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1966 DIGILAW 3 (RAJ)

Bhonra v. Ganesh

1966-01-13

BALWANT SINGH, G.B.K.HOOJA, GAJENDRA SINGH, MADHOK, S.D.UJWAL

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This case has been referred to the Full Bench by the Division Bench consisting of Sarvshri Gajendra Singh and R. N. Madhok, by their order dated 14.2.1964. The learned Members were hearing two appeals No. 40 and 41 filed by Bhonra, Nanda, Chhottu and others appellants against the decree and judgment of the Additional Commissioner, Jaipur dated 16.11.1959. Both parties had filed cross suits relating to the same piece of land consisting of 13 bighas and 7 biswas, Bhonra and others sought declaration of their Khatedari rights over the suit land while Ganesh and Govinda claimed possession of the suit land on the ground that they were tenants, but were wrongfully dispossessd by Bhonria. The trial Court decreed Bhonrias suit and dismissed that of Ganesh and Govinda. In appeal this judgment was reversed by the Additional Commissioner,who decreed Govindas suit for possession and dismissed Bhonrias declaratory suit. It was against that judgment that Bhonria filed these two appeals on the 14th of December, 1959. During the pendency of these (Bhonrias) appeals, Ganesh, one of the respondents died on 7.2.1961 leaving behind him widow Kalyani, a son Govinda, who was already respondent on record and a daughter Birdhi and a daughters son, Jagdish. At the time of the arguments, the counsel for the respondent raised a preliminary objection that as all Ganeshs heirs, under the Hindu Law were not made parties to these appeals, Bhonrias appeal abated in toto. The counsel for the respondent further urged that Ganeshs heirs under the Hindu Succession Act were necessary party whereas the counsel for the appellants reply was that the Hindu Succession Act did not apply to the devolution of agricultural tenancy in accordance with the decision of the Board in Tej Singh vs. Prabhu, reported in R.R.D. 1960, page 169 and unless that decision was reversed that Division Bench could only refer the case to the Full Bench and not take a decision contrary to the previous one. The learned Members of the Bench, therefore, examined the case fully and came to the conclusion that there were conflicting opinions of the Board of Revenue on the question, whether the Hindu Succession Act applied to the devolution of agricultural tenancy, within the meaning of sec. The learned Members of the Bench, therefore, examined the case fully and came to the conclusion that there were conflicting opinions of the Board of Revenue on the question, whether the Hindu Succession Act applied to the devolution of agricultural tenancy, within the meaning of sec. 40 of the Rajasthan Tenancy Act or not and therefore referred the matter to this larger Bench in the following words: "Whether the personal law of a tenant dying intestate under sec. 40 of the Rajasthan Tenancy Act would mean the Hindu Law as it stood prior to the enforcement of the Hindu Succession Act, 1958 or it would mean the Hindu Law as modified by the Hindu Succession Act, 1956." It was the contention of Shri S. N. Pareek, counsel for the appellant that under the Constitution, a State alone was competent to legislate for land tenures. After the Jaipur Tenancy Act was repealed by the Rajasthan Tenancy Act, 1955, the only law applicable for the devolution of tenancy was the Ordinary Hindu law and not the Hindu Succession Act, 1956, which was an enactment of the Central Government. Shri R.C. Sogani appearing on behalf of the respondents replied that personal law of Hindus where both parties are Hindus means the Hindu Law as given in the scriptures and modified from time to time by custom and statutes. Since the customary Hindu Law of Succession had been modified by a special enactment known as the Hindu Succession Act, 1956, that law alone would govern the devolution of agricultural tenancies. The Union Government which enacted the Hindu Succession Act was competent to provide for all matters of succession under the concurrent list No. 3 of the Constitution. There being no special law under sec. 40 of the Rajasthan Act within the meaning of sec. 14 of the Hindu Succession Act, the Hindu Succession Act would apply to this case in full vigour. On the facts and circumstances of this case, the succession to tenancy arose in pending case when Ganesh died on 7.2.1961. It is admitted by both sides that under sec. 40 of the Rajasthan Tenancy Act, the devolution of tenancy would take place in accordance with the personal law of the tenant dying intestate. On the facts and circumstances of this case, the succession to tenancy arose in pending case when Ganesh died on 7.2.1961. It is admitted by both sides that under sec. 40 of the Rajasthan Tenancy Act, the devolution of tenancy would take place in accordance with the personal law of the tenant dying intestate. The answer to the reference made to this Bench, therefore, depends upon the interpretation of the words "personal law." There is no doubt that the Hindu Law of Succession is the personal law of the parties. The only question that remains to be decided is whether the Hindu Law as it stood prior to the enforcement of Hindu Succession Act should apply to this case or those provisions of the Hindu Succession Act should apply which have greatly modified the previous Hindu Succession Law. In other words, the question for determination before this Full Bench is whether the Hindu Succession Act, 1956, would govern succession as the personal law of the Hindus in matters of devolution of agricultural tenancies of not. The first contention of the counsel for the appellant was that the Union Government was not competent to legislate for tenancy matters in the States, the legislative competence of which rested entirely with them. In support he cited item 18 of the list 2 of the VII Schedule of the Constitution which runs as follows: "18. Land, that is to say, rights in or overland, land tenures including this relation of land-lord and tenant, and the collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans, colonization." To this contention, the counsel for the respondents Shri R. C. Sognanis reply was, that List III of the VII Schedule of the Constitution item No. 5 provides for legislation on intestacy and succession. This was a concurrent list in which both the Union and the State can legislate, but the Union legislation would prevail to the extent of the repugnancy of the State Law on the subject. From the provision contained in the IInd list referred to above, in the VII Schedule of the Constitution it is clear that State can legislate under item No. 18 of the List 2 on land matters, that is governing the relation of landlords and tenants etc. But the State has no exclusive right to legislate on the question of succession of agricultural land. But the State has no exclusive right to legislate on the question of succession of agricultural land. It is for this reason that both, the State as well as the Union Government have been given concurrent powers to legislate on the subjects contained in List III of the VII Schedule item 5 in point before us, in a case of succession to agricultural tenancy in which both the Union and the State Government can legislate, but this legislation is subject to the provisions contained in Art. 254 of the Constitution which clearly lays down the principle that a State law after the coming into force of the law of the Parliament would be void to the extent of the provisions contained therein. In this case it is frankly conceded by the counsel for the appellant that the Rajasthan Tenancy Act provides no law for succession to agricultural tenancy. The Jaipur Tenancy Act which provided for the law of succession and to which region this case relates stands duly repealed by the Rajasthan Tenancy Act and therefore, the law of succession to tenancy in the present case would have to be governed by the law of the Parliament which is the Hindu Succession Act. Thus there is no force in the arguments advanced by the counsel for the appellant Shri S. N. Pareek that the State could alone legislate on succession to tenancies and not the Union Government. Some rulings have been cited by the learned counsel from both sides with regard to the competency of the State to legislate for succession to agricultural tenancies. The position about the legislative competence with regard to succession matter as far as the statutes are concerned, is amply clear. Before the Constitution of India came into force, the Government of India Act, 1935 governed the legislative competence of the Federal Govt. as well as the Constituent States. The position about the legislative competence with regard to succession matter as far as the statutes are concerned, is amply clear. Before the Constitution of India came into force, the Government of India Act, 1935 governed the legislative competence of the Federal Govt. as well as the Constituent States. In VII Schedule of the Government of India Act, 1935 the subject of succession appears in the concurrent list No. 3 as item No. 7 which is in the following terms— "Will, intestacy and succession save as regards agricultural lands." Now under the present Constitution of India item No. 5 of the 7th Schedule 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 under Item No. 5 of the concurrent list and in order to have a uniform personal law of succession all over the Country, can legislate for the entire land and accordingly by dropping the words "save as regards agricultural lands" from the Federal list, enlarged the scope of legislation in the present Constitution. Under item No. 5 therefore, in view of the change in law the Union Govt. has power to legislate for agricultural lands also. For this proposition of law the counsel for the appellant Shri S. N. Pareek, himself cited two rulings, Laxmi Devi vs. Surendra Kumar, AIR 1957 Orissa page 1 and Mst. Lukai vs. Mirajan, AIR 1958 Mad., page 168, a Full Bench case. In the Orissa case it was clearly held that the Hindu Succession Act applied to agricultural land. In both these cases the reversioners right vis-a-vis the widows right for the full estate were under consideration and both the High Courts came to the definite conclusion that the Hindu Succession Act would apply with full vigour to the agricultural lands as well. Shri R.C. Sogani on behalf of the respondent in supporting the proposition that the Hindu Succession Act, applied to agricultural land and that under the concurrent list, the Union Government has power to make laws also cited a number of rulings. At first, he cited, Khairabar Tea Co. vs. The State of Assam reported in 1964 Supreme Court, page 925. Shri R.C. Sogani on behalf of the respondent in supporting the proposition that the Hindu Succession Act, applied to agricultural land and that under the concurrent list, the Union Government has power to make laws also cited a number of rulings. At first, he cited, Khairabar Tea Co. vs. The State of Assam reported in 1964 Supreme Court, page 925. In this ruling the Supreme Court considered the competence of the State to legislate for taxation matters and it came to the conclusion that under the VIIth Schedule of the Constitution all legislative powers for the State as well as for the Union have been defined in List I and List II in which they have exclusive jurisdiction respectively. List III provides for concurrent power to legislate for both the State as well as the Union for the subjects mentioned therein. It also lays down that the powers of the State to legislate should be considered with full implications in the first instance and so limitation should be put. In Gopichand vs. Bhawani Devi AIR 1964 Punjab, 272, the validity of the Delhi Land Reforms Act, 1954 came up for consideration. That Act provided the mode of succession of the Bhomidars who were the proprietors of the land. The Punjab High Court, struck down these provisions as ultra vires, which related to the succession to the Bhomidars on agricultural land on the ground that these provisions were inconsistent with the provision contained for succession to the property under the Hindu Succession Act. An argument during the course of hearing was advanced that the Delhi Land Reforms Act, 1954, only provided the mode of succession to agricultural tenancy of the Bhomidars and it was saved by sec. 4, sub-sec. (2) of the Hindu Succession Act. The Court gave a finding that the Bhomidars right were not tenancy rights and therefore the provision made for succession to Bhomidars was not saved from the operation of the Hindu Succession Act. Another case of the Punjab High Court of 1964 at page 304 was also cited, but this case does not apply to the present facts as it is a case under Premises Eviction Act only. The counsel cited three other cases of the Punjab High Court. First was Mst. Another case of the Punjab High Court of 1964 at page 304 was also cited, but this case does not apply to the present facts as it is a case under Premises Eviction Act only. The counsel cited three other cases of the Punjab High Court. First was Mst. Taro vs. Darshan Singh reported in AIR 1960 Punjab page 662 wherein it was clearly laid down that succession to agricultural land is covered by item No. 5 in list 3 of the VII Schedule of the Constitution of India. The Hindu Succession Act regulates succession to the property of Hidus and as such it was enacted by the Parliament under entry 5 List III and is not ultra vires regarding agricultural land. The other case was Sant Ram vs. Gurudee in the same report at page 145 wherein it has been laid down by their Lordships that by virtue of sub-sec. (2) of sec. 4 of the Hindu Succession Act Punjab Agricultural custom, so fas as it was applicable to Hindus, is no longer in force so far as the matters of succession etc. are concerned, which are now governed by the provisions of the Hindu Succession Act, Again in the case of Amar Singh vs. Baldeosingh in the same report at p. 666, one Ballasingh died and his widow Asu came in possession of his land. On 10.3.1958 she made a gift in favour of Baldeosingh and others. The plaintiffs as co-laterals of Ballasingh attempted to impugn the gift on the ground that the widow had a limited estate in the land and under the customs she could not alienate the same to the injury of the reversionary interest, the land being the ancestral property of Ballasingh. The High Court, held that after the Hindu Succession Act came into force it enlarged the interest of the female Hindu, who was in possession of the property and the Punjab Custom was not a good law. The Parliament had full powers to legislate on matters of succession contained in the concurrent list at Item No. 5. : The second contention of the counsel for the appellant was that the personal law as mentioned in sec. 40 of the Rajasthan Tenancy Act was the ordinary Hindu Law and not the Hindu Succession Act which was the law of the Parliament. No direct rulings have been cited in support of this contention. : The second contention of the counsel for the appellant was that the personal law as mentioned in sec. 40 of the Rajasthan Tenancy Act was the ordinary Hindu Law and not the Hindu Succession Act which was the law of the Parliament. No direct rulings have been cited in support of this contention. The reply given by the counsel for the respondent was, that Hindu Law of Sussession commonly, called the personal law or the general law of the land and would operate as modified by statutes from time to time. He, therefore, urged that in the present case the Hindu Law of Succession as incorporated in the Hindu Succession Act would apply. In support he cited the Article contributed by Shri L. P. Gurgia in the R.R.D. 1961 p.5. The question, therefore, for determination is whether Hindu Succession Act would govern the devolution of agricultural tenancies or not. In this matter some of the provisions of the Hindu Succession Act may be referred to with advantage. Sec. 2 of the Act no doubt applies to the Hindus, but at the same time under sub-sec. 3 of sec. 2 of the Hindu Succession Act it clearly lays down that the Act would not apply to the members of any Scheduled Tribe, unless the Union Government by Notification in the Official Gazette otherwise directs. This clearly means that the devolution of agricultural tenancy as far as the Scheduled Tribes are concerned would not be governed by the Hindu Succession Act. Sec. 4 of the Hindu Succession Act is very relevant to the disposal of the present case. Sub-sec. (2) of the aforesaid Section clearly declares by way of explanation and removal of doubts that the provisions of the Hindu Succession Act would not affect the provisions of any law for the time being in force, providing for prevention of fragmentation of agri-cultural holding Or for fixing of ceiling or for devolution of tenancy rights in respect of such holdings. We are concerned with the last of the laws, that is for the devolution of tenancy rights in respect of the holdings. If there is a local law which governs the devolution of tenancy rights, in respect of the holdings application of the Hindu Succession Act is expressly excluded. We are concerned with the last of the laws, that is for the devolution of tenancy rights in respect of the holdings. If there is a local law which governs the devolution of tenancy rights, in respect of the holdings application of the Hindu Succession Act is expressly excluded. The plain and natural meaning of this Section is that Hindu Succession Act would not govern the devolution of tenancy rights, where a law already exists with regard to this matter. In this connection we may refer with advantage to the views of the Board of Revenue, as cited in the order of reference by the learned Members, in the two cases in R.R.D. 1950 p. 130 Bhawani Singh vs. Heerasingh and RRD. 1960 p. 194 Bhagwan Sahai vs. Mangla. The Board is of the opinion that the Hindu Succession Act would govern devolution of tenancy rights. The first case of Bhawani Singh vs. Heerasingh was related to the old Bharatpur State and allowed transfer of biswedari estate in accordance with the Hindu Succession Act although the customary law or Vajibul Arj prohibited such alienation. In the second case of Bhagwan Sahay vs. Mangla, a daughter of the deceased tenant was considered as an heir under the Hindu Succession Act to tenancy rights. The other two rulings in which a different view was taken are R.R.D. 1960 p. 169 of Tejsingh vs. Prabhu and R.R.D. 1960 p. 100 Prahlad vs. Hukma. In the case of Tejsingh vs. Prabhu, a question arose whether a daughter of the deceased was a preferential heir, for devolution of tenancy rights or not. The learned Bench came to the conclusion that the father and widow of the deceased tenant excluded the daughters daughter and that the Hindu Succession Act did not apply to that case. It was also held in that same case that the personal law u/s 40 of the Rajas-than Tenancy Act means the Hindu Law as modified by the Hindu Succession Act. In that case reliance was placed on A.I.R. 1959 Bombay p. 78. The perusal of the above case of Sitabai vs. Kothulal and others would indicate that the provisions of the Hindu Succession Act were not made applicable to the devolution of tenancy in Madhya Pradesh because under sec. 151 of the Madhya Pradesh Land Revenue Code, 1954 the law provided, for the reversion of tenancy rights. The perusal of the above case of Sitabai vs. Kothulal and others would indicate that the provisions of the Hindu Succession Act were not made applicable to the devolution of tenancy in Madhya Pradesh because under sec. 151 of the Madhya Pradesh Land Revenue Code, 1954 the law provided, for the reversion of tenancy rights. Thus it was held that sec.4 sub-sec. (2) of the Hindu Succession Act saved that law and thus made the Hindu Succession Act inapplicable. The provisions of sec. 151 of the Madhya Pradesh Land Revenue Code were as follows: "Subject to his personal law, the interest of a land holder shall on his death pass by inheritance, survivorship or by bequest as the case may be." The provision u/s 40 of the Rajasthan Tenancy Act are similar. It only refers to the personal law and nothing more. This ruling is of doubtful validity whether under the Madhya Pradesh Land Revenue Code, the right of reversion was provided or not, which does not find place in the Hindu Succession Act, but in any case this ruling would not apply to Rajasthan as no such provision in the Revenue Act or Tenancy Act exist. It merely speaks of personal law. In the second ruling Prahlad versus Hukma the provisions of the Hindu Succession Act were not made applicable because when the succession to a tenancy arose, Jaipur Tenancy Act had not been repealed. It was for this reason it was held that the Hindu Succession Act would not apply to the devolution of agricultural Tenancy for the purpose of that case. The general observation made that Hindu Succession Act will not govern devolution of agricultural tenancy u/s 40 of the Rajasthan Tenancy Act was purely obiter and the Bench was not called upon to adjudicate on this matter. The ratio decidendi of the case was quite different. Thus from the foregoing discussion of the case it will appear that both the contentions raised by the counsel for the appellant do not find favour with us. The first contention, that the State alone had the power to legislate on matters of succession to tenancy, and the Union Government had no power to do so is clearly without basis. Thus from the foregoing discussion of the case it will appear that both the contentions raised by the counsel for the appellant do not find favour with us. The first contention, that the State alone had the power to legislate on matters of succession to tenancy, and the Union Government had no power to do so is clearly without basis. Under the present Constitution the power to legislate for succession matters is concurrent and is exercisable by both the State as well as the Union Government, but when the Union Government legislates then the local law would stand repealed to the extent of its repugnancy to the law of the Parliament. In case where no State law exists there is no doubt that in succession matters the law of the Parliament would prevail. Therefore, there is no doubt that the Hindu Succession Act in the absence of the local law governing devolution of tenancies would apply with full vigour in the State of Rajasthan. As regards the second contention of the counsel for the appellant we are clear in our mind that the personal Hindu Law of Succession is that law which is modified by statutes from time to time, and would govern succession to agricultural tenancies in the absence of the State Law. The Hindu Succession Act, 1956 itself in sec. 4 sub-sec. 2 had clarified that the provisions of that Act would not apply, if the State has already enacted a law governing devolution of tenancies in order to stop fragmentation of holdings and to enforce the law relating to ceilings on land. We, Therefore, answer the reference made by the Division Bench in the following terms: "That the personal law of a tenant dying intestate u/s 40 of the Rajasthan Tenancy Act would mean the Hindu Law as modified by the Hindu Succession Act, 1956." We, accordingly return this reference duly answered and send this case back to the Division Bench for the disposal of the appeal pending before them.