PRAHLAD Vs. HUKMA

JUDGEMENT

(1.) The appellant has filed the second appeal against the judgment and decree of the Additional Commissioner, Jaipur dated the 30th September, 1959.

(2.) Briefly the facts of the case are that one Bhoora filed a suit for division of certain holdings against the respondents before the Assistant Collector, Jaipur. He claimed half share in the property. During the pendency of the suit Bhoora died in December, 1954 and the present appellant Shri Prahlad was brought on record as his legal representative. The trial Court dismissed the appellants suit on the ground that he was not the rightful heir of Bhoora under the Jaipur Tenancy Act and as Bhoora was a co -tenant of the holding and died heirless his right vested by survivorship in other co - tenants. The appellant unsuccessfully filed an appeal before the first appellate Court.

(3.) The first contention of the counsel for the appellant was that both the subordinate courts wrongly held that the Khatedari interest of Bhoora deceased devolved in accordance with sec. 17 of the Jaipur Tenancy Act. He pleaded that the aforesaid Act was no longer a good law on the enforcement of the constitution of India in January, 1950. By Art. 254 all restrictions imposed on the transfer of the property were removed by the Constitution and the Indian Succession Act governed the succession to the agricultural holdings on Bhooras death. The provisions of Jaipur Tenancy Act being inconsistent with the provisions of the Indian Succession Act a reference could be made to the High Court on this important point of law as to which law would prevail. Under the Indian Succession Act which also applied to the devolution of agricultural tenancies Prahlad was a proper heir to Bhoora deceased both by way of intestate succession as well as by will of which he obtained. The second contention of the counsel for the appellant was that the appellant Prahlad was a proper heir to Bhoora deceased under sec. 8 of the Hindu Succession Act, 1956 which applied retrospectively and governed succession of Bhooras heir, although he died sometime before the enforcement of that Act. In support the counsel cited AIR 1957 Orissa page 1, AIR 1951 Patna, page 503 and AIR 1953 Calcutta page 571, wherein it has been held that like other sections of the same Act the "words person dying intestate after the commencement of the Act" are significantly missing in Sec. 8 of that Act. The aforesaid section only declares the status of the person dying and does not give the time of his death and could be applied retrospectively. The counsel for the respondent repelled argument by saying that the Indian Succession Act never applied to agricultural tenancies. It was an Act made under the Govt. of India Act and the central legislature had no power to legislate for tenancy matters for the State. Similarly after the enforcement of the Constitution of India no doubt in List III of concurrent subject entry No. 5 relating, to wills intestacy and succession gives wide powers to the Union to legislate and the Hindu Succession Act on the face of it would apply and govern succession to agricultural tenancies. But sec. 4(2) of the Hindu Succession Act specifically excluded the operation of that Act to agricultural tenancies and therefore the Jaipur Tenancy Act which remained unrepealed when Bhoora died governed succession to agricultural tenancy and not any other law. In support he cited 1961 RLW. Revenue Supplement page 40 wherein the High Court of Rajasthan (?) has held that Hindu Succession Act does not apply to agricultural tenancies and the succession to tenancy is governed by personal laws under sec. 40 of the Rajasthan Tenancy Act.