing contained in this Act should be declared to affect the provisions 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. Sec. 8 of the Hindu Succession Act governing succession will not apply to agricultural tenancies as a result of provision under sec. 4 (2) of the Act. The Rajasthan High Court (?) in 1961 R.L.W. Revenue Supplement page 42 as cited by the counsel for the respondent further clarifies the matter. Sec. 8 of the Hindu Succession Act governing succession will not apply to agricultural tenancies as a result of provision under sec. 4 (2) of the Act. The Rajasthan High Court (?) in 1961 R.L.W. Revenue Supplement page 42 as cited by the counsel for the respondent further clarifies the matter. In this case it was held that the provisions of Hindu Succession Act will not apply to the case of devolution of agricultural tenancies, but under sec. 40 of the Rajasthan Tenancy Act the personal Hindu Law would govern such succession. The counsel for the appellant who cited a number of authorities in support of his contention that Hindu Succession Act would govern the cases of devolution of agricultural tenancies with retrospective effect has misrepresented the matter before the Court. A.I.R. 1957 Orissa page 1 is only an authority for sayiny that in List No. III of concurrent subjects in the seventh schedule of Constitution item No. 5 has been so worded by omission of the phrase "save as regard agricultural land" found in the schedule 7 of the Government of India Act, 1935 so as to confer wide powers on the Parliament to legislate on subjects of wills, intestacy and succession and to provide a uniform personal law for Hindus, throughout India. On this basis their Lordships thought that by this change in law, the Act would apply to agricultural lands also. There is no mention in this ruling that Hindu Succession Act applies to agricultural tenancies. Similarly the other rulings, AIR 1958 Patna page 503, AIR 1957 Cal., page 5 do not support the proposition of law that Hindu Succession Act regulates the devolution of agricultural tenancies. Further they are no authority for saying that sec. 8 applies retrospectively., It is clearly laid down in these rulings that in the case of a person dying intestate, under sec. 8 of the Hindu Succession Act, the section only declares the status of a person dying and it has no reference to the date of his death. These rulings very clearly state that sec. 8 of the Hindu Succession Act cannot be given retrospective effect. It is, therefore, abundantly clear that when Bhoora died in 1954 the question of application of sec. 8 of the Hindu Succession Act did not arise nor sec. These rulings very clearly state that sec. 8 of the Hindu Succession Act cannot be given retrospective effect. It is, therefore, abundantly clear that when Bhoora died in 1954 the question of application of sec. 8 of the Hindu Succession Act did not arise nor sec. 8 applied retrospectively, and finally even after the enforcement of the Hindu Succession Act in 1956 it did not govern cases of devolution of agricultural tenancies. The law as laid down in sec. 17 of the Jaipur Tenancy Act governed the succession of deceased Bhoora. We also accept the concurrent findings of the two courts below., that Prahlad the present appellant did not belong to any of the categories of heirs of Bhoora as laid down in sec. 17 of the Act. The findings of fact of the two Courts go further and say that Prahlad was not Bhooras brothers son but he was the son of another person and therefore he could not succeed as the Bhooras brothers son. No case has been made out by the counsel for the appellant to enable us to disturb the concurrent finding of facts by the two Courts below. Consequently, under sec. 19 of the Jaipur Tenancy Act the remaining co-tenants will succeed to the Khatedari rights of the deceased co-tenant Bhoora by survivorship as found by the two Courts below. For the reasons stated above, there is no force in the contentions of the counsel for the appellant and this appeal must fail.