Thankerton, J. -
(1.)THIS is an appeal from the judgment and order of the Federal Court of India, dated May 8, 1942, by which the judgment and decree of the High Court of Judicature at Lahore, dated February 27, 1941, dismissing appeals by the appellant and respondents Nos. 2 and 3 respectively from the judgment and decree of the Subordinate Judge, IV Class, Sialkot, dated July 22, 1940, 'were set aside and the case sent back to the High Court with a direction for the framing of proper issues and the remittal of the case to the trial Court for further trial and decision.
(2.)THE only question in this appeal is whether, and, if so, to what extent, Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938, Punjab Act X of 1938, is rendered invalid by Section 298 of the Government of India Act, 1935, as being ultra vires of the Punjab Provincial Legislature. THE Punjab Act of 1938, which may be conveniently referred to as the impugned Act, by Section 5 purported to insert a new Section 13a in the Punjab Alienation of Land Act, 1900 (Indian Act XIII of 1900), which may be referred to as the principal Act, the new section being expressly given retrospective effect.
The principal Act, as amended up to June 1, 1939, when the impugned Act came into operation, deals with permanent alienation of land in Part II (ss. 3 to 5), and temporary alienation of land in Part III (ss. 6 to 13) of the Act. The expression "land" is defined in Section 2 (3), and, broadly stated, it covers agricultural land and buildings, and excludes building sites and buildings in a town or village; and, by Section 2 (4), "permanent alienation" is defined to include sales, exchanges, gifts, wills and grants of occupancy rights. By Section 3 it is provided that, except where the alienor is not a member of an agricultural tribe, or the alienor is a member of an agricultural tribe and the alienee is a member of the same tribe or of a tribe in the same group, a permanent alienation of land shall not take effect as such unless and until sanction is given thereto by a Deputy Commissioner, and Section 14 provides that any such permanent alienation shall, until such sanction is given, or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by Section 6 for such term not exceeding twenty years and on such conditions as the Deputy Commissioner considers to be reasonable.
As regards temporary alienations of land, Section 6 (1) provides that if a member of an agricultural tribe mortgages his land and the mortgagee is not a member] of the same tribe, the mortgage shall be made in one of certain prescribed forms, and Section 9 (1) provides that, if a member of an agricultural tribe makes a mortgage of his land in any manner or form not permitted by or under the Act, the Deputy Commissioner shall have authority to revise and alter the terms of the mortgage so as to bring it into accordance with such form of mortgage permitted by on under the Act as the mortgagee appears to him to be equitably entitled to claim.
(3.)PERHAPS the most important section of the principal Act for present purposes is Section 4, under which the Local Government, for which the Provincial Government was substituted in 1937, were, by notification in the Official Gazette, to determine what bodies of persons in any district or group of districts were to be deemed to be agricultural tribes or groups of agricultural tribes for the purposes of the Act. Accordingly, by Punjab Government Notification No.63, dated April 18, 1904, it was determined that for the purpose of the Act (1) In each district of the Punjab mentioned in column 1 of the Schedule attached to this notification, all persons either holding land or ordinarily residing in such district and belonging to any one of the tribes mentioned opposite the name of such district, in column 2, shall be deemed to be an " agricultural tribe " within the district. (2) All the ' agricultural tribes' within any one district shall be deemed to be a group of agricultural tribes.
The schedule has from time to time been amended.