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2017 DIGILAW 2622 (ALL)

RAMAPATI SINGH v. SATYA NARAYAN SINGH

2017-11-13

ARUN TANDON, RAJIV JOSHI

body2017
JUDGMENT By the Court.—Hon. Single Judge while hearing present Second Appeal, found it difficult to agree with the law laid down by learned Single Judge in the case of Smt. Sursati Devi v. The Joint Director of Consolidation, Basti and others, 1982 All LJ 1473, and therefore framed the following questions of law to be answered by Division Bench of this Court : 1. Whether the Parliament with reference Entry 5 of List III (Concurrent List) could make laws applicable to protecting the interest of ‘infants’ and ‘minors’ in respect of transfer of properties other than agricultural land falling in Entry 6 of List III of the Seventh Schedule of the Constitution of India ? 2. Whether the provisions of (The) Hindu Minority and Guardianship Act, 1956 protecting minor’s interest in sale of property by a natural guardian, except with permission of the Court, the law made in reference to the subject falling in Entry 5 (List III), is repugnant to laws relating to transfer of property of agricultural lands under U.P. Zamindari and Abolition and Land Reforms Act enacted by the State Government with reference to the subject enumerated in Entry 18 of List II (State List) of the Seventh Schedule of the Constitution of India? 3. Whether there is any repugnancy in Section 8 (ii) of the Hindu Minority and Guardianship Act providing for permission of Court for sale of property of a minor by a guardian and the right to transfer the property under (The) UPZA&LR Act, 1950 enacted with reference to Entry 18 of List II (State List) of the Seventh Schedule of the Constitution of India ? 4. Whether the law laid down in Smt. Sursati Devi v. The Joint Director of Consolidation, Basti and others, 1982 All.J.L. 1473 is a good law? 2. The facts relevant for answering the questions so referred, are as under : This second appeal arises out of O.S. No. 18 of 1971 filed by Satya Narain Singh aged 10 years and Mallo Singh aged 7 years, both under the guardianship of their father Rampos Singh against Ramapatti Singh and others for cancellation of the sale-deed dated 31.1.1970 executed by Rampos Singh, defendant No. 4 in favour of defendant Nos. 1 to 3 as guardian of his minor sons, and for restoration of possession over the property subject-matter of the sale, in case it was found that the plaintiffs had been dispossessed. 3. The property in dispute consist of two bighas of land in plot No. 87 total areas of was of measuring two bigha eight biswa and six dhurs situated in village Khunda, Pergana Bhagwat District Mirzappur. The plaintiffs claimed that they were co-bhumidhar alongwith the defendant No. 5 and were entitled to possession of two bigha of land in the plot. The defendant No. 4 Rampos Singh executed a sale-deed of the share of his minor sons in favour of defendant Nos. 1 and 2 on 31.1.1970, without obtaining permission of the Court under Section 8 of the Hindu Minority and Guardianship Act, 1956. There was no legal necessity and that the sale-deed was executed without any benefit to them. It was also without consideration. 4. The defendant No. 1 to 3 alone contested the suit. They denied the right, interest and possession of the plaintiffs over the property and claimed that Shri Rampos Singh, defendant No. 4, the father of the plaintiffs had purchased the same land vide sale-deed dated 1..3.1966 from Mst. Sukhiya mother and guardian of her minor son Bechu without any permission from the Court. The plaintiffs had no right to file the suit. The sale-deed dated 31.1.1970, was executed by Rampos Singh as Manager of the joint hindu family property for legal necessity for the plaintiffs and that they had paid Rs. 8000/- towards sale consideration. 5. The trial Court dismissed the suit on the findings that the sale-deed was for valid consideration paid to plaintiffs’ father; the plaintiffs had purchased the disputed land from Bechu, a minor without any sanction under Section 8(2) of the U.P. Hindu Minority and Guardianship Act, 1956 and that the plaintiffs have enjoyed the sale consideration. The defendant Nos. 1 to 3 are in actual possession. On the question of sale-deed being ad for violation of under Section 8(2) of the Act, the Court did not record any opinion. The trial Court further held that it will not be proper to exercise discretion in favour of plaintiffs under Section 31 of the Specific Relief Act, 1963 to cancel the sale-deed. 6. Not being satisfied the plaintiff filed first appeal being Civil Appeal No. 65 of 1976. The trial Court further held that it will not be proper to exercise discretion in favour of plaintiffs under Section 31 of the Specific Relief Act, 1963 to cancel the sale-deed. 6. Not being satisfied the plaintiff filed first appeal being Civil Appeal No. 65 of 1976. It was allowed by the District Judge, Mirzapur on 5.5.1977. The appellate Court held that it was not necessary to decide the question whether the transaction of sale was for legal necessity, or for the benefit of the minors. The land in dispute was not joint hindu family property and the sale-deed was not executed by Sri Rampos, the father in the capacity as Karta of the joint hindu family. The plaintiffs were Bhumidhar. In view of sub-section (2) of Section 8 of the Act the natural guardian of the plaintiffs could not have transferred the land by sale without permission of the Court. Accordingly, the suit for cancellation of the sale-deed and ejectment was decreed. 7. The defendant to the suit has filed the present second appeal. Before learned Single Judge, it was contended on behalf of the appellant that in view of the judgment in Sursati Devi case (supra) specifically paragraph 32, the requirement of having permission from the District Judge under Section 8 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as Act of 1956) in the matter of sale of agricultural property would not be required. 8. For examining the question referred, we may at the very outset reproduce Section 8 of the Act of 1956, which reads as under : “8. Powers of natural guardian.— (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate; but the guardian can in no case bind the minor by a personal covenant. (2) The natural guardian shall not, without the previous permission of the Court,— (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or (b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or by any person claiming under him. (4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in the case of necessity or for an evident advantage to the minor. (5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under Section 29 of that Act, and in particular....” 9. It is also worthwhile to reproduce the law as has been laid down in the case of Sursati Devi (supra) especially in paragraph 18, 19, 21 and 24, which are as under: “18. The maxim ‘Generalia specialibus non derogant’ means that when there is a conflict between a general and special provision the latter shall prevail. The rule of construction which is relevant to the present enquiry, is expressed in the aforesaid maxim according to which general power shall yield to the specific power. When specified legislative field on the topic ‘ transfer of property other than agricultural land’ is enumerated in Entry 6 of List III, the general power to make laws concerning ‘infants and minors’ referred in Entry 5 should not be so construed as to nullify particular power conferred to legislate on specified topic by a subsequent entry in the same list, which specifically excludes agricultural land from the ambit of that legislative field enumerated therein. Thus by reading of former Entry 5 in a more restricted sense effect can be given to latter Entry 6 in its ordinary and natural meaning. 19. In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170 , similar question Cropped up for consideration before the Supreme Court and Das Gupta, J. In para 9 of the report observed: “The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives directions to one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards those while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, (1859-53 ER 1032) quoted in Craies on Statute Law at p. 206, 6th Edition) Romily, M.R. Mentioned in rule thus : “The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.” It was further observed that : “Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applied only to such cases which are not covered by the special provision, we must hold that Cl. 5 (a) has no application in a case where the special provisions of cl. 23 are applicable.” 21. In this view of the matter, Entry 6 in List III of the Seventh Sch. Providing field of legislation on the matter ‘regarding transfer of property other than agricultural land, deeds and documents cannot be treated to be merely a surplusage on the ground that the immediately preceding Entry 5 in List III provides general power to make laws by Parliament as well as by the State Legislature on the matters, amongst other, concerning infants and minors. The legislative field covered by Entry 5, which is in general terms, cannot be construed so as to include the legislative field enumerated in Entry 6 immediately following. The legislative field covered by Entry 5, which is in general terms, cannot be construed so as to include the legislative field enumerated in Entry 6 immediately following. It thus cannot be said that the Parliament on the strength of Entry 5 in List III can legislate on the matter in respect of transfer of property with regard to agricultural lands also by ignoring the prohibition specifically provided in Entry 6 of List III, according to which the legislative field on the subject ‘ transfer of property other than agricultural land’ alone is enumerated being topic of a Concurrent list. The Parliament, therefore, cannot legislate on the matter in respect of transfer of agricultural land about which State Legislature alone has got exclusive power to make laws as is provided in Entry 18 in List II. Parliament has got no power to legislate on the said subject as it does not fall within the legislative competence in any of the entries in List I or in List III in the Seventh Sch.” 24. It appears to be well-settled that where entries enumerate separate legislative fields, a general power ought not to be so construed as to make a nullity of a particular power conferred by separate entry in the same list. Thus, in my opinion the legislative field covered by Entry 6 of List III regarding ‘transfer of property’ cannot be construed to be covered by Entry 5 of List III. Parliament therefore cannot make laws regarding transfer of property belonging to ‘ infants and minors’ on the strength of Entry 5 of the Concurrent List. Legislative power on the subject, namely ‘ transfer of property’ is to be found in Entry 6 in List III which excludes ‘agricultural land’ from its ambit. Thus the Parliament cannot make laws on matters relating to transfer of agricultural land of minors and others, with reference to legislative power found in Entries 5 and 6 of List III in view of specific prohibition contained in Entry 6 of List III. The State legislature could also not make law regarding transfer of agricultural land with reference to Entries 5 and 6 of the Concurrent List III had there not been such power vested in it in Entry 18 of List II to legislate on the said topic. The State legislature could also not make law regarding transfer of agricultural land with reference to Entries 5 and 6 of the Concurrent List III had there not been such power vested in it in Entry 18 of List II to legislate on the said topic. The legislative power to make law on the said matter exclusively rests with the State Legislature in view of sub cl. (3) of Art. 246 of the Constitution and the Central legislature cannot rob that jurisdiction on the strength of Entries 5 and 6 of List III or Entry 97 of List I of Seventh Sch.” 10. The law so explained in the case of Sursati Devi (supra) with regard to the interpretation of Entry 18 List II read with Entry 6 of List III vis-a-vis Entry 5 of List III of the Seventh Schedule of the Constitution of India, was questioned on behalf of the counsel for respondents on the plea that in the case of Annamalai Pillai v. District Revenue Officer and others, (1993) 2 SCC 402 , the Apex Court itself has held that in the absence of permission under Section 8(2) (b) of the Hindu Minority and Guardianship Act, lease of agricultural land would be voidable at the instance of the minor and could be validly avoided from the date of lease deed itself. Learned Single Judge after considering the contentions raised on behalf of the parties, found it difficult to agree with the law laid down in the case of Sursati Devi (supra) and accordingly referred the aforesaid questions to be answered and examined by a Division Bench. Learned Single Judge in his opinion while making reference has referred to the judgment in the case of Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019 (Para 41); Vishwanathiah and company v. State of Karnataka, (1991) 3 SC 358 (Para 9) and India Cement v. State ofr Tamilnadu, (1990) 1 SCC 12 as well as Prof. Yashpal v. State of Chhatisgarh, (2005) SCC 420. 11. Sri B.K. Srivastava, Senior Advocate on behalf of the appellant would contend before us that the law laid down in the case of Smt. Sursati Devi (supra) explains the correct position with regard to interpretation of Entry 18 of List II when read side by side Entry 5 of List III of the Seventh Schedule. 11. Sri B.K. Srivastava, Senior Advocate on behalf of the appellant would contend before us that the law laid down in the case of Smt. Sursati Devi (supra) explains the correct position with regard to interpretation of Entry 18 of List II when read side by side Entry 5 of List III of the Seventh Schedule. He would contend that Entry 18 of List II is a specific entry dealing with agricultural land and therefore has to be given preference in respect of same subject vis-a-vis Entry 5 of List III of the Seventh Schedule. He would explain that the Hindu Minority and Guardianship Act would cover all other properties of a minor except agricultural land as the Parliament has no power to make law in matter of transfer of agricultural land even if it is the property of the minor in as much as the field in that regard is occupied by the law framed by State legislature in exercise of its legislative power under the Seventh Schedule. To be precise, Sri Srivastava would contend that Entry 5 of List III has to be read in a manner to exclude the property of the minor which may be covered by Entry 18 of List II. He would therefore contend that Section 8 of the Hindu Minority and Guardianship Act, 1956 would be applicable in respect of transfer of property belonging to the minor other than the agricultural land. So far as the property in the shape of agricultural land is concerned, transfer of the same would be regulated by law enforced under Entry 18 of List II of the Constitution of India. 12. He heavily relied upon the reasoning assigned in the case of Smt. Sursati Devi (supra) specifically paragraph 31 with regard to the specific Entry having preference over general entry. For the same proposition he also relied upon paragraph 31 of the judgment in the case of Prof. Yashpal and another v. State of Chhattisgarh and others, (2005) 5 SCC 420, which in turn has approved by the Apex Court in the case of Osmania University Teachers Association v. State of A.P., (1987) 4 SCC 671 . He would therefore submit that the questions as referred may be answered in negative and in favour of the appellant. 13. Sri Amresh Singh is present on behalf of the respondents to the appeal. He would therefore submit that the questions as referred may be answered in negative and in favour of the appellant. 13. Sri Amresh Singh is present on behalf of the respondents to the appeal. He reiterated what has been stated by the learned Single Judge in his reference order. He would plead that the questions be answered in affirmative and against the appellant. 14. We deem it fit to reproduce the relevant Entries of the Constitution which need examination by us. Entry 18 of List II of Seventh Schedule reads as under : “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; and improvement and agricultural loans; colonization.” Entry 5 and 6 of List III of the Constitution read as under : “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. 6. Transfer of property other than agricultural land;registration of deeds and documents.” 15. It is well-settled that in view of Article 245 of the Constitution of India, the power to legislate on a subject covered by any entry of List II is with the State Legislature while the power to legislate on the subject covered by any of the entries mentioned in List III is both with the Parliament as well as the State Legislature. But in case a law is framed by the Parliament, it shall have preference over the State legislature. We need not refer to case laws on the subject. 16. To put it simply it needs to be answered by us as to whether the parliament could frame law dealing with transfer of agriculture land holding in exercise of powers under Entry 5 of list 3, which provides for matters amongst us confine minors so as to ignore the prohibition specifically provided in Entry 6 of List 3 i.e. transfer of a property other than agricultural land. For the purpose Entry 18 of List 2 further clarifies that the competence to frame law in respect of agricultural land holding, including its transfer etc., is with the State Legislature only. 17. For the purpose Entry 18 of List 2 further clarifies that the competence to frame law in respect of agricultural land holding, including its transfer etc., is with the State Legislature only. 17. We may emphasis that in respect of such issues where subject in one list may touch upon the subject of another list of Seventh Schedule of the Constitution of India that the doctrine of pith and substance has been applied. For examining its true nature and character, for the purpose of determining whether it is legislation with respect to the matter in this list or that, in A.L.S.P.P.L. Subrahmanyan Chettiar v. Muttuswami Goundan, AIR 1941 FC 47, para 20, the Federal Court has held as under : “The Chief Justice, Gwyer speaking for the Court held that,however, carefully and precisely lists of legislative subjects are defined, it is practically impossible to ensure that they never overlap. Laying down the principle to be adopted in a case where subject in one list, touches also on a subject in another list, following was held: “It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its “pith and substance”, or its “true nature and character”, for the purpose of determining whether it is legislation with respect to matters in this list or in that : (1881) 7 AC 96; (1882) 7 AC 829; (1899) AC 580; 1930 AC 111; 1940 AC 513. In my opinion, this rule of interpretation is equally applicable to the Indian Constitution Act.... It is clear that the pith and substance of the Madras Act, whatever it maybe, cannot at any rate be said to be legislation with respect to negotiable instruments or promissory notes; and it seems to me quite immaterial that many, or even most, of the debts with which it deals are in practice evidenced by or based upon such instruments. That is an accidental circumstance which cannot affect the question. That is an accidental circumstance which cannot affect the question. Suppose that at some later date moneylenders were to adopt a different method of evidencing the debts of those to whom they lend money; how could the validity or invalidity of the Act vary with moneylenders’ practice? I am of opinion therefore that the Act cannot be challenged as invading the forbidden field of List I, for, it was not suggested that it dealt with any item in that List other than No. 28.” 18. In Kartar Singh v. State of Punjab, 1994 (3) SCC 569 , paragraph 59 and60 and 61, it has been held as under : “59....But before we do so we may briefly indicate the principles that are applied for construing the entries in the legislative lists. It has been laid down that the entries must not be construed in a narrow and pedantic sense and that widest amplitude must be given to the language of these entries. Sometimes the entries in different lists or the same list may be found to overlap or to be in direct conflict with each other. In that event it is the duty of the Court to find out its true intent and purpose and to examine the particular legislation in its ‘’pith and substance’ to determine whether it fits in one or other of the lists. [See : Synthetics and Chemicals Ltd. v. State of U.P.; India Cement Ltd. v. State of T.N.” 60. This doctrine of ‘’pith and substance’ is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.” 19. In Union of India and others v. M/s. Tata Tea Co. To say differently, incidental encroachment is not altogether forbidden.” 19. In Union of India and others v. M/s. Tata Tea Co. Ltd. and another, (Civil Appeal No. 9178 of 2012, decided on 20th September, 2017, the doctrine of pith and substance has been explained in paragraph 23, as under : The doctrine of “pith and substance” means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature which enacted it, it cannot be held to be invalid, merely because it incidentally encroaches on matters assigned to another legislature. When a law is impugned as being ultra vires of the legislative competence, what is required to be ascertained is the true character of the legislation. If on such an examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the enactment, the entire Act, its object, scope and effect, is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of “pith and substance” has to be applied not only in cases of conflict between the powers of two legislatures but in any case where the question arises whether a legislation is covered by particular legislative power in exercise of which it is purported to be made.” 20. In the aforesaid background we find that the Hindu Minority and Guardianship Act, 1956 has been framed by the parliament in order to protect the interest of infant and minors including that in respect of transfer of their properties amongst other. The pith and substance provision is for looking after the interest of the minor till he attains the majority and to protect his property during the term he continues to be a minor. It is with reference to the aforesaid object that directly relative-able to Entry 5 of Lict 3 of Seventh Schedule. 21. Under the Hindu Minority and Guardianship Act, 1956 a prohibition has been enforced qua transfer of the property of the minor, which in our opinion include the agricultural land holding also without the permission of the Court. It is with reference to the aforesaid object that directly relative-able to Entry 5 of Lict 3 of Seventh Schedule. 21. Under the Hindu Minority and Guardianship Act, 1956 a prohibition has been enforced qua transfer of the property of the minor, which in our opinion include the agricultural land holding also without the permission of the Court. So far as the Entry 6 of List 3 is concerned, it specifically excludes agricultural land from the subject of the said list. However, this exclusion in our opinion will not in any way have the effect of taking away the right of the parliament to lay down the law for protecting the interest of the minor including his property. 22. In our opinion on examination of provisions of the Hindu Minority and Guardianship Act, 1956 we find that it is in pith and substance and act following within the Entry 5 of List 3 of Seventh Schedule. It may be touching upon a subject which can be said to be subject-matter of Entry 18 of List 2. 23. We further find that the exclusion of the agricultural land from Entry 6 of List 3 will not in any way lead to a conclusion that the Hindu Minority and Guardianship Act, 1956 or Section 8(2) of the same is beyond the competence of the parliament. In the words of the Apex Court as per the judgment in the case of Kartar Singh (supra) incidental encroachment is not altogether forbidden. 24. We are, therefore, of the opinion that question No. 1, 2 and 3 are answered in negative. With reference to the issue No. 4 it is held that the judgment in the case of Smt. Smt. Sursati Devi v. The Joint Director of Consolidation, Basti and others does not lay down the correct law.