Skip to content


Parasappa Nagappa Walikar Vs. Chandrawwa and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Tenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 818 of 1972
Judge
Reported inAIR1975Kant87; ILR1974KAR671; 1974(2)KarLJ82
ActsConstitution of India - Articles 107(2) and 254; Hindu Minority and Guardianship Act, 1956 - Sections 6 and 8(2); Mysore Land Reforms Act, 1962 - Sections 2, 2(17), 21(1), 21(2), 24 and 138; Mysore Land Reforms Act, 1961 - Sections 21; Hindu Law; Hindu Succession Act, 1956 - Sections 6 and 30; Motor Vehicles Act; Essential Commodities Act - Sections 7; Industrial Disputes Act, 1947 - Sections 6J, 6K, 6L, 6M, 6N, 6O, 6P, 6Q, 6R(2) and 25-J
AppellantParasappa Nagappa Walikar
RespondentChandrawwa and ors.
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateS.D. Chhatre, Adv.
Excerpt:
.....through proper channel under the provisions of panchayat raj act. petitioner cannot directly make representations to the revenue authorities in the light of the resolution passed by the gram panchayath. writ petition is mis-conceived. - the term 'natural' guardian has been defined under section 4(c) of the central act to mean any of the guardians mentioned in section 6. section 6 of the central act states who are the natural guardians of a hindu minor in respect of the minor's person as well as in respect of the minor's property excluding his or her undivided interest in the joint family property. when the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with..........no authority to lease out the suit land for a period of 10 years so far as the half share of the minor plaintiffs 1 and 2 is concerned since such an alienation offends the provisions of section 8(2) of the hindu minority and guardianship act 1956, and is therefore not binding on them. it is also alleged that the said lease deed is detrimental to the interests of the minor plaintiffs and therefore not binding on their half share in the suit property. defendant 1 pleaded that in pursuance of the lease deed executed by the natural guardian of the plaintiffs, he was put in possession of the property as sub-tenant. defendant 2 supported the case of defendant 1. the trial court decreed the suit declaring that the lease deed dated 1-4-66 is not binding on the half share of the plaintiffs 1.....
Judgment:

1. Defendant 1 is the appellant, Respondents 1 and 2 are plaintiffs 1 and 2, and respondents 3 and 4 defendants 2 and 3. Plaintiffs 1 and 2 are minors represented by their maternal uncle as the next-friend. Plaintiff 3 is the mother of plaintiffs 1 and 2. The three plaintiffs instituted a suit for a declaration that the lease deed dated 1-4-1966 executed by the third plaintiff along with defendant 2 in favour of defendant 1 is not binding on the plaintiffs, or on such of the plaintiffs as may be found not bound by it and for joint possession of their 3/4th share along with defendant 1, or of such share to which they or any of them may be found entitled to with future mesne profits etc. Plaintiff 3 is the step-mother of defendant 2, The husband of plaintiff 3, Baji Rama Pundenawar, died on 3-3-1966 at Algur leaving behind him plaintiffs 1 to 3 and defendant 2 as his heirs. This Baji was the statutory tenant of Sy. No. 12/3 of Sanal in Jamkhandi Taluk belonging to defendant 3. The plaintiffs claim that on the death of Baji, his tenancy rights devolved on the plaintiffs and defendant 2, under Section 24 of the Mysore Land Reforms Act (Act X of 1962). Plaintiffs 1 and 2 were minors at the time of their father's death. According to the plaint allegations, plaintiff 3 was in a depressed mood and unable to understand the consequence of her action and taking advantage of such mental condition of hers, the 1st defendant, in collusion with the second defendant, induced the third plaintiff to execute a registered lease deed dated 1-4-1966 in his favour for a period of 10 years. Since fraud was practised on her by defendants 1 and 2, the said lease deed is not binding on the 3rd plaintiff. It was also alleged that the third plaintiff had no authority to lease out the suit land for a period of 10 years so far as the half share of the minor plaintiffs 1 and 2 is concerned since such an alienation offends the provisions of Section 8(2) of the Hindu Minority and Guardianship Act 1956, and is therefore not binding on them. It is also alleged that the said lease deed is detrimental to the interests of the minor plaintiffs and therefore not binding on their half share in the suit property. Defendant 1 pleaded that in pursuance of the lease deed executed by the natural guardian of the plaintiffs, he was put in possession of the property as sub-tenant. Defendant 2 supported the case of defendant 1. The trial Court decreed the suit declaring that the lease deed dated 1-4-66 is not binding on the half share of the plaintiffs 1 and 2 and that the plaintiffs are entitled to joint possession of their half share in the suit property along with defendant 1 and directed an enquiry into future mesne profits from the date of suit till the plaintiffs 1 and 2 got joint possession. The suit against defendants 2 and 3 was dismissed. Defendant 1 appealed. The Lower Appellate Court concurred with the finding of the trial Court that the interests of the minor plaintiffs 1 and 2 are not affected by the lease deed by virtue of Section 8(2) of the Hindu Minority and Guardianship Act, and the same is not binding on their share in the suit property. It dismissed the appeal.

2. Both the lower Courts have held that the plaintiffs have not established the fraud alleged by them in securing the lease deed from the third plaintiff. There is no reason to interfere with that finding.

3. Mr. Joshi, appearing on behalf of the appellants, however, contended that the sub-lease created by the lease deed, Ext. D-1, executed by the third plaintiff is valid under the provisions of Clause (1) of Section 21 the Mysore Land Reforms Act, and that the provisions of Section 8(2) of the Hindu Minority and Guardianship Act cannot override the provisions of the State Act. His contention is that the Mysore Land Reforms Act having been enacted in exercise of the powers of the State Legislature under Item 18 of the State List of Schedule VII of the Constitution of India, and the Hindu Minority and Guardianship Act, 1956 having been enacted by Parliament under the powers conferred on it under Item 5 of the Concurrent List, the State Act should prevail over the Central Act as provided in Clause (2) of Article 254 of the Constitution, since the State Act had been reserved for consideration of the President and has received his assent. As against this Mr. Chhatre contended, firstly, that Section 8(2) of the Hindu Minority and Guardianship Act has no application to the present case, and that even if it does apply, there is no repugnancy between Section 8(2) of the Central Act and Section 21 (2) of the State Act.

4. The relevant portion of Clause (1) of Section 21 of the Mysore Land Reforms Act, 1961 (hereinafter referred to as the Mysore Act) reads as follows:

'21. Sub-division, sub-letting and assignment prohibited--

****'

It is the case of the plaintiffs that the deceased Baji was a member of the joint family of himself, his wife and his daughters (Plaintiff 3, plaintiffs 1 and 2 and defendant 2), and that the wife and daughters are the surviving members of the said family and are therefore entitled to partition and sub-divide the land leased to Baji. Under Clause 2 (a) of Section 21, it is provided that notwithstanding anything contained in Sub-section (1), it shall be lawful for a tenant who is a minor, a widow etc., to sub-let such land held by her or him as a tenant. It is the contention of appellant-defendant 1 that plaintiff 3 could validly execute the suit lease deed for a period of 10 years to bring about a sub-lease in respect of the shares of the minor also in the suit land under Sub-clause (a) of Clause (2) of Section 21. The word 'joint family' has been defined under Section 2 (17) of the Mysore Act to mean, in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence. Under Section 8(2) of the Central Act, it is provided that the natural guardian of a minor governed by Hindu Law shall not transfer any part of the immovable property of the minor for a term exceeding more than one year beyond the date on which the minor will attain majority, without the previous permission of the Court. It is admitted that no such previous permission has been obtained in the present case. The term 'natural' guardian has been defined under Section 4(c) of the Central Act to mean any of the guardians mentioned in Section 6. Section 6 of the Central Act states who are the natural guardians of a Hindu minor in respect of the minor's person as well as in respect of the minor's property excluding his or her undivided interest in the joint family property. Hence, the prohibition contained in Section 8(2)(a) applies only with respect to a minor's property other than his or her undivided interest in the joint family property. It is the contention of the plaintiffs that the statutory right of tenancy which vested in Ban does not upon his death constitute an undivided interest of his minor daughters in the joint family property. Their contention is that the right vested in the daughters of Baji does not constitute their undivided interest in a joint Hindu family and therefore, the bar under Section 8(2)(a) of the Central Act does apply. According to the commentary in Mulla's Hindu Law, 13th Edn. page 246, joint family property according to Hindu Law is either ancestral property or separate property of coparceners. The term 'joint family property' is synonymous with 'coparcenery property.' The incidents of of joint family or coparcenery property are that in which every coparcener has a joint interest and a joint possession. The following are the main incidents of joint family or coparcenery property.

(a) it devolves by survivorship, not by succession; this proposition must now be read in the context of Sections 6 and 30 of the Hindu Succession Act, 1956, in cases where those sections are applicable.

(b) it is property in which the male issues of the coparceners acquire an interest by birth.

According to the pleading, the case of the plaintiffs is that Baji was a statutory tenant and hence under Section 21 (1) of the State Act the wife and daughters of the deceased tenant are entitled to partition and sub-divide the land leased by virtue of the said statutory provision. But for this statutory provision they would not be entitled to this right. There is no plea in this case that the right of tenancy possessed by Bail during his lifetime was the joint family property of himself and his wife and daughters. Hence it must be held that the share of the minor plaintiffs 1 and 2 in the tenancy right in respect of the suit land is not an undivided interest in the joint family property referred to in Section 6 of the Central Act. Hence, the restriction on the powers of a natural guardian under Section 8 of the Central Act does apply. Since the period of lease exceeds five years, the sub-lease created under Exhibit D-1 was one beyond the powers of the natural guardian, namely, the third plaintiff, as far as the shares of the minor plaintiffs are concerned.

5. It is therefore, necessary to consider whether there is repugnancy between Section 8(2)(b) of the Central Act and Section 21 (2) (a) of the State Act. The three principles which have to be applied in considering whether there is repugnancy between two statutes have been held to be the following in Deep Chand v. State of U. P., : AIR1959SC648 .

(1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive Code in respect of the subject-matter replacing the Act of the State Legislature; and

(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field. It was held in that case that the amended Act occupied the same field in respect of the schemes, under the Motor Vehicles Act initiated after the Amending Act and therefore to that extent the State Act must yield place to the Central Act, but that the same cannot be said of the schemes framed under the U. P. Act before the Amending Act came into force. It was further held that the identity of the field may relate to the pith and substance of the subject-matter and also the period of its operation, and that when both coincide, the repugnancy is complete and the whole of the State Act becomes void. This was no doubt a decision under Article 254(1) of the Constitution but this same principle applies to the interpretation of Clause (2) of Article 254 when the question of repugnancy between a State Act which has received the assent of the President and the Central Act arises. The provisions of Article 254(2) of the Constitution fell for interpretation in Zaverbhai v. State of Bombay, : [1955]1SCR799 and it was observed as follows: 'The important thing to consider with reference to this provision is whether the legislation is in respect of the same matter. If the later legislation deals not with the matter which formed subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no application. The principle embodied in Section 107 (2) and Article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.'

Section 7 of the Essential Commodities Act, a Central Act, was held to be a comprehensive Code covering the entire field of punishment for offences under the Act, graded according to the commodities and to the character of the offence. The subject of enhanced punishment that is dealt with by the said Act was limited to the case of hoarding of food grains. It was held that the Central Act is a legislation in respect of the same matter as the State Act and that the question of punishment for contravention of orders both under the Central and State Acts constitute a single subject-matter and cannot be split up. It was further stated that the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together then the earlier is repealed by the later enactment, would be equally applicable to a question under Article 254(2) of the Constitution where the further legislation by Parliament is in respect of the same matter as that of the State law. In U. P. Electric Supply Co. v. R. K. Shukla, : (1969)IILLJ728SC both the State and the Union were competent to legislate with respect to the same field of legislation, namely in the matter of lay off retrenchment. By adding Section 25-J(2) it was enacted that under the Industrial Disputes Act, 1947, the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be deter-mined in accordance with the provisions of Chapter V-A of that Act whereas under Section 6-R (3) of the corresponding U. P. Act it was enacted that the rights and liabilities of employers and workmen relating to lay off and retrenchment shall be determined in accordance with the provisions of Sections 6-J to 6-Q. It was held that the relevant provisions of the two Acts on the matter in controversy were not materially different and that by virtue of Article 254(2) of the Constitution, Section 6-R (2) of the U. P. Act prevailed notwithstanding any prior law made by the Parliament.

5-A. The following rule of interpretation has been stated in Craies on Statute Law, 7th Edn. at page 377:

'The general maxim is, generalia specialibus non derogant -- i.e., general provisions will not abrogate special provisions. When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special pro-vision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.'

6. The Mysore Act deals with the relationship between landlords and tenants in respect of agricultural lands. Section 21 (1) of the Mysore Act deals with a case in which the tenant dies and provides that the surviving members of his family, if he was a member of a joint family, and his heirs, in other cases shall be entitled to partition and sub-divide the land leased. Under Clause (2) it is lawful for a minor tenant to sub-let the land held by him or her as a tenant. These two provisions apply to persons governed by the Hindu Law as well as to other persons in view of the definition of the term 'joint family' in Section 2, Clause (17) of the Mysore Act. But Section 8(2)(b) of the Central Act deals with the personal law as applicable to Hindus and persons governed by the Hindu Law and not to others. The subject-matter of the Central Act deals with the personal law as applicable to Hindus and persons governed by the Hindu law; whereas the Mysore Act deals with the relationship of landlord and tenant as applicable to agricultural property. Hence, it cannot be said that both the Acts operate in the same or identical field. Section 8(2)(b) of the Central Act is a special provision applicable to transactions entered into by the natural guardian of a minor governed by the Hindu Law. Section 21 (2) (a) of the Mysore Act is a general provision applicable to the sublease which can be effected by among other persons mentioned therein, a minor irrespective of the fact whether he is governed by the Hindu Law or not. Hence, the general provision cannot be construed as overriding the special provision. Therefore, it cannot be said that there is repugnancy between the provisions of Section 8(2)(b) of the Central Act and Section 21 (2) (a) of the State Act. Hence Section 8(2)(b) must be held to apply to the cases of a minor governed by the Hindu Law when he or she sub-lets land held by him or her as tenant under Section 21 (2) (a) of the Mysore Act. The sub-lease contemplated under Section 21 (21 (a) must be read as subject to the provisions of Section 8(2)(b) of the Central Act, where the minor is a person governed by the Hindu Law as contemplated under the Central Act. Thus read, there is no conflict between the said two provisions of the Central Act and the State Act.

7. Mr. Joshi relied on Section 138 of the Mysore Act, wherein it is provided that the Act shall have effect notwithstanding anything inconsistent therewith contained in any other enactment with respect to matters enumerated in List II and List III of the VII Sch, to the Constitution of India, and contended that the State Act must prevail over the Central Act in relation to sub-letting by a minor tenant of the land held by him. But this provision must be read subject to Article 254(2) of the Constitution of India. Under Article 254(2) of the Constitution the State Act will prevail over the Central Act only in case of repugnancy. Since there is no repugnancy as noted above Section 138 does not advance the case of defendant 1 any further,

8. The lower Courts were therefore justified in holding that the lease deed executed by plaintiff 3 on their behalf is not binding on their half share in the suit property. The lower Courts, however, have granted a decree for joint possession of their half share in the suit property along with the first defendant. But the first defendant is a stranger to the family of the plaintiffs. Hence, they are not entitled to joint possession along with defendant 1. Therefore, that part of the decree of the lower Courts relating to joint possession of the half share of the plaintiffs in the suit property along with defendant 1 is set aside. Consequently, that part of the decree directing enquiry into future mesne profits is also set aside. In other respects, the decree of the Lower Appellate Court is confirmed.

9. This appeal is therefore partly allowed as above stated. The parties shall bear their own costs in this appeal.

10. Appeal partly allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //