Ram Sarup vs Munshi And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 30 August 1962

Coram: N. Rajagopala Ayyangar, P.B. Gajendragadkar, A.K. Sarkar, K.C. Das Gupta, J.R. Mudholkar

In the matter titled Ram Sarup versus Munshi and others, the Supreme Court of India delivered its judgment on the thirtieth day of August, 1962. The opinion for the Court was authored by Justice N. Rajagopala Ayyangar, who sat on the bench together with Justices P. B. Gajendragadkar, A. K. Sarkar, K. C. Das Gupta, and J. R. Mudholkar.

The petitioner in the case was Ram Sarup and the respondents were Munshi and several other parties. The judgment, rendered on 30 August 1962, was issued by the bench headed by Justice N. Rajagopala Ayyangar, with the other judges named above forming the full composition of the bench.

The decision has been reported in the All India Reporter at page 553 of the 1963 volume and in the Supreme Court Reports, third series, at page 858 of the 1963 volume. The case has subsequently been cited in numerous later decisions, including but not limited to D 1965 SC 1049, D 1967 SC 940, D 1968 SC 1205, R 1970 SC 349, R 1971 SC 89, R 1975 SC 17, R 1975 SC 733, RF 1975 SC 1835, R 1979 SC 798, F 1985 SC 111, RF 1986 SC 859, RF 1987 SC 1140, RF 1989 SC 222, and RF 1992 SC 207.

The issues before the Court concerned the constitutional validity of legislation relating to pre‑emption of agricultural land. Specifically, the Court examined an amendment that prohibited the issuance of a decree for pre‑emption in certain circumstances, the retrospective effect of that amendment on a pending appeal, and the interaction of the Punjab Land Revenue Act of 1887 (Punjab 17 of 1887), section 3, with the Punjab Pre‑emption Act of 1913 (Punjab 1 of 1913) as amended by Punjab Act 10 of 1960, sections 3(a), 3(4), 3(6), 6, 14, 15, 23, and 31. The Court also considered the provisions of Articles 19(1)(f) and 19(5) of the Constitution of India, the question of abatement of a decree for pre‑emption against purchasers, the death of an appellant during the pendency of an appeal, the failure to record the legal representatives of the deceased appellant, and the maintainability of the appeal in those circumstances.

The headnote of the judgment set out the factual backdrop: the owner of a parcel of agricultural land in Punjab transferred the land to the second respondent by a deed dated 12 December 1957. The vendor’s son claimed that he possessed a pre‑emptive right over the land and instituted suit against the appellant, who had purchased the land from the first respondent, relying upon section 15(a) of the Punjab Pre‑emption Act, 1913. The appellant raised two principal defenses. First, it argued that the pre‑emptive right created by section 15(a) of the Punjab Pre‑emption Act, 1913, ceased to be enforceable upon the repeal of the Punjab Alienation of Land Act, 1900, effected by the Adaptation of Laws (Third Amendment) Order, 1951, in view of sections 3(a), 3(4), 6, 14, and 23 of the 1913 Act. Second, the appellant contended that section 15(a) of the 1913 Act was inconsistent with Article 19(1)(f) of the Constitution.

The Court held that the repeal of the Punjab Alienation of Land Act, 1900, did not affect the continued operation of the Punjab Pre‑emption Act, 1913. It further held that the term “agricultural land” appearing in the later legislation must be interpreted as if the definition supplied by the repealed Alienation of Land Act were incorporated into it. In reaching this conclusion, the Court relied upon the authority of Clark v. Bradlaugh (1881) 8 Q.B.D. 63. The Court also observed that the effect of the repeal of the 1900 Act was to remove the restrictions imposed by sections 14 and 23 of the Punjab Pre‑emption Act, 1913, thereby granting the courts an unrestricted power to grant decrees to parties who satisfied the conditions of section 15.

The Court observed that the limitation on the right of free alienation imposed by section 15(a) of the Punjab Pre‑emption Act, 1913, was intended to preserve both the integrity of the village and the village community, and to give effect to the agnatic rule of succession. It held that these objectives were reasonable and served the public interest. Accordingly, the provisions originally contained in section 15(a) and those introduced after the amendment effected by Punjab Act 10 of 1960 were found not to exceed the bounds of reasonableness required by article 19(5) of the Constitution. The Court relied on the earlier decisions in 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, to support this view. The matter then turned to Civil Appeal No. 510 of 1961, wherein the sale that gave rise to the suit was made by a deed dated 29 December 1949 in favour of the appellant. The first respondent asserted a right of pre‑emption under section 15(c) “thirdly” of the Punjab Pre‑emption Act, 1913. The trial court had decreed in favour of the respondent on 8 November 1951. When the appeal was heard, the constitutional validity of section 15(c) “thirdly” was contested. In the meantime, the Punjab Pre‑emption (Amendment) Act, 1960 (Act 10 of 1960) was enacted. This amendment repealed the original section 15 and replaced it with a new provision that omitted the right of pre‑emption for persons “owning land in the estate,” a right that the original section 15(c) “thirdly” had conferred. Additionally, the amendment inserted a new section 31, which expressly provided that no court could pass a decree in any suit for pre‑emption—whether instituted before or after the commencement of the Amendment Act—if such decree was inconsistent with the provisions of the Amendment Act.

The Court held that the restriction on the vendor’s right in cases arising under section 19(c) “thirdly” of the Punjab Pre‑emption Act, 1913, was a reasonable limitation and did not clash with article 19(1)(f) of the Constitution, following the precedent set in Bhau Ram v. Baij Nath & Others, (1962) Supp. 3 S.C.R. 724. It further found that the language of section 31 was sufficiently comprehensive to compel an appellate court to give effect to the substantive provisions of the Amending Act, irrespective of whether the appeal concerned a decree granting pre‑emption or a decree refusing such relief. Consequently, in light of section 31, the decree for pre‑emption that had been passed by the trial court could not be maintained. The Court supported this conclusion by referring to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, [1940] F.C.R. 84, and Ram Lal v. Raja Ram, (1960) 62 P.L.R. 291. The discussion then proceeded to Civil Appeal No. 214 of 1961, concerning properties sold by deed dated 25 April 1957, but the present excerpt ends before the Court’s further analysis of that appeal.

The property was sold for a total consideration of twenty‑two thousand seven hundred and fifty rupees. The first two appellants each contributed half of the purchase price, that is eleven thousand three hundred and seventy‑five rupees each, while the remaining three appellants together paid the other half of the amount. The documents of sale indicated that the transaction was not a division of the land into separate portions for the two groups of buyers; instead, the parties intended to share the entire property in equal proportions. Subsequently, a decree of pre‑emption was issued against the purchasers, who then appealed the decree. During the pendency of that appeal the first appellant died, and no application was filed to record his legal representatives in the proceedings. The Court held that, because the first appellant died without his heirs or legal representatives being brought on record, the appeal was deemed to have abated and therefore had to be dismissed. The Court further explained that when a decree is made jointly against several parties and any part of that decree becomes final because of an abatement, the whole appeal is considered to be abated.

The judgment arose under the civil appellate jurisdiction of the Supreme Court relating to Civil Appeals Nos. 139, 147, 214 and 510 of 1961. These appeals were filed by special leave against judgments and decrees dated 8 October 1959, 21 October 1959, 28 October 1959 and 4 March 1959 rendered by the Punjab High Court in RSA No. 473 of 1959, LPA No. 332 of 1959, RSA Nos. 921 of 1959 and 508 of 1953 respectively. Counsel for the appellant in Civil Appeal No. 139 of 1962 was Mr. J. P. Goyal, while counsel for respondent No. 1 in the same appeal was Mr. Nanak Chand. In Civil Appeal No. 147 of 1961, the appellants were represented by Mr. Hardyal Hardy and Mr. N. N. Keswani, and respondent No. 1 was represented by Mr. Dayal Swarup Mehra and Mr. K. R. Choudhuri. The appellants in Civil Appeal No. 214 of 1961 were represented by Mr. Hardev Singh and Mr. Y. Kumar, and respondents Nos. 1 to 4 were represented by Mr. K. L. Gosain and Mr. M. L. Aggrawala. In Civil Appeal No. 510 of 1961, the appellant’s counsel was Mr. P. S. Safeer and the respondent was represented by Mr. Achhru Ram and Mr. B. D. Jain. The judgment was delivered on 30 August 1962 by Justice Ayyangar, who noted that the four appeals were principally concerned with the constitutional validity of section 15 of the Punjab Pre‑emption Act, 1913, although the factual background of Civil Appeal No. 214 of 1961 could be resolved without addressing that constitutional issue.

The facts giving rise to the appeal are briefly as follows. The fifth and sixth respondents owned certain agricultural land situated in the village of Dugri and they conveyed that land to the appellants by a deed dated 25 April 1957. Subsequently respondents numbered one through four instituted a suit against the appellants; the vendor‑respondents numbered five and six were also impleaded as co‑defendants in that suit. The plaintiffs based their claim of pre‑emptive right on the ground that they were the nearest collaterals of the vendors and that, according to the rule of succession, they were entitled to step into the position of the vendors as heirs. Although there were some factual disputes, those disputes are not material for the present consideration; it is sufficient to note that the Subordinate Judge decreed in favour of respondents one to four on 10 December 1958. That decree was affirmed by the District Judge on appeal and was again affirmed on further appeal by the High Court. The appellants, who are the purchasers of the land, have brought the matter before this Court on the basis of the High Court’s judgment and decree. There were five appellants in total. They formed two separate groups: the first group consisted of the first and second appellants, who were brothers, and the second group consisted of appellants three, four and five. While the appeal was pending before this Court, the first appellant, Mehar Singh, died on 18 May 1960, leaving a widow and five children—four daughters and a son—as his legal heirs. No application was filed to bring the legal representatives of the deceased first appellant on record, and the counsel appearing for the remaining four appellants informed the Court that the legal representatives would not be brought on record and that the appeal would proceed on behalf of the four surviving appellants. At the hearing, counsel for the respondents submitted that the appeal should be dismissed as incompetent because it had abated upon the death of the first appellant without his legal representatives being entered. Counsel for the appellants, however, argued that irrespective of the share to which Mehar Singh was entitled in the purchased property, his interest was distinct and separate from that of the other appellants, and that any abatement could only be partial and would not prejudice the continuation of the appeal by the surviving appellants with respect to their respective shares. Because the deed of sale on which the appellants relied was not among the printed records of this Court, the matter was adjourned to allow the appellants’ counsel to produce the deed and to substantiate the claim that the deceased’s interest was distinct. An English translation of the deed of sale has now been produced before the Court, and a review of that translation shows that the appellants’ submission is not sustainable. The consideration amount specified in the deed is a sum of Rs 22,750, and the conveyance recites that Mehar Singh and the second appellant each paid half of that amount, namely Rs 11,375, while the other three appellants together paid the remaining half.

Singh and the second appellant had paid one half of the purchase price, amounting to Rs 11,375, while the remaining three appellants had paid the other half. Consequently, the transaction was not a sale of a separate portion of property in favour of the deceased appellant; rather, it was a sale of an entire group of properties to be enjoyed by two groups of purchasers in equal shares. The law is clear that partial pre‑emption is not permissible because pre‑emption operates by substituting the pre‑emptor in place of the vendor. If the decree granting pre‑emption rights to the pre‑emptors concerning the share of the deceased Mehar Singh has become final, allowing the appeal would create two conflicting decrees, and the decree granting pre‑emption as against appellants 2 to 5 would be interfered with. Where a decree is joint and a part of that decree becomes final by reason of abatement, the whole appeal must be treated as abated. No citation of authority was required for this obvious proposition, although the Court referred to the decision in Jhanda Singh v. Gurmukh Singh (deceased) (1). Accordingly, the appeal was held to have abated and was dismissed with costs. The provision of section 15 of the Act that is material for the constitutional issue raised in this appeal is section 15(a). Since the validity of other clauses of the same section is challenged in the other appeals, the Court found it convenient to set out the other relevant clauses: “15. Subject to the provisions of section 14 the right of pre‑emption in respect of agricultural land and village immovable 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. secondly, in the co‑sharers, if any, who are agnates, in order of succession; (c) If no person having a right of pre‑emption under clause (a) or clause (b) seeks to exercise it— … thirdly, in the owners of the estate. The following facts are necessary to appreciate how the question arises. Ram Nath sold certain agricultural land of about 65 bighas in the village of Durjanpur, District Sangrur, Punjab, to the second respondent Pooran by a deed of sale dated 12 December 1957. The vendee Pooran subsequently sold the land he had acquired…

In the present case the appellant, Ram Sarup, had purchased the land in his favour before this Court. Subsequently the first respondent, Munshi, instituted Suit 297 of 1958 in the Court of the Subordinate Judge First Class at Narwana, asserting that he was the son of the vendor Ram Nath and invoking the right of pre‑emption contained in section 15 of the Act. At the same time there were rival claims for pre‑empting the same parcel of land, and a separate suit relating to those claims was tried together with Munshi’s suit; that ancillary suit failed and is no longer relevant to the present proceedings. The principal contention raised by Munshi’s suit was a denial of his alleged filiation to Ram Nath, and the Subordinate Judge found in favour of the respondent, decreeing the suit. That decree was subsequently affirmed by the District Judge on appeal and later confirmed by the High Court on a second appeal. Consequently it was agreed by all parties that, assuming section 15(a) was constitutionally valid, the sale executed by Ram Nath was subject to Munshi’s pre‑emptive right, and therefore his suit had been correctly decreed. The question of the constitutional validity of section 15 was not contested before the High Court because a Full Bench of that Court had earlier upheld its validity. Only at the stage of an application for review of the High Court’s judgment was the constitutional issue raised; the learned judges rejected the plea, and special leave was granted on the ground that the constitutional point required determination, which is the sole issue before this Court. Before addressing the arguments presented by counsel concerning the constitutionality of section 15, the Court must note an additional contention advanced by the appellant. The appellant argued that even if the provision were found unconstitutional, the pre‑emptive right conferred by section 15(a) had ceased to be enforceable. This argument relied on the introductory wording of section 15 and on other related provisions that the Court will now examine. Section 15 commences with the words, “Subject to the provisions of section 14 the right of pre‑emption in respect of agricultural land … shall vest.” Section 14, in turn, provides that no person other than one who, at the date of sale, was a member of the same agricultural tribe as the vendor, shall have a pre‑emptive right over agricultural land sold by a member of an agricultural tribe. The term “agricultural tribe” mentioned in section 14 is defined in section 3(4) of the Act as having the meanings assigned to it under the Punjab Alienation of Land Act, 1900. It is also apparent that section 15 employs the phrase “in respect of agricultural land”, and the expression “agricultural land” is defined in the Act as follows.

The Act defines “agricultural land” in section 3(1) as land described in the Punjab Alienation of Land Act, 1900, as amended by Act 1 of 1907. The definition expressly excludes any mortgagee’s rights, whether usufructuary or not, in the land. Section 6 of the Act provides that a right of preemption exists in respect of agricultural land and village immovable property. However, every such right is subject to all the provisions and limitations contained in the Act. Section 23 states that no decree may be issued in a preemption suit involving the sale of agricultural land until the plaintiff satisfies the court on two points. First, the plaintiff must show that the sale contravenes the Punjab Alienation of Land Act, 1900. Second, the plaintiff must demonstrate that he is not disqualified by the provisions of section 14 from exercising the preemptive right. By virtue of the Adaptation of Laws (Third Amendment) Order, 1951, the Punjab Alienation of Land Act, 1900, was repealed. The counsel for the appellant argued that the repeal of that Act rendered the preemptive right created by section 15(a) unavailable. The reasoning was that section 6 alone recognises and grants the preemptive right, while section 15 merely describes the circumstances in which the right arises. Section 6 provides that the right applies to agricultural land and that it is subject to every provision and limitation contained in the Act. Before the amendment, the Act imposed two principal limitations on the preemptive right concerning agricultural land. First, the right applied only to land that was defined as agricultural land in the Punjab Alienation of Land Act. Section 14 limited the class of persons who could claim the right to those who were members of the same agricultural tribe group as the vendor. The expression “member of an agricultural tribe” was defined by the Punjab Alienation of Land Act. Consequently, section 15 was subject to the limitations of section 14 and to the definitions of ‘agricultural land’ and ‘agricultural tribe’. When read together with the mandatory provision in section 23, the scheme became wholly inapplicable and unworkable after the Punjab Alienation of Land Act, 1900, was repealed. The issue therefore depended on how the various provisions would be construed after the repeal of the Punjab Alienation of Land Act, 1900. One thing was clear: the authority that effected the repeal of the Punjab Alienation of Land Act did not

The Court first observed that the Punjab Act 1 of 1913 itself had been repealed, and therefore it was necessary to examine how the repeal of the Punjab Alienation of Land Act of 1900 affected each provision of the later legislation. Regarding the definition of “agricultural land” found in clause 8.3(1), the Court explained that when an earlier statute is incorporated by reference into a subsequent statute, the repeal of the earlier law generally does not alter the construction or operation of the later law in which it was incorporated. The Court cited the authority of Brett, L.J., in Clarke v. Bradlaugh, observing that “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.” Consequently, the Court held that the repeal of the Punjab Alienation of Land Act of 1900 did not affect the continued operation of the Preemption Act, and the term “agricultural land” in the later Act must be read as if the definition contained in the alienation Act had been physically inserted into it. The Court then recalled the definition of “Land” contained in section 2 of the Punjab Alienation of Land Act, as amended by Act 1 of 1907, which described land as property not occupied as the site of any building in a town or village, and which is occupied or let for agricultural purposes, for purposes sub‑servient to agriculture, or for pasture, and includes … . The Court noted that there was no dispute that the land which formed the subject of the pre‑emption claim in the present appeal satisfied that definition. Turning next to the effect of the repeal on section 14 of the Act and on the definition in paragraph 3(4) of the expression “member of an agricultural tribe,” the Court examined the impact on the pre‑emptive right conferred by section 15(a). The Court observed that with the repeal of the Punjab Alienation of Land Act of 1900, section 14 would lose all significance, although this loss did not aid the arguments advanced by counsel for the appellant. The Court explained that section 14 was a restrictive provision: it limited the right of pre‑emption to a specific group of persons identified as members of an agricultural tribe. By repealing the alienation Act, the restriction imposed by section 14 regarding the availability of the pre‑emption right to particular agricultural tribes would disappear. In other words, the removal of the limitation in section 14 would cause the opening words of section 15 to cease to operate. Because post‑Constitution law does not recognize tribal membership as conferring any special rights, the elimination of section 14 would leave section 15 without the limitation originally imposed upon it, rendering section 14 itself meaningless.

The Court observed that once the Punjab Alienation of Land Act was repealed, the limitation placed on the issuance of decrees by section 23 could no longer operate. Consequently, the Court would be left with full authority to grant decrees under the remaining provisions of the Act, free from the constraints that section 23 had previously imposed. The Court therefore concluded that neither the repeal of the Punjab Alienation of Land Act, 1900 nor the consequent removal of the restrictions found in sections 14 and 23 altered the substantive right created by section 15 for persons who satisfy its conditions. Having reached that conclusion, the Court turned to the principal issue raised by counsel for the appellant, namely that the pre‑emptive right granted to a pre‑emptor constituted an unreasonable restriction on a vendor’s constitutional right “to hold and dispose of property” and on the right of prospective purchasers to acquire property, both of which are guaranteed to Indian citizens by Article 19(1)(f) of the Constitution. Before addressing the constitutional validity of clause 15(a) of the Act, the Court noted that section 15 had been substantially amended by the Punjab Preemption (Amendment) Act of 1960 (Act 10 of 1960). The Court stated that this amendment did not affect the present appeal because the relevant amended text of section 15 reads: “15. (1) The right of preemption in respect of agricultural land and village immovable 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 wording, the Court found it unnecessary to decide in this appeal whether the amending Act applied retrospectively or to what extent, observing that such a question would be determined only in Civil Appeal No. 510 of 1961. The Court acknowledged that it is an established point of agreement that the statutory pre‑emptive right imposes a restriction on the vendor’s “right to hold and dispose of property,” a right protected by Article 19(1)(f). The remaining question, therefore, is whether that restriction is reasonable and serves the public interest within the scope of Article 19(5). The Court recalled that the impact of Article 19(1)(f) on pre‑emptive rights had been exhaustively examined in the judgment of this Court in Bhau Ram v. Baij Nath (1) (1) (1952) Supp. 3 S.C.R. 724, and that there was no need to revisit that analysis. The appropriate approach, the Court said, is to assess whether the purposes articulated for the provision are reasonable when judged against contemporary standards and the present needs of the community, and whether they advance the general public interest. The Court further noted that the reasonableness of the restriction embodied in section 15 of the Act had been considered by a Full Bench of the High Court of Punjab in Uttam Singh v. Kartar Singh (1), and that those grounds had subsequently received approval in later decisions of the Punjab High Court and were relied upon by counsel for the respondent.

The Court of Punjab, in Uttam Singh v. Kartar Singh (1), identified several objectives underlying sections 15 and 16 of the Act. Subsequent decisions of the Punjab High Court have endorsed those objectives, and learned counsel for the respondent relied upon them before this Court. The relevant passage was therefore extracted in full: “It is plain that the objects underlying s. 15 and s. 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 in this passage to “the promotion of public order and domestic comfort” and to “private and public decency and convenience” is clearly relevant to the urban immovable‑property matters dealt with in s. 16. The citation (1) A. 1. R. 1954 Punjab 55 identifies the source of these grounds. When assessing the reasonableness of the pre‑emption right granted by law for agricultural property under s. 15, the first four objectives above appear to be pertinent. However, considerable emphasis cannot be placed on “avoiding chances of litigation and friction,” because the existence of a pre‑emption right may itself generate litigation that would not otherwise arise. Likewise, the ground of “avoiding fragmentation of holdings” does not support a son’s claim to pre‑empt a sale by a sole owner‑father, as that consideration primarily concerns co‑sharers and similar situations. Consequently, the grounds that justify upholding s. 15(a) as reasonable and in the public interest ultimately reduce to two: (1) preserving the integrity of the village and its community, and (2) implementing the agnatic rule of succession.

The objective of preserving village integrity is prima facie reasonable and aimed at furthering the general public’s interest. Learned counsel for the appellant, however, argued that the massive migration of population into Punjab following the upheaval of partition has led to the disintegration of traditional village communities. In that circumstance, the appellant submitted, the pressing need is not to exclude outsiders from rural areas but to integrate them into the village community, and a law that prevents such integration cannot be deemed reasonable or in the public interest. While this submission carries some weight, this Court is not persuaded to accept it as a definitive answer to the challenge against the provision’s reasonableness. The Court observes that the schemes for the rehabilitation of refugees have taken the principle of village‑community integrity into account and have employed methods that maintain a degree of cohesion within each village, thereby reconciling refugee settlement with preservation of the community. Even if the first ground were insufficient to sustain the constitutionality of the provision, the second ground—ensuring that the next in line of succession retains the property within the family—remains sufficient to render the restriction reasonable and in the public interest under Article 19(5).

The Court observed that the policy aimed at preserving the integrity of the village community and at maintaining a reasonable degree of cohesion among the inhabitants of each village. It noted that this principle had been taken into account in the schemes used to settle various groups of refugees in different parts of the Punjab, and that through those schemes it had become possible to balance the requirements of the refugees with the need to protect the cohesion of the village community. The Court added that, even if this consideration alone could not sustain the constitutional validity of the provision in question, another consideration – namely that the person who succeeded next in line should be given a reasonable opportunity to retain the family property – was sufficient to render the limitation reasonable and to bring it within the scope of Article 19 (5) of the Constitution. In support of this view the Court referred to the decision of the Rajasthan High Court in Siremal v. Kantilal, where the judges had declared a clause of the Marwar Pre‑emption Act unconstitutional because it granted a pre‑emptive right to every person related within three degrees of the vendor, without limiting the right to members of the immediate family. The Rajasthan Court held that such a broad grant constituted an unreasonable restriction on the freedom of trade and occupation guaranteed by Article 19 (1)(f). The Court then explained that, after the amendment effected by Act 10 of 1960, Section 15 of the same Act confined the right of pre‑emption to members of the family of the vendor – that is, to those persons who would have succeeded to the property if no alienation had taken place. The relevant portion of Section 15 (1) after amendment was quoted in full, beginning with the provision that, where the sale is by a sole owner, the first right of pre‑emption vests in the son or daughter or the son’s son or daughter’s son of the vendor, followed by the brother or brother’s son of the vendor, then the father’s brother or father’s brother’s son, and so on.

The Court further noted that, although the son and other family members might not possess a current proprietary interest in the land that had been alienated, they nonetheless enjoyed a legitimate expectation of eventually succeeding to that property. This expectation, the Court said, was rooted in the collective consciousness of the community and was reinforced by the strong sentimental attachment that people in Punjab traditionally placed on continued family ownership of land. Accordingly, the Court concluded that, given the social awareness that engendered such expectations and the deep emotional value attached to family property, it could not be said that the limitation on the absolute right of free alienation was unreasonable or contrary to the public interest. The restriction, therefore, was deemed to be a permissible reasonable regulation under Article 19 (5).

In the first appeal, the Court observed that the restriction imposed by section 15(1)(a) of the Punjab Pre‑emption Act, which limited the right of pre‑emption to a narrow group of close relatives of the vendor, was either unreasonable or contrary to the public interest. Consequently, the appeal was dismissed and the appellant was ordered to pay costs. The appeal, numbered Civil Appeal No. 147 of 1961, arose from a transaction in which the appellant, Dalip Singh, had acquired agricultural land measuring ninety‑eight bighas and ten biswas in the village of Bailerkha, District Sangrur, under a registered deed dated 1 June 1957. The vendors in that deed were Nihal Singh, Wazir Singh and Gurdial Singh, who appeared as respondents 2, 3 and 4. Subsequently, Sunder Singh, who was the brother of respondents 2 and 3 and the uncle of respondent 4, instituted a suit for pre‑emption before the Sub‑Judge of Narwana, invoking section 15(a) of the Act. The Court noted that, even after amendment, a person in the position of the first respondent retained a statutory right to pre‑empt. It explained that, under the original wording of section 15(a), the pre‑emption right was vested in persons who would become heirs of the vendor upon his death, effectively granting an option to family heirs to retain the land. Referring to its earlier decision in Appeal 139 of 1961, the Court reiterated that the provisions of section 15(a), both in their original and modified forms, did not offend the reasonableness requirement of Article 19(5) of the Constitution. Because the constitutionality of section 15(a) was the sole issue that could be raised in this appeal, and the Court rejected the challenge, it concluded that the appeal must fail and ordered its dismissal with costs.

The second matter, Civil Appeal 510 of 1961, concerned a suit filed by the first respondent for pre‑emption of agricultural land situated in the village of Fatehabad, Amritsar district. The disputed sale had been effected by a deed dated 29 December 1949 in favour of the appellant, Singh. The plaintiff‑respondent based his claim on the “thirdly” provision of clause (c) of the Punjab Pre‑emption Act, 1913. The term “estate” used in that clause was not defined within the Act itself; however, by virtue of section 3(6) the definition contained in section 3 of the Punjab Land Revenue Act, 1887 (Act XVII of 1887) applied. Section 3 of that Revenue Act defined an “estate” to include, among other things, any area for which a separate record of rights had been created. The plaintiff‑respondent asserted that he owned land within such an “estate,” whereas the appellant denied any ownership of land in that locality. The defendant, while not contesting the plaintiff’s ownership of land in the village or the correctness of the “estate” classification, attempted unsuccessfully to demonstrate that he also possessed land in the same village and estate. Because the plaintiff’s claim fell squarely within the statutory language, the trial Court ruled in his favour on 8 November 1951, and both the subsequent appeal and second appeal were dismissed. The present appeal to the Supreme Court was therefore premised on the constitutional validity of the provision in section 15 of the Pre‑emption Act upon which the respondent relied for his pre‑emption claim.

In the factual matrix before the Court, the appellant was held not to own any land in the village in question, whereas the defendant, without disputing that the plaintiff owned land in the village and that the land formed part of an “estate,” attempted but failed to establish that he also owned land within the same village and “estate.” Because the plaintiff’s claim fell squarely within the language of the statute, the trial court decreed in favour of the plaintiff on 8 November 1951, and both the first appeal and the subsequent second appeal were dismissed. The present appeal arose from that judgment of the High Court, and the principal question on which leave to appeal was granted concerned the constitutionality of the provision in section 15 of the Preemption Act on which the respondent based his claim to preempt. Regarding the constitutional validity of section 15(c) “thirdly,” the Court noted that the matter was directly addressed in the earlier decision of this Court in Bhau Ram v. Baij Nath (1) where the Court upheld the validity of the pre‑emptive right granted under Chapter XIV of the Berar Land Revenue Code (Appeal 430 of 1958). The Court then referred to the definition of an “estate” under section 3 of the Punjab Land Revenue Act of 1887 and to the provisions of section 61 of the same Act, which read: “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: Provided that (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 sub‑section (1) may have reference to any single estate or to any class of estates or estates generally in any local area.” From this wording it was clear that an “estate” functioned as a unit of assessment and that the owners of land within the estate bore joint and several liability for the full assessment payable on that estate. Although the situation was not exactly that of a co‑sharer, the joint liability for land‑revenue made the relationship akin to a co‑shareholder arrangement. Consequently, the Court concluded that imposing a restriction on the vendor’s right in such circumstances was a reasonable measure and did not offend Article 19 of the Constitution. When the counsel for the appellant requested additional time to determine whether a notification under section 61 of the Punjab Land Revenue Code had been issued, the Court granted an adjournment to allow the appellant to produce any such notification, if it existed.

It was reported to the Court that no notification under the relevant provision existed. Consequently, if the factual position were governed solely by the law as it stood in section 15 of the original Act, the appeal would necessarily have to be dismissed. Nevertheless, the legislature of Punjab subsequently introduced substantial changes to the Punjab Preemption Act of 1913 by enacting Punjab Act 10 of 1960, and the effect of those later amendments upon the rights of the parties in the present appeal required examination. Punjab Act 10 of 1960 obtained the Governor’s assent on 2 February 1960 and was published in the Punjab Government Gazette on 4 February 1960. Under section 4 of the amending statute, the earlier section 15 of the principal Act was repealed and replaced with a new provision that omitted the pre‑emptive right previously afforded to persons “owning land in the estate,” a right that had been set out in subsection 15(c) of the original enactment. To give the amendment retrospective effect, the legislature inserted a new section 31 into the principal Act, which provided: “No court shall pass a decree in a suit for preemption whether instituted before or after the commencement of the Punjab Pre‑emption (Amendment) Act, 1959, which is inconsistent with the provisions of the said Act.” It should be noted that the reference to 1959 in section 31 is evidently a typographical error; the correct year of the amending Act is 1960. The matter now before the Court is whether, because of this legislative amendment, the respondent may retain the benefit of the decree that he obtained under the earlier statutory scheme. The Court recognized that section 31 is expressly retrospective and that it was intended to affect pre‑emptive rights that had accrued prior to the commencement of the amending legislation. In plain language, section 31 makes the substantive provisions of the amended Act applicable to suits brought either before or after the Act’s commencement. Counsel for the appellant submitted that, given the clear wording of section 31, the Court should apply the amended substantive law of section 15 and set aside the pre‑emption decree that had been granted to the first respondent. In support of that position, counsel cited the Federal Court’s decision in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, indicating the approach the Court should adopt when giving effect to amending legislation that interferes with the rights of parties in pending appeals, and also referred to the Punjab High Court’s Division Bench judgment in Ram Lal v. Raja Ram, wherein the judges, after construing section 31, set aside a pre‑emption decree in favour of the respondent and gave effect to the provisions of Punjab Act 10 of 1960. The appellant’s counsel, identified only as Mr. Achhru Ram, concluded his submissions.

The counsel for the respondent argued that the wording of the newly inserted section 31 was not sufficient to allow an appellate court to set aside a decree that had been granted in favor of a pre‑emptor merely because the basis on which the pre‑emption claim had been made and the decree had been issued did not fall within the matters covered by the amended provisions. He relied on the well‑known principle that, in the absence of explicit language, a statute is not to be given retrospective effect that would prejudice existing rights, except where the statute deals with procedural matters. In addition, he cited the rule that a statute should not be interpreted as having a greater retrospective operation than is strictly necessary from its language. The counsel contended that although the phrase “Suit for preemption instituted before or after the commencement of the Act” in section 31 suggested some degree of retrospective application, such retrospectivity was only partial. He stressed that the opening words of the section, “no decree shall be passed,” indicated a prohibition solely on the making of a decree. He explained that a decree might be made either when a trial court passes a decree or when an appellate court, reviewing a trial‑court decision that should have resulted in a decree, is itself called upon to pass the decree. Consequently, he argued that where a trial court had already passed a decree that conformed to the law as it existed at the time of that decree, the language of section 31 did not empower an appellate court to overturn that decree on the ground that the Amending Act had introduced a new substantive rule. While the Court recognized the presumption against retrospective operation of statutes and the accompanying principle that a statute should not be construed to have a broader retroactive effect than its language demands, it concluded that in the present matter the language of section 31 was clear and all‑encompassing. The Court held that an appellate court must give effect to the substantive provisions of the Amending Act, whether the appeal challenges a decree granting pre‑emption or a decree refusing such relief. The Court further observed that the decision of the Federal Court in Lachmeshwar Prasad v. Keshwar Lal, upon which the appellant’s counsel relied, fully addressed the issue, as that case concerned the duty of a court when an amending statute enacted after a decree was passed nevertheless required the decree to be treated as subject to the new law.

The Court observed that the decree that was being appealed had been passed in a manner that adversely interfered with the respondent’s rights before the Court. The learned judges held that the provisions of the Act were clearly retrospective and therefore had to be applied to the decree that constituted the subject‑matter of the appeal. Accordingly, the appeal was allowed and the matter was remitted to the High Court so that effect could be given to the new legislation.

Mr Achhru Ram, appearing for the respondent, argued that the language of section 7 of the Bihar Money‑Lenders Act, 1939 – which had been the subject of construction before the Federal Court – was worded differently and possessed a broader amplitude. Section 7 read: “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.” Counsel stressed that, unlike section 31 of the Act presently under consideration, the Bihar provision made specific reference to “appeals” and “revisions,” and submitted that this distinction was material.

The Court, however, found that the difference was illusory. It noted that it was undisputed that section 31, even according to the respondent, had to be given effect not only by a trial court but also by an appellate court. The counsel’s suggestion that an appellate court could give effect to the amending Act only in cases where the trial court had refused a decree for pre‑emption was rejected. No distinction could be sustained on the ground that the Bihar Act expressly mentioned “appeals” and “revisions” because the operative words in section 7 – “no Court shall pass a decree” – were identical to those in section 31 of the present Act. Moreover, the Court’s reasoning was founded on the nature of an appeal under Indian procedural law, characterising it as a rehearing rather than merely a court of error. It held that when an appeal is filed the finality attached to the trial‑court decree disappears, and even when an appellate court dismisses an appeal it is, in effect, passing a decree. In this regard, the Court considered the reasoning and conclusion of the Punjab High Court’s Division Bench in the Ram Lal case as correctly elucidating the principles governing the scope of an appeal and the construction of section 31 of the amending Act.

In this matter the Court noted that the earlier decision reported in Raja Ram (1) correctly set out the principles that determine the extent of an appeal and also provided the appropriate construction of section 31 of the Amending Act. The Court further explained that no argument was advanced stating that, if the provisions of section 15 as amended by Punjab Act 10 of 1960 were applied, the decree that had been entered in favour of the respondent could have been sustained. Accordingly, the Court held that the correct outcome was to allow the present appeal, to set aside the decree that had been granted to the respondent, and to dismiss the respondent’s suit for pre‑emption. The Court then turned to the effect of subsequent legislation, referring specifically to the authority cited as (1) (1960) 62 P.L.R. 291, and observed that the appellant’s success was obtained only because of the operation of that later legislative amendment. In view of these circumstances the Court directed that no order as to costs should be made in respect of the appeal. Accordingly, appeals numbered 139, 147 and 214 were dismissed, while appeal number 510 was allowed.