Ram Sarup Vs. Munshi & Ors 
INSC 246 (30 August 1962)
30/08/1962 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS MUDHOLKAR, J.R.
CITATION: 1963 AIR 553 1963 SCR (3) 858
CITATOR INFO :
D 1965 SC1049 (10) D 1967 SC 940 (10) D 1968
SC1205 (7) R 1970 SC 349 (3) R 1971 SC 89 (5,7) R 1975 SC 17 (32) R 1975 SC 733
(30) RF 1975 SC1835 (5) R 1979 SC 798 (8) F 1985 SC 111 (9) RF 1986 SC 859
(1,8,11) RF 1987 SC1140 (3) RF 1989 SC 222 (3) RF 1992 SC 207 (2)
Pre-emption-Constitutional validity of
enactment-Amending legislation providing that no decree should be passed for
pre-emption in certain cases-Retrospective operation of pending appeal-Punjab
Land Revenue Act, 1887 (Punjab 17 of 1887), s.3-Punjab Pre-emption Act, 1913
(Punjab 1 of 1913), as amended by Punjab Act 10 of 1960, ss.
3(a),3(4),3(6),6,14,15, 23, 31-Constitution
of India, Arts.
Appeal-Abatement-Decree for pre-emption
against vendees -Appeal by vendees-Death of one appellant pending appealLegal
representatives not brought on record-Maintainability of appeal.
The owner of certain agricultural land in
Punjab sold it to the second respondent by a deed dated December 12, 1957 The
son of the vendor claimed that he had a right of Pre.
emption and instituted a suit against the
appellant who purchased the land from the first respondent, and relied upon the
provisions in s.15 (a) of the Punjab Pre-emption Act, 1913. The appellant
pleaded (1) that the right of Preemption conferred by s. 15(a) of the Punjab
Pre-emption Act, 1913, had ceased to be enforceable on the repeal of the Punjab
Alienation of Land Act, 1900, by the Adaptation of Laws (Third Amendment )
Order, 1951, in view of ss.
3(a),3(4), 6,14,23 of the Pre-emption Act of
1913, and (2) that, in any case, s 15(a) of the Punjab Pre-emption Act, 1913,
was repugnant to Art. 19(1)(f) of the Constitution of India.
Held, that (1) the repeal of the Punjab
Alienation of Land Act, 1900, 'had no effect on the continued operation of the
Punjab Pre-emption Act, 1913, and that the expression ,,agricultural land"
in the later Act had to be read as if the definition of the Alienation of Land
Act had been bodily transposed into it.
Clark v. Bradlaugh,(1881)8 Q.B.D. 63, relied
859 (2) the effect of the repeal of the
Punjab Alienation of Land Act, 1900, was that the restrictions imposed by ss.
14 and 23 of the Punjab Pre-emption Act, 1913, would disappear, leaving the
court with an unfettered power to grant decrees to those who satisfied the
terms of s.15.
(3) the restriction on the right of free
alienation imposed by s. 15(a)being intended (i) to preserve the integrity of
the village and the village community, and (ii) to implement the agnatic rule
of succession, are reasonable and calculated to further the interest of the
general public. The provisions contained in s. 15(a) as it originally stood as
well as in the modified form after the amendment effected by Act 10 of 1960 do
not transgress the limits of reasonableness required by Art. 19(5) of the
Constitution and are valid, Bhau Ram v. Baij Nath, (1962) Supp. 3 S. C.R. 734
and Uttam Singh v. Kartar Singh & Others, A.I.R. 1954 Punjab 55, relied on.
In Civil Appeal No. 510 of 1961, the sale
which give rise to the suit was under a deed dated December 29, 1949, in favour
of the appellant and the first respondent's claim to preempt was based on s.
15(c)"thirdly" of the Punjab Preemption Act, 1913. The suit was
decreed by the trial court on November 8,1951 and when the matter was under
appeal in which the question of the constitutional validity of s.15(c)
"thirdly" was raised, the Act was amended by Punjab Act 10 of 1960,
by which, inter alia, (1)s.15 of the original Act was repealed and in its place
was substituted a new provision which omitted to confer a right of pre-emption
in the case of persons "owning land in the estate" as the original s.
15(c) thirdly" had done, and(2) retrospective effect was given to the
provisions contained in the Amending Act by the insertion of a new s. 31, which
provided that "no court shall pass a decree in a suit for pre-emption
whether instituted before or after the commencement of the Punjab Pre emption
(Amendment) Act, 1960, which is inconsistent with the provisions of the said Act."
Held, (1) the restriction on the right of a vendor in cases arising out of s.19
(c)"thirdly" of the Punjab Pre-emption Act 1913, was a reasonable one
and that the provisions in the section were not repugnant to Art. 19(1)(f) of
Bhau Ram v. Baij Nath & Others. (1962)
Supp. 3 S.C.R. 724 followed.
860 (2) the language used in s, 31 was
comprehensive enough so as to require an appellate court to give effect to the
substantive provisions of the amending Act whether the appeal before it was one
against a decree granting preemption or one refusing that relief. Consequently)
in view of S. 31, the decree for preemption passed by the trial court could not
Lachmeshwar Prasad Shukul v. Keshwar Lal
Chaudhuri,  F.C.R. 84, relied on.
Ram Lal v. Raja Ram, (1960) 62 P.L.R. 291
In Civil Appeal No. 214 of 1961, the
properties in respect of which respondents 1 to 4 bad instituted a suit
claiming a right of preemption had been sold to the appellants by a deed dated
April 25, 1957, for a consideration of Rs.
22,750, out of which appellants 1 and 2 had
paid one half amounting to Rs. 11,375, while the other three appellants had
paid the other half. The recitals showed that it was not a case of sale of
separated items of the properties in favour of the two sets of the vendees but
that they were to be enjoyed by them in equal shares. A decree for preemption
was passed against the vendees who took the matter on appeal. While the appeal
was pending the first appellant died but no application was made to bring on
record his legal representatives.
Held. that the appeal must be dismissed as
having abated on the death of the first appellant without legal representatives
being brought on record.
Where a decree is a joint one and a part of
the decree has become final by reason of abatement, the entire appeal must be
held to be abated.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 139, 147, 214 and 510 of 1961.
Appeals by special leave from the judgment
and decrees dated October 8, 21. 28. 1959, and March 4,1959, of the Punjab High
Court in R. S. A. No. 473 of 1959, L.P.A. No. 332 of 1959, R.S.A. Nos. 921 of
1959 and 508 of 1953.
J. P. Goyal, for the appellant (in C. A. No.
139 of 1962).
861 Nanak Chand, for respondent No. 1. (in C.
A. No. 139 of 1962).
Hardyal Hardy and N. N. Keswani, for the
appellants (in C. A. No. 147 of 1961).
Dayal Swarup Mehra and K. R. Choudhuri, for
respondent No. 1 (in C. A. No. 147 of 1961).
Hardev Singh and Y. Kumar, for appellants
Nos. 2 to 5 'in C. A, No. 214 of 1961).
K. L. Gosain and M. L. Aggrawala, for
respondents Nos. 1 to 4 (in C. A. No. 214 of 1961).
P. S. Safeer, for the appellant (in C. A. No.
510 of 1961).
Achhru Ram and B. D. Jain, for the respondent
(in C. A. No. 510 of 1961).
1962. August 30. The Judgment of the Court
was delivered by AYYANGAR, J.These four appeals which have been filed pursuant
to special leave granted by this Court principally raise for consideration the
constitutional validity of s. 15 of the Punjab Preemption Act (Act 1 of 1913),
hereinafter referred to as the Act. The property involved in these appeals are
agricultural lands and in each one of them decrees have been passed in favour
of the preemptors whose claim to preempt was based on different sub-clauses of s.
15, and the vendees who are the appellants in
the several appeals challenge the constitutional validity of the law under
which the suits have been decreed.
One of the appeals-Civil Appeal No. 214 of
1961 however could be decided without considering the constitutional point
regarding the validity 862 of s. 15 of the Act and it would therefore be
convenient to dispose it of first. The facts giving rise to the appeal are
briefly as follows The 5th and 6th respondents before us owned certain
agricultural land in village Dugri which they sold to the appellants by a deed
dated April 25, 1957. Respondents 1 to 4 instituted a suit against the
appellants to which the vendors-respondents 5 & 6 were also impleaded as
co-defendants. The right of preemption was based on the plaintiffs being the
nearest collaterals of the vendors and heirs according to the rule of
succession. There were certain points of dispute on the facts but these are not
now material and it is sufficient to state that the suit was decreed by the Subordinate
Judge on December 10, 1958. This judgment in favour of respondents 1 to 4 was
affirmed by the District Judge on appeal and on further appeal, by the High
Court. It is from this judgment and decree of the High Court that the vendees
who are the appellants before us have brought the matter to this Court.
The appellants were five in number. They fell
into two groups constituted respectively by the 1st and 2nd appellants who are
brothers and by appellants 3, 4 and 5.
While the appeal was pending in this Court
the 1 at appellant Mehar Singh died on May 18, 1960, leaving a widow and five
children four daughters and a son, as his heirs.
No application was, however, made to bring on
record the legal representatives of the deceased 1st appellant Mehar Singh and
learned Counsel appearing for the other four appellants informed the office
that the legal representatives were not being brought on record and that he
would proceed with the appeal on behalf of the four surviving appellants.
At the hearing of the appeal learned Counsel
for the respondents submitted that the appeal ought 863 to be dismissed as
incompetent since the same had abated on the death of the first appellant
without his legal representatives being brought on record. Learned Counsel for the
appellants, however, contended that whatever might be the position as regards
the share to which Mehar Singh was entitled in the property purchased, the
interest of the deceased was distinct and separate from that of the others and
that the abatement could be in any event only partial and would not affect the
continuance of the appeal by the surviving appellants at least as regards their
share in the property. As the deed of sale under which the appellants purchased
the property was not among the printed records of this Court, the appeal was
adjourned in order to enable learned Counsel for the appellants to produce. it
and substantiate his contention that the interest of the deceased Mehar Singh
wag distinct and separate. An English translation of the deed of sale has now
been produced before us and a perusal of it indicates that the submission made
on behalf of the appellants is not sustainable. The consideration for the sale
is a sum of Rs.22,750/and the conveyance recites that Mehar Singh and the second
appellant bad paid one half amounting to Rs. 11,375/while the other three
appellants had paid the other half It is therefore not a case of a sale of any
separated item of property in favour of the deceased-appellant but of one
entire set of properties to be enjoyed by two sets of vendees in equal shares.
It is clear law that there can be no partial preemption because preemption is
the substitution of the preemptor in place of the vender and if the decree in
favour of the preemptors in respect of the share of the deceased Mehar Singh
has become final it is manifest that there would be two conflicting decrees if
the appeal should be allowed and a decree for 864 preemption insofar as
appellants 2 to 5 are concerned is interfered with. Where a decree is a joint
one and a part of the decree has become final by reason of abatement, the
entire appeal must be held to be abated. It is not necessary to cite authority
for so obvious a position but we might refer to the decision of this court in
Jhanda Singh v. Gurmukh Singh (deceased) (1). The result is that the appeal
fails as having abated and is dismissed with costs.
Civil appeal No. 139 of 1961 The material
provision of s. 15 of the Act relevant for the consideration of the
constitutional point raised in this appeal is s. 15(a), but as the validity of
other clauses of the same section are challenged in the other appeals, we
consider it convenient to set out the other relevant ones also:
"15. Subject to the provisions of
section 14 the right of preemption in respect of agricultural land and village
immoveable property shall vest(a) where the sale is by a sole owner or
occupancy tenant or, in the case of land or property jointly owned or held, is
by all the co-sharers jointly, in the persons in order of succession, who but
for such sale would be entitled, on the death of the vendor or vendors, to
inherit the land or property sold:
(b) where the sale is of a share out of joint
land or property, and is not made by all the co-sharers jointly,firstly, in the
lineal, descendants of the vendor in order of succession;
(1) Civil Appeal No. 344 of 1956, decided on
April IO, 1962.
865 secondly, in the co-sharers, if any, who
are agnates, in order of succession;
(c) If no person having a right of preemption
under clause (a) or clause (b) seeks to exercise it :.......................................
thirdly, in the owners of the estate;
The following few facts are necessary to be
stated to appreciate the manner in which the question arises. One Ram Nath sold
certain agricultural land of an area of about 65 bighas in village Durjanpur in
District Sangrur of Punjab to the second respondent Pooran by a deed of sale
dated December 12, 1957. The vendee-Pooransold the land he had purchased, in
favour of Ram Sarupappellant before us.
Subsequently Munshi the first respondent
brought a suit Suit 297 of 1958 in the Court of the Subordinate Judge First
Class at Narwana stating that he was the son of vendor Ram Nath and claiming
preemption under is. 15 of the Act.
There were rival claims for preempting the
same property and another suit was filed in regard to it which was tried along
with the suit by Munshi, but this failed and is no longer of relevance. The
main contest to the suit by Munshi was based upon a denial of the fact that he
was the son of Ram Nath.
This issue was found in favour of the
respondent by the Subordinate Judge who decreed the suit, which judgment was
confirmed successively by the District Judge on appeal and thereafter by the
High Court on second appeal. It was therefore common ground that if s. 15(a)
was constitutionally valid, the sale by Ram Nath was subject to the right of
Munshi, to preempt and that consequently his suit was properly decreed.
866 The constitutional validity of s. 15 was
not contested before the High Court because of the decision of a Full Bench of
that Court which had upheld its validity. It was only at the stage of an
application for a review of the Judgment of the High Court that this point was
raised but the learned Judges rejected it and it was on the ground of this
constitutional point that special leave was granted and that is the only point
for consideration in this appeal.
Before adverting to the points urged by
learned Counsel as regards the constitutional validity of s. 15 it is necessary
to notice an argument urged on behalf of the appellant for sustaining a
contention that even apart from the unconstitutionality of the provision the
right of preemption conferred by s. 15(a) has ceased to be enforceable.
The argument under this head was rested on
the opening words of s. 15 and certain other provisions to which we shall
immediately advert. It would be noticed that a. 15 opens with the words
"Subject to the provisions of section 14 the right of preemption in respect
of agricultural land.........
shall vest". Section 14 runs in these
"14. No person other than a person who
was at the date of sale a member of an agricultural tribe in the same group of
agricultural tribes as the vendor shall have a right of preemption in respect
of agricultural land sold by a member of an agricultural tribe." The
expression "agricultural tribe" referred to in s. 14is defined in s.
3(4) of the Act thus: "member of an agricultural tribe and group of
agricultural tribes shall have the meanings assigned to them respectively under
the Punjab Alienation of Land Act, 1900.
" 867 Next it would be seen that a. 15
employs the words "in respect of agricultural land".
"Agricultural land" is defined in
s. 3(1) of the Act thus:
"'agricultural land' shall mean land as
defined in the Punjab Alienation of Land Act, 1900 (as amended by Act 1 of
1907), but shall not include the rights of a mortgagee whether usufructuary or
not, in such land,;
Section 6 of the Act enacts;
"6. A right of preemption shall exist in
respect of agricultural land and village immoveable property, but every such
right shall be subject to all the provisions and limitations in this Act
contained"., and s. 23 enacts:
"No decree shall be granted in a suit
for preemption in respect of the sale of agricultural land until the plaintiff
has satisfied the Court(a) that the sale in respect of which preemption is
claimed is riot in contravention of the Punjab Alienation of Land Act, 1900:
and (b) that he is not debarred by tile provisions of section 14 of this Act
from exercising the right of preemption." Now, by the Adaptation of Laws
(Third Amendment) Order, 1951, the Punjab Alienation of Land Act, 1900, has
been repealed and the argument urged by the learned Counsel for the appellant
was that by reason of the repeal of that Act the right of preemption granted by
s. 15(a) has become unavailable. The argument was somewhat on these lines. It
is under s. 6 that the right of preemption is recognised and granted, though s.
15 868 sets out the circumstances in which it arises. Under s. 6 the right is
(a) in respect of "agricultural land ", and (b) the right conferred
by the Act is subject to every provision and limitation contained in it. In the
Act, as originally framed before the amendment effected by the Adaptation of
Laws (Third Amendment) Order, 1951 i. e., before the repeal of the Punjab
Alienation of Land Act, 1900, there were two principal limitations on the right
of preemption in respect of "agricultural land:" (1) it applied only
to such land as was defined in the Punjab Alienation of Land Act, and (2) by
virtue of s. 14 there was a limitation of the group of persons who might claim
the right of preemption if a sale took place by "a member of an
agricultural tribe", and the expression "member of an agricultural
tribe" was as defined by the Punjab Alienation of Land Act. Section 15
therefore was subject to the limitations of s. 14 and to the definition of
'agricultural land' and 'agricultural tribe' and this read in conjunction with
the positive provision in s.23 has become wholly inapplicable and unworkable
after the repeal of the Punjab Alienation of Land Act of 1900. The problem here
raised is dependent upon the construction which the several provisions which we
have set out earlier would bear after the repeal of the Punjab Alienation of
Land Act, 1900. One thing is clear and that is that the authority which
effected the repeal of the Punjab Alienation of Land Act did not consider that
Punjab Act 1 of 1913 had itself to be repealed. We shall now consider the
effect of the repeal of the Punjab Alienation of Land Act with reference to
each of the provisions:Definition of "agricultural land' under 8.3(1):
Where the provisions of an Act are incorporated by reference in a later Act the
repeal of the earlier Act 869 has, in general, no effect upon the construction
or effect of the Act in which its provisions have been incorporated.
The effect of incorporation is stated by
Brett, L. J., in Clarke v. Bradlaugh: (1) "Where a statute is
incorporated, by reference, into a second statute the repeal of the first
statute by a third does not affect the second." In the circumstances,
therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no
effect on the continued operation of the Preemption Act and the expression
'agricultural land' in the later Act has to be read as if the definition in the
Alienation of Land Act had been bodily transposed into it.
Section 2 of the Punjab Alienation of Land
Act, 1900, as amended by Act 1 of 1907 defined `Land' as follows:
"The expression 'land' means land which
is not occupied as the site of any building in a town or village and is
occupied or let for agricultural purposes or for purposes subservient to
agricultural or for pasture, and includes........................... " It
is not in dispute that the land concerned in the claim for preemption made in
the appeal satisfies this definition.
We shall next take up the effect of the
repeal of the Punjab Alienation of Land Act, 1900, on s.14 of the Act and of
the definition contained in a. 3 (4) thereof of the expression "member of
an agricultural tribe" and the effect of these on the right of preemption
conferred by s. 15(a). With the repeal of the Punjab Alienation of Land Act,
1900, it is manifest that s.14 would lose all (1) (1881) 8 Q.B. D, 63.
870 significance, but this does not help, in
any manner, the contentions urged by learned Counsel for the appellant. It
would be seen that s. 14 is restrictive, in that in the case of the alienations
by persons referred to in that section the right of preemption is conferred
upon a limited group.
With the repeal of the Punjab Alienation of
Land Act, 1900, the restriction imposed by s. 14 as regards the availability of
the right of preemption to particular agricultural tribes would disappear. In
other words, the effect of the removal of the limitation of s. 14 would only be
that the opening words of s. 15 cease to operate. In such circumstances s. 14
would lose all significance because the post-Constitution law does not
recognise membership of tribes as conferring any special rights and
consequently the elimination of s. 14 would leave a. 15 without the limitation
originally imposed upon it. In the same manner the restriction imposed upon the
passing of decrees by s. 23 could also not operate after the repeal of the
Punjab Alienation of Land Act but that would leave the Court with an unfettered
power to grant decrees under the provisions of the Act, i. e., without the
limitations imposed by a. 23.
We are therefore clearly of the opinion that
neither the repeal of the Punjab Alienation of Land Act, 1900, nor the
consequential removal of the fetters imposed by ss. 14 and 23 have the effect
of rendering the substantive provision contained in s. 15 not available to
those who satisfy its terms. In these circumstances we have necessarily to
consider the main question raised by learned Counsel for the appellant, viz.,
that the rights conferred upon the preemptor is an unreasonable restriction on
the right of vendors "to hold and dispose of property)" and of
prospective vendees to acquire property" guaranteed to citizens of India
by Art. 19(1) (f) of the Constitution.
871 Before proceeding to consider the
question about the constitutional validity of a. 15(a) of the Act, it is
necessary to mention that s. 15 of the Act has been the subject of very
substantial amendments effected by the Punjab Preemption (Amendment) Act of
1960 (Act 10 of 1960).
This however makes no difference to the
present appeal since the relevant portion of s. 15 as amended reads :
"15. (1) The right of preemption in
respect of agricultural land and village immoveable property shall vest(a)
where the sale is by a sole owner FIRST, in the son or daughter or son's son or
daughter's son of the vendor;" In view of this feature, it is needless to
consider in this appeal as to whether the amending Act is retrospective and if
so, the degree of retrospectively question which falls for decision only in
Civil Appeal No. 510 of 1961.
It is common ground that the right of
preemption granted by the statute is a restriction on the right "to hold
and dispose of property" on the part of the vendor the right guaranteed by
Art.19(1)(f) of the Constitution. The question, however, is whether the
restriction imposed is reasonable and in the interest of the general public
within Art. 19(5) of the Constitution. The general question about the impact of
the right conferred by Art. 19(1)(f) on the right of preemption has been dealt
with exhaustively in the judgment of this Court in Bhau Ram v. Baij Nath (1)
and it is (1) (1952) Supp. 3 S.C.R. 724.
872 unnecessary to cover the ground again.
The proper approach to the question would be as to whether the grounds which
are stated to underlie the provision are reasonable judged in the light of
present day standards and needs of the community and are in the interests of
the general public.
The question about the reasonableness of this
restriction contained in 3. 15 of the Act was considered by a Full Bench of the
High Court of Punjab in Uttam Singh v. Kartar Singh (1) and as the grounds
stated there have been referred to with approval in subsequent decisions of the
Punjab High Court and were relied on before us by learned Counsel for the
respondent we might as well extract the passage in full :
"It is plain that the objects underlying
15 and 16 of the Act may be briefly
enumerated as follows :
(1) to preserve the integrity of the village
and the village community;
(2) to avoid fragmentation of holdings;
(3) to implement the agnatic theory of the
law of succession;
(4) to reduce the chances of litigation and
friction and to promote public order and domestic comfort; and (5) to promote
private and public decency and convenience." The reference here in the
above passage to "the promotion of public order and domestic comfort"
and to "Private and public decency and convenience" obviously have
relevance to urban immoveable property dealt with in s. 16. The (1) A. 1. R.
1954 Punjab 55.
873 grounds on which the reasonableness of
the right of preemption granted by law in regard to agricultural property dealt
with in s. 15 would therefore appear to be the first four of the above. Among
them much stress could not be laid on the avoidance of chances of litigation
and friction because the existence of the right of preemption could also give
rise to litigation which otherwise might not exist. Nor can the ground of
avoidance of fragmentation of holdings afford assistance to sustain the claim
of a son to preempt in the event of a sale by a sole owner-father, for that
criterion has primary relevance to the right of preemption enjoyed by
co-sharers and the like. The grounds for upholding s. 15(a) as reasonable and
in the interest of the general public therefore finally resolve themselves into
(1) to preserve the integrity of the village
and the village community; and (2) to implement the agnatic rule of succession.
The objective underlying the first ground is
prima facie reasonable and calculated to further the interest of the general
public. It was however pointed out by learned Counsel for the appellant that
with the large scale migration of population into Punjab consequent on the
problems created by partition there has been a disintegration of the village
community and that in the circumstances, what is at the present date
imperatively required is not the keeping out of strangers from rural areas but
rather for their being absorbed into the village community and that in that
context the existence of a law which prevented such absorption could not be
characterized as being either reasonable or in the interests of the general
public. Though we see some force in this submission of learned 874 Counsel we
are unable to accept it as a final and conclusive answer to the argument
against the reasonableness of the provision for we find that in the schemes for
rehabilitation of the refugees the principle of the integrity of the village
community and the need to maintain some degree of cohesion as regards the
population in each village has been observed and, indeed, forms the basis of
the methods by which different groups of refugees were settled in various parts
of the Punjab. It has thus been possible to reconcile somewhat the needs of the
refugees being settled in India, with the preservation of the integrity of the
Even if this ground cannot serve to sustain
the constitutionality of the provision, we consider that the other ground viz.,
that the next in succession should have the chance of retaining the property in
the family, would suffice to render the restriction reasonable and in the
interest of the general public within Art. 19(5). In this connection we might
refer to the reasoning in the decision of the Rajasthan High Court in Siremal
v. Kantilal(1) where the learned Judges struck down as unconstitutional a
provision in a. 3 of the Marwar Preemption Act which granted a right of
preemption "to persons related within three degrees to the vendor of the
house or building-plot provided that the nearer in degree shall have priority
over one more remote" as an unreasonable restriction on the right
conferred by Art. 19(1)(f) of the Constitution. The basis of this ruling was
that the impugned enactment conferred the right of preemption on all relations
within three degrees and did not restrict it to the members of the family.
Under s.15 of the Act, particularly after the amendment effected by Act 10 of
1960, the right of preemption is confined to the members of the family (1)
A.I.R. 1954 Rajastban 195.
875 of the vendor, i. e., those who would
have succeeded to the property in the absence of any alienation.
The relevant portion of s. 15 (1) after
"15. (1) The right of preemption in
respect of agricultural land and village immoveable property shall vest(a)
where the sale is by a sole owner, FIRST, in the son or daughter or son's son
or daughter's son of the vendor;
SECONDLY, in the brother or brother's son of
THIRDLY, in the father's brother or father's
brother's son of the vendor;
FOURTHLY,.................. " No doubt,
the son and the other members of the family would not have been entitled to a
present interest in the property alienated and consequently would not have a
right to prevent the alienation (in which event, however, it is needless to add
that a right to preempt wan wholly unnecessary as a means of preserving the
property), but they would have a legitimate expectation of succeeding to the
property-an expectation founded on and promoted by the consciousness of the
community. If the social consciousness did engender such feelings, and taking
into account the very strong sentimental value that is attached to the
continued possession of family property in the Punjab, it could not be said
that the restriction on the right of free alienation imposed by s. 15(1)(a)
limited as it is to small class of near relations of the vendor is either
unreasonable or not in the interest of the general public. The result is the
appeal fails and is dismissed with costs.
876 Civil Appeal No. 147 of 1961.
The facts giving rise to this appeal are
briefly as follows : The appellant Dalip Singh purchased under a deed dated
June 1,, 1957, agricultural land measuring 98 bighas and 10 biswas situated in
village Bailerkha in district Sangrur under a registered deed of sale. The
vendors were Nihal Singh, Wazir Singh and Gurdial Singh who are respondents 2
to 4 before us. Sunder Singh brother of respondents 2 & 3 and uncle of the
4th respondent filed a suit in the Court of the Sub-Judge, Narwana, for preemption
basing his claim under s. 15(a) of the Act. It is manifest that even under the
amended s. 15 a person in the position of the first respondent has a right to
preempt. It would be seen that under s. 15(a), as it originally stood, the
right of preemption is conferred upon persons who would succeed as heir to the
vendor in the event of his death. In other words, preemption in such cases is
the grant of an option to the heirs to retain property in the family. As we
have already pointed out in dealing with the claim by a vendor's son in Appeal
139 of 1961, we consider that the provisions contained in s. 15(a), as it
originally stood, as well as in the modified form in which it has been
reenacted do not transgress the limits of reasonableness required by Art.19(5)
of the Constitution. As the constitutionality of s.15(a) was the only ground
which was or could be canvassed before us in this appeal and as we are
rejecting it follows that the appeal fails. It is accordingly dismissed with
Civil Appeal No. 510 of 1961 What now remains
to be dealt with is Civil Appeal 510 of 1961. This appeal arises out of a suit
filed by the first respondent as plaintiff for preemption of certain
agricultural land in village 877 Fatehabad in Amritsar district. The sale which
gave rise to the suit was under a deed dated December 29, 1949, in favour of
the appellate Singh. The claim to preempt was based on s. 15 (c)
"thirdly" of the Punjab Preemption Act, 1913, which has already been
set out. The expression " estate" which is used in cl. (c)
"thirdly" is not defined by the Act but by reason of its s. 3 (6) the
definition in s. 3 of the Punjab Land Revenue Act, 1887, is attracted to it.
Turning now to s. 3 of the Punjab Land Revenue Act (Act XVII of 1887), it
defines an 'estate' as meaning, inter alia, "any area for which a separate
record-of-rights has been made." It was the case of the plaintiff-first
respondent before us that he owned land in the "estate" whereas the
under--the appellant before us did not own any land there. The defendant while
not disputing that the plaintiff owned land in the village or the correctness
of the allegation that the land was in an "estate", sought to prove
that he too owned land in the same village and "estate" but in this
As the case of the plaintiff was directly
covered by the terms of the statute his suit was decreed by the trial Court on
November 8, 1951, and an appeal and second appeal there from were also
dismissed. It was from this judgment of the High Court that this appeal has been
brought and the principal point on which leave was granted related to the
constitutionality of the provision in s. 15 of the Preemption Act upon which
the respondent based his claim to preempt.
In regard to the point about the
Considerational validity of s. 15 (c) "thirdly" we consider that the
case is clearly covered by the judgment of this Court in Bhau Ram v. Baij Nath
(1) where the Court upheld the validity of the right of preemption granted
under Ch, XIV of the Berar Land Revenue Code (Appeal 430 of 1958). In the (1)
 Supp 3 S. C.R 724.
878 case of an estate within s. 3 of the
Punjab Land Revenue Act of 1887, s. 61 of the Act enacts:
"61 (1) In the case of every estate, the
entire estate and the landowner or, if there are more than one, the landowners
jointly and severally, shall be liable for the land revenue for the time being
assessed on the estate :
(a) the State Government may by notification
declare that in any estate a holding or its owner shall not be liable for any
part of the land-revenue for the time being assessed on the estate except that
part which is payable in respect of the holding; and (b).....................
(2) A notification under proviso (a) to subsection
(1) may have reference to any single estate or to any class of estates or
estates generally in any local area." Thus it will be seen that an
"estate" is an unit of assessment and there is a joint and several
liability on persons owning land within the "estate', to pay the entire
assessment due on the estate. Thus though it is not really the case of a
co-sharer, it is somewhat akin to that of a co-sharer because of the joint
liability for payment of land revenue. We therefore consider that the
restriction on the right of a vendor in such a case is a reasonable one and not
repugnant to Art. 19 of the Constitution. As learned Counsel for the appellant
desired to have time to ascertain whether there had been a notification of the
Local Government such as is referred to in a. 61 of the Punjab Land Revenue 879
Code, we adjourned the case to enable him to produce the notification, if there
was one, and we were informed that there was none.
If therefore the matters had stood as under
the law as enacted in s. 15 of the Act the appeal would have to be dismissed.
The Punjab Legislature, however, effected substantial amendments to the Punjab
Preemption Act of 1913 by Punjab Act 10 of 1960 and it is the impact of this
later legislation on the rights of the parties to this appeal that now requires
to be considered. Punjab Act 10 of 1960 received the assent of the Governor on
February 2, 1960, and was published in the Punjab Government Gazette two days
later. By s. 4 of the Amending Act s. 15 of the parent Act was repealed and in
its place was substituted a new provision which omitted to confer a right of
Preemption in the case of persons "owning land in the estate )I as the
original section 15 (c) "thirdly" had done. Retrospective effect was
giving to the provisions contained in the Amending Act by the insertion of a new
s. 31 in the parent Act Which read:
"31. No court shall pass a decree in a
suit for preemption whether instituted before or after the commencement of the
Punjab Preemption (Amendment) Act, 1959, which is inconsistent with the
provisions of the said Act".
It may be mentioned that the figure 1959 in
s. 31 is an obvious mistake for 1960 which is the correct year of the Amending
Act. The question now for consideration is whether by reason of this amendment
in the law, the respondent is entitled to the benefit of the decree which he
obtained under the previously existing enactment. That s. 31 is plainly
retrospective and that it affects 880 rights to preemption which had accrued
before the coming into force of the Amending Act is not in controversy for s. 31,
in plain terms, makes the substantive provisions of the enactment applicable to
suits whether instituted "before or after" the commencement of the
Amending Act. It was urged before us by learned Counsel for the appellant that
in view of the plain language of s. 31 this Court should apply the substantive
law enacted by the Punjab Legislature in the amended s. 15 of the Preemption
Act and set aside the decree for preemption passed in favour of the first
respondent. In this connection learned Counsel referred us to the judgment of
the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri(1) as
to the course which this Court would adopt in giving effect to Amending
legislation interfering with the. rights of parties in pending appeals, and to
the decision of a Division Bench of the Punjab High Court in Ram Lal v. Raja
Ram(2) where the learned Judges, on a construction of s. 31 of the Act set
aside a decree for preemption passed in favour of the respondent before the
Court, giving effect to the provisions contained in Punjab Act 10 of 1960.
Mr. Achhru Ram, learned Counsel for the
respondent, however, submitted that the language employed in the new s. 31 was
not sufficient to permit a decree passed in favour of a preemptor being set
aside by an appellate Court merely because the ground on which preemption had
been claimed and decreed was not one that was included within the amended
He placed reliance on the principle that
besides the rule of construction that retrospective operation is not, in the
absence of express words therefore, to be given to a statute so as to impair
existing rights except as regards matters of procedure, there was a further (1)
 F.C.R. 84.
(2) (1960) 62 P.L.R. 291.
881 well-recognised rule that a statute was
not to be construed to have a greater retrospective operation than its language
rendered strictly necessary. The argument was that though by the use, in s. 31,
of the words "Suit for preemption instituted before or after the
commencement of the Act" a certain amount of retrospective effect was
intended, still the retrospectivity was but partial in its operation and that
the words used did not permit the setting aside by an appellate Court of a
decree which was validly passed under the substantive law applicable to the
facts at the date of the original decree,. In this connection he placed
considerable reliance on the employment of the words "no decree shall be
passed" in the opening words of s. 31 as indicative of a ban only on the
passing of a decree-an event which be contended would occur, firstly when a
trial Court passed a decree and secondly when the trial Court having refused a
decree, the appellate Court is called upon to pass a decree which the trial
Court should properly have done and in no other Contingency. On this reasoning
the contention was urged that where a trial Court had passed a decree and that
decree gave effect to the law as it stood up to the date of that decree, the
words of s. 31 did not enable an appellate Court to set aside that decree on
the ground of a change in the substantive law effected by the Amending Act.
Through we agree that there is a presumption
against the retrospective operation of a statute and also the related principle
that a statute will not be construed to have a greater retrospective operation
than its language renders necessary, we consider that in the present case the
language used in s. 31 is plain and comprehensive so as to require an appellate
court to give effect, to the substantive provisions of the Amending Act whether
the appeal before it is one against a decree granting preemption or one
refusing that relief. The decision of the 882 Federal Court in Lachmeshwar
Prasad v. Keshwar Lal (1) on which learned Counsel for the appellant relied
fully covers this case. The question there raised related to the duty of the
Federal Court when an amending Act enacted after the decree appealed from was
passed adversely interfered with the rights of the respondent before the Court.
The learned Judges held. that the provisions of the Act were clearly
retrospective and should be applied to the decree which was the subject-matter
of appeal before it and the appeal was accordingly allowed and remitted to the
High Court for effect being given to the new legislation. Mr. Achhru Ram,
however, sought to suggest that the language of s. 7 of the Bihar Moneylenders
Act, 1939 which was the subject of construction before the Federal Court was
differently worded and was of wider amplitude. That section ran:
"7. Notwithstanding anything to the
contrary contained in any other law or in anything having the force of law or
in any agreement, no Court shall, in any suit brought by a money-lender before
or after the commencement of this Act in respect of a loan advanced before or
after the commencement of this Act or in any appeal or proceedings in revision
arising out of such suit, pass a decree for an amount of interest for the
period preceding the institution of the suit, which, together with any amount
already realised as interest through the Court or otherwise, is greater than
the amount of loan advanced, or, if the loan is based on a document, the amount
of loan mentioned in, or evidenced by such document." In particular
learned counsel stressed the fact that unlike in s. 31 of the Act now under
consideration, in the Bihar Act there were specific references to (1) 
883 "appeals" and
"revision" and that this made a difference.
But in our opinion this makes no difference
since it is admitted that s. 31 even according to the respondent has to be
given effect to, not merely by a trial Court but also by an appellate Court,
only learned Counsel could urge that the appellate Court could give effect to
the Amending Act only in cases where the trial Court has refused a decree for
preemption. No distinction can, therefore, be rested on the ground that the
Bihar Act specifically referred to ",appeals" and
"revisions" seeing that the relevant operative words in s. 7 of the
Bihar Act were "no Court shall pass a decree" words which occur in s.
31 of the Act as well. On the other hand the reasoning of the learned Judges of
the Court which was based on the nature of an appeal under the Indian
procedural law as a rehearing and a court of appeal being not a court of error
merely, and the view expressed that when an appeal was filed the finality which
attached to the decree of the trial court disappeared, all these lines of
reasoning point to the fact that even when an appellate court dismisses an
appeal it also is passing a decree. In this connection we consider that the
reasoning and the conclusion of the Division Bench of the Punjab High Court in
Ram Lal v. Raja Ram (1) correctly sets out the principles underlying the scope
of an appeal as well as the proper construction of s. 31 of the Amending Act.
It was not suggested that if the provisions
of s. 15 as amended by Punjab Act 10 of '1960 had to be applied the decree in
favour of the respondent could be sustained. The result therefore is that the
appeal has to be allowed, the decree in favour of the respondent set aside and
the respondent's suit for preemption dismissed. In view, however, of (1) (1960)
62 P.L.R. 291.
884 the circumstances that the appellant has
succeeded only by virtue of subsequent legislation, we direct that there shall
be no order as to costs in the appeal.
Appeals Nos. 139, 147 and 214 dismissed.
Appeal No. 510 Allowed.