S.S. Chadha, J.
(1) The principal question of law raised in this appeal under Clause X of the Letters Patent is the right of male lineal decendants to impugn an alienation of Bhumidari Rights granted under the Delhi Land Reforms Act, 1954, based on the customary law applicable to the proprietors of agricultural land before the enforcement of the said Act. It has arisen in these circumstances.
(2) Hukam Singh son of Jit Ram is the real brother of Narain Singh, Ramesh Chander is the son of Marain Smgh. They are Jats by caste and dependant solely on agriculture. Hukam Singh and Ramesh Chander, respondents I and 2 herein (plaintiffs in the suit) filed on August 29, 1962 a suit for declaration to the effect that the mortgage without possession dated June 27, 1962 for a consideration of a sum of Rs. 8,000.00 , registered on June 30, 1962, executed by Narain Singh respondent No. 3 herein (defendant No. 2 in the suit) in favor of Nathu appellant before us (who is defendant No. 1 in the suit) regarding one-half share in land measuring 109 bighas 12 bids was as mentioned in para 2 of the plaint of the suit situated in village Dichaon Kalan. Delhi (for short called the land in suit) is without consideration and without legal necessity. The land in suit was planded to be ancestral qua the plaintiffs and defendant No. 2. The suit was based on the rule of custom that the immediate male lineal decendants could impugn an alienation on the ground that it was without legal necessity and as such, did not in any way affect the rights of the plaintiffs. The trial court, after contest of the suit by the parties, held that Hukam Singh and Narain Singh were owners in equal shares of the land in suit: that originally Jit Ram, an ancestor of the parties, was the owner of the land in suit and that when he died in 1948 it devolved upon Hukam Singh and Narain Singh, and thereafter Bhumidari rights in the land in suit were conferred on them under the provisions of Delhi Land Reforms Act 1954 (for short called the Act) and Delhi Land Reforms Rules, 1954 (for short called the Rules) as they were then in cultivating possession of the land in suit. It was found that the parties are governed by customary law under which a male owner cannot alienate property which is ancestral, except for legal necessity. It was also found that the provisions of the Act did not abrogate the rules of customary Jaw. The trial Court further held that the mortgage deed was executed by Narain Singh for a consideration of Rs. 7,700.00 only and that a sum of Rs. 3,700.00 was proved to have been paid to Nathu by Narain Singh for legal necessity. As a resuit of these findings, the trial Court by its judgment and decree dated September 2, 1964 granted a decree for declaration to the effect that tin; land mortgaged by Narain Singh in favor of Nathu by the mirtgage deed dated June 27, 1962, registered on June 30, 1962'is without consideration to the extent of Rs. 300.00 and is without legal necessity except to the extent of Rs. 3,700.00 and as such, is against the provisions of the customary law and is ineffective against the rights of the plaintiffs and other reversioners who are entitled to redeem the la'd on payment of Rs. 3,700.00 .
(3) Nathu in the first appeal assailed the findings of the trial Court on questions of fact but they were affirmed except to the extent that the amount proved to have been paid for legal necessity was Rs. 3,800[- and not Rs. 3,700.00 . On the question of law it was argued that in view of the provisions of the Act and the Rules allowing a Bhumidar the rights of transfer of Bhumidari rights, the custom governing the parties in matters of alienation that ancestral land could not be alienated without legal necessity stood abrogated. The first appellate Court found that Narain Singh was the owner and in cultivating possession of the land in suit at the time of enforcement of the Act and for that reason declared as a Bhumidar, that he could not have acquired any new right and would as such be governed by the custom in the matter of restrictions on alienations and that custo- mary law in force is not inconsistent with the provisions of the Act. The appeal was partly allowed by judgment and decree dated October 10, 1965 in favor of Nathu by modifying the order of the trial Court to the effect that the plaintiffs would be entitled to redeem the land in suit on the d^ath of Narain Singh on payment of Rs. 3,800.00 and that the mortgage affected by Narain Singh in favor of Nathu shall bind them only to that extent and not further.
(4) In the second appeal the contention raised on behalf of Nathu was that the incoming of the Act caused a repeal by force of Section 2(1)(vi) of the Act of the rule or custom on which the suit filed by the plaintiffs was based, as that rule of custom fell in the category of those laws which were inconsistent with the provisions of the Act. The submission was that the Act is a complete code by itself and provides specifically how the Bhumidari rights are acquired and in what manner they can be transferred and that there is no restriction in the Act on the powers of a Bhuimidar to create a mortgage without possession without legal necessity. The learned Single Judge construed, probably, on the arguments addressed on behalf of the plaintiffs, the provisions of Articles 13, 366 and 372 of the Constitution of India and came to the conclusion that the custom having the force of law at the time of the commencement of the Constitution did achieve the protection provided by Article 372 and there is nothing in the Act inconsistent therewith. It was ruled that the custom which allows the immediate male lineal descendents to challenge the alienation on the ground of want of legal necessity is 'law' imposing reasonable restrictions on the rights given by Article 19(f) of the Constitution and is protected by sub-article (5) thereof. It was found 'that the custom pleaded rooted in antiquity is an ancient uniform rule of law ensuring with all its force that the male lineal descendents will in turn cultivate the' same agricultural land to continue existence and survival of the family in the unit 'village', that a mortgage without pos session may result into an ultimate disposal of the property and that the rule of custom is reasonable because it hampers wanton alienation of property by a male holder thereof who may deliberately resort to it it his immediate male lineal descendent for any reason incurs his disaffection, anger or illwill'. The rule of custom pleaded was thus held to operate as a rule of law and which has the protection of Article 372 of the Constitution of India and is from every engle a reasonable restriction. With these findings the appeal was disissed. An application for leave to file the Letters Patent Appeal was filed and allowed on August 10, 1972 by the learned Single Judge. Hence this appeal before us.
(5) We were taken through the various provisions of the Act in support of the main contention by Shri Mahesh Chander, learned counsel for the appellant, that the Act has abolished the ownership of agricultural land by the previous proprietors and if any agricultural land was part of a holding of a proprietor, he becomes a Bhumidar of it or if it was a part of a holding of some other person, such as tenant or sub-tenant, he becomes either a Bhumidar or an Asami as provided in the statutory provisions which is a complete code by itself. The Act further provides the manner of transfer and the method of devolution, says the counsel, but there is no restriction on the power of a Bhumidar to transfer his holding even without legal necessity. The submission further is that by force of Section 2(1)(vi) of the Act the customary law governing the parties in the matter of alienation has been abrogated,, as it is inconsistent with the provisions of the Act. The submission of Mr. Rameswar Dial, learned counsel for the respondents besides relying upon the reasoning of the learned Single Judge, on the other hand by comparing the provisions of Sections 4, 5 and 6 with those of Sections 7 and 8 of the Act is that there is no acquisition of the ownership rights of the proprietors of the agricultural land in contrast to the case of acquisition of certain specified rights of proprietors under Section 7 and still maintaining the proprietory rights in private wells, trees in abadi and buildings by foce of Section 8. When Bhumidari rights are conferred instead of ownership rights, it is also a property, says the counsel, capable of becoming joint family property or co percanary property subject to same control by the personal law including customary law of the holder of that right. The customary law governing the parties in the matter of alienation placing restrictions on the right of a transfer without legal necessity is argued to be not inconsistent with the provisions of the Act, and, thereforee, has not been repealed by force of Section 2(1)(vi) of the Act.
(6) In order to appraciate the rival contentions, the Scheme of the Act may now be analysed. The preamble of the Act says that it was intended 'to provide for modification of Zamindari system so as to create a uniform body of peasent proprietors without intermediaries, for the unification of the Punjab and Agra systems of tenancy laws in force in the State of Delhi and to make provision for other matters connected therewith'. The preamble of a statute can be considered as a key to the construction of the statute. It shows that the object of the Act was to modify the Zamindari system and to unify the Punjab and Agra systems of tenancy laws etc. As would be obvious by reading various provision of the Act, the modification by the Act was the abolition of the ownership in the agricultural land and conerment of new rights upon individual proprietors. The preamble clearly indicates that the object and purpose of the Act is to do away with all intermediaries. The Government of a country is guided by a certain set policy. The legislative wing of the Government puts this policy in the enactment. The ; statute is, thereforee, a structural device through which the legislature expresses its intention and lays down a binding rule of conduct. The legislative intent can to some extent be ascertained from the statement of objects and reasons which indicate the nature of the reforms brought about in the Act. An extract there from runs as under :
'A Land Reforms Committee consisting of Members of State Legislature and an M.P. was soon set up. After careful consideration and examination of the complex problems involved it was decided that while unifying the two existing systems of tenure, the Zmindari system should be disintegrated by divesting the Zamindars, who are merely a body of peasant proprietors of some of their rights and placing them more or less on the same levels of tenants with security of tenure. At the same time the tenants should be given opportunities to rise to the level of peasant proprietors so that the resultant picture be one of a democratic peasantry. It was also decided that in view of the Zamindars being petty proprietors and the State being so small, a direct and simple method for the payment of compensation to the Zamindars should be evolved as it would not be possible for the State to undertake the elaborate and expensive procedure of acquiring the rights. title and interest from the proprietors for monetary considerations and then reforming the tenancy system after realisations from tenants for securing them better rights.'
(7) We may also find out the legislative intent from the term of the Statute. 'Holding' has been defined in Section 3(11 a) meaning in respect of Bhumidar or Asami, or tenant or sub-tenant under the Punjab Tenancy Act, 1887, or the Agra Tenancy Act, 1901, or lease under the Bhoodan Yagna Act, 1955, a parcel or parcels of land held under one tenure, lease, engagement or grant ; and in respect of proprietors, a parcel or parcels of land heid as Sir or Khud-kasht. Section 3(12A) defines 'Khudkasht as meaning land (other than Sir) cultivated by a proprietor either by himself or by servants or by hired labour (a) at the commencement of the Act, or (b) at any time during the period of five years immediately before the commencement of the Act, whether or not it was so cultivated at such commencement, provided that it has not, at any time after having been so cultivated, been let out to a tenant. Section 4 provides the classes of tenure and sub-tenure. namely, 'Bhumidar' and 'Asami'. The effect of Section 4 is that a person can either be a Bhumidar (one class of tenure holder) of an agricultural land or he could be an Asanii (one class of sub-tenure holder). There- could be no other kind of right in the agricultural land. It is implicit in these provisions that there is abolition of the ownership rights in the agricultural land and new rights are recognised for the purposes of the Act. A person belonging to any of the classes enumerated in Section 5 becomes a Bhumidar and has all the rights and is subject to all the liabilities conferred or imposed upon a Bhumidar by or under the Act. Section 5 then mentions the classes of persons : (a) a proprietor holding Sir or Khudkasht land, a proprietor's grove holder. an occupancy tenant under Section 5 of the Punjab Tenancy Act, 1887, paying rent at revenus rates or a person holding land under Patta Dawami or Istmrari with rights of transfer by sale, who are declared Bhumidars on the commencement of the Act, (b) every class of tenants other than those referred to above and sub-tenants who are declared Bhumidars on the commencement of the Act; or (c) every person who, after the commencement of the Act, is admitted to land as Bhumidar or who acquires Bhumidari rights under any provisions of the Act. A person belonging to any of the classes enumerated in Section 6 becomes an Asami and has all the rights and is subject to all the liabilities conferred or imposed upon an Asami by or under the Act. Classes of persons are then particularised in sub-sections (a) to (e). Section Ii provides that the Deputy Commissioner shall declare as Bhumidars persons holding the specified lands, namely, (a) Khudkasht land or a proprietor's grove in the tracts to which the Punjab Tenancy Act, 1887 is applicable or Sir land or Khudkasht land or a proprietor's grove in the tracts to which the Agra Tenancy Act, 1901 is applicable and (b) land held by occupancy tenants under Section 5 of the Punjab Tenancy Act, 1887, with right of transfer by sale, and (c) land held under Patta Dawami or Istemrari by tenants with right of transfer by sale. Section 13 provides that the Deputy Commissioner shall also declare the specified classes of tenants as Bhumidars, who shall, with effect from the same, have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidars under the Act. Then the classes of the tenants are detailed therein Section 154 of the Act deals with the vesting of certain lands in the Gaon Sabha. According to it all lands whether cultivable or otherwise, except land for the time being comprised in any holding or grove tc. situated in Gaon Sabha Area shall vest in the Gaon Sabha. It is, thereforee, clear that as from the date of the declaration of Bhumidari rights, the person in whose favor the Bhumidari rights are granted becomes a new tenure holder enjoying all the rights conferred under the Act and subject to all the liabilities imposed by the Act. The interest in land conferred upon a Bhumidar is not proprietory right which has been abolished, but a new right declared under the Act. The actual tillers of the soil became Bhumidars. whether they were proprietors or occupancy tenants of the class mentioned in Section 5 of the Act. The classes of tenants enumerated in Section 13 of the Act were also declared as Bhumidars having all the rights conferred by the Act and subject to all the liabilities imposed under the Act. No distinction has been made in the Act or the Rules in the rights and liabilities of the Bhumidars on the basis of classification of the persons entitled to be declared as Bhumidars. The rights which were possessed by the classified occupancy tenants in Section 5 or other classes of tenants mentioned in Section 13 were different rights than those possessed by the proprietors holding Sir or Khudkasht land before the commencement of the Act. Yet on declaration of Bhumidari Rights, they are governed by the same set of rights and same set of liabilities, they are thus special rights created under the Act. Any incidence attached to the rights before the commencement of the Act could not perculate to the new rights conferred under the Act.
(8) To put it in other words a combined reading of the statutory provisions referred to above show that the proprietors of agricultural land ceased to exist and instead a new class of tenure holders called Bhumidar and subtenure holders called Asamis came into existence. The provisions referred to above make it clear that a certain class of tenants became Bhumidars and certain class of proprietors became Bhumidars if they were in self cultivatory actual possession of agricultural land. Certain other persons became Asamis. A person could either be a Bhumidar or an Asami and there is no other class of proprietors or tenure holders of the agricultural land after coming into force of the Act. The proprietors of each village had certain rights in waste land, pacture land of common utility etc. By force of Section 7, there is acquisition of these rights of the properietors and they vest in the Gaon Sabha and compensation is paid to the proprietors for that. Even though there is no acquisition of the rights of the proprietors in the agricultural land, the policy underlying the provisions of the Act is to abolish ownership and to confer new rights. The virus of the Statute are not open to challenge as the Act is in the Ninth Schedule to the Constitution. The legislature could pass a law abolishing ownership in the land of the proprietors and instead be declared Bhumidars, resulting in the deprivation of the compensation. Section 8 of the Act further provides that all private wells in or outside holdings all tanks, grovers and abadis, all trees in abadi and all building situate within the limits of an estate belonging to or held by a proprietors tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such proprietor, tenant or person, as the case may be, on such terms and conditions as may be prescribed by the Chief Commisoner. Except to this limited extent of certain rights in private wells, trees in abadi and buildings, the proprietors of agricultural land as such ceased to exist after the Act came into force.
(9) In 'Haiti v. Sunder Singh', : 2SCR163 , some provisions of the Act came up for consideration in order to determine the maintainability of the suit by a civil court for a relief for declartion of Bhumidari rights. It was ruled as under :
'SECTIONS 6, Ii, 13 and 154 of the Act read together, thus, show that, after the Act came into force, proprietors of agricultural land as such ceased to exist. If any land was part of a holding of a proprietor, he became a Bhumidar of it. If it was part of a holding of some other, such as a tenant or a sub-tenant etc.. he became either a Bhumidar or an Asami. whereupon the rights of the proprietor in that land ceased. Lands, which were not holdings of either the proprietor or any other persons, vested in the Gaon Sabha, In the case of proprietors, their rights in the land continued to exist only in respect of holdings which, under the definition, must have been either their Sir or Khudkasht at the commencement of the Act. If it was not Sir or Khudkasht of a proprietor. it would not be his holding and. consequently, such land would vest in the Gaon . Sabha under Section 154. the result of which would be that the rights of proprietor would be extingished. It appears that it was in view of this scheme of the Act that, under Section 84, the right to institute a suit for possession was granted only to a Bhumidar, or an Asami, or the Gaon Sabha. The Act envisaged only these three classes of persons who would possess rights in agricultural land after the commencement of the Act. Proprietors as such having ceased to exist could not, thereforee institute a suit for possession. .....'
(10) The general consequences of the termination of intermediatries rights are provided in Sections 15 to 21 of the Act. The rights of the Bhumidars or the Assamis for the use of land and improvements are contained in Sections 22 to 30 of the Act. A Bhumidar of Asami, subject to the provisions of the Act, has the right to exclusive possession of the land comprised in his respective holding and to use land for any purpose connected with agriculture, horticulture or animal husbandly which includes pisciculture and poultry farming and to make any improvement. Then there are restrictions to the use of holding for industrial purposes except with the prior sanction and ultimate reversion to agriculture. Restrictions have been placed on the right of a Bhumidar and an Asami in making improvement's or doing any toes detrimental to any land. The right to compensation for improvement made by an Asami and the determination of the amount of compensation are also provided. The provisions relating to transfer by Bhumidars and Asamis are contained in Sections 31 to 37. Under Section 31 the interest of Bhumidar is transferable subject to the conditions therein contained. The interest of an Asami is not transferable except as expressly permitted by the Act. Section 33 lays down the restrictions on the transfers by a Bhumidar. Section 34 permits only simple mortgage of land by a Bhumidar. It provides that 'no Bhumidar shall have the right to mortgage any land belonging to him as such where possession of the mortgaged land is transferred or is agreed to be transferred in future to the mortgage as security for the money advanced or to be advanced.' Under Section 35 a Bhumidar or an Asaimi is debarred from effecting a lease of his land except in the cases provided for in Section 36. Section 36 permits leases only in cases of disabled persons. The manner of devolution of interest of a Bhumidar or an Asami is provided in Sections 48 to 54 of the Act. Under Section 4S, a Bhumidar is permitted to bequeath his holding or any part thereof except as provided in sub-section (2). Sub-section (2) says that 'no Bhumidar entitled to any holding or part in the right of a widow, mother, unmarried daughter, or unmarried sister, may bequeath by will such holding or part'. No Asami has the right to bequeath his holding or part thereof. General order of succession from sales is provided in Section 50 of the Act. It says that when a Bhumidar or Asami being made dies, his interest in his holding shall devolve in accordance with the order of succession indicated in Section 50.
(11) These provisions and various other provisions of the Act show that a Bhumidar does not have an unrestricted interest in the agricultural land which was held by him before the commencement of the Act as an owner or proprietor. After the commencement of the Act and the declaration of the Bhumidari rights, he is only given the right to use the agricultural land in a particular manner as specified in the statutory provisions. There are restrictions laid down on the rights of a Bhumidar to create leases. Bhumidar cannot transfer possession of the land. Bhumidar is obliged to use the land for agricultural purposes. A Bhumidar is only a tenure holder having lost the right of ownership on agricultural land after the commencement of the Act. There is, however, a great security of the tenure under the Act. Bhumidari rights are, thereforee, special rights created on the abolition of the ownership of the agricultural land and are controlled and regulated by the provisions of the Act. The language of Section 5 of the Act shows that a Bhumidar has all the rights and is subject to all the liabilities conferred or imposed upon a Bhumidar by or under the Act. The rights to the tenure holder are granted under the provisions of the Act. The restrictions imposed on the rights of a Bhumidar are also by or under the Act. There is no warrant to travel outside the Act and the Rules for further restrictions in the right or manner of transfer of the Bhumidari rights. Section 34 of the Act, permits simple mortgage of land by a Bhumidar. This right is granted to tenure holder under the Act. Reading any further restriction by involving the customary law would come in conflict with the right granted under the Act. Any such impediment would be inconsistent with the provisions of the Act. The rule of custom pleaded and upheld by the Courts below in this case is inconsistent with the provisions of the Act. The inconsistent rule having the force of Jaw stands repealed by Section 2(1)(vi) of the Act.
(12) In 'Ram Mehar V. Mst. Dakhan', I.L.R. (1972) Delhi 922, a question arose before a Division Bench of this Court as to whether the rule of succession in the Act or the Rule of succession in the Hindu Succession Act, 1956 governed the parties. If the Hindu Succession Act applied, then the plaintiff and the defendant in that case had to succeed to their late father as co-heirs each entitled to an equal share. If the Act was to apply, then the succession had to be according to the provisions of Section 50 of the Act according to which an unmarried daughter succeeds to a Bhumidar only if there is no superior heir. The Division Bench examined the preamble of the Act, the object and reasons to ascertain the nature of the reform brought about by the Act and various provisions of the Act to come to the conclusion that the Act provides for the prevention of the fragmentation of agricultural holdings and also, at the same time, fixed ceil ings on agricultural holdings and also dealt with the devolution, of tenancy rights of such holdings. It was held that the only type of tenancy existing in agricultural land after the passing of the Act is denoted by the new tenure holdings, Bhumidars and Asamis though the rights of Bhumidars were somewhat different from tenants under the previous law but they did not become owners and, thereforee, were held to be nothing more than tenants with certain additional rights. It was then held that the law of devolution of tenancy rights on the holdings was saved by Section 4(2) of the Hindu Succession Act and was not repealed by the provisions of the Hindu Succession Act. That meant that the rule of succession governing Bhumidars was to be found in Section 50 of the Act and not in the Hindu Succession Act, 1956.
(13) A question also arose under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short the U.P. Act) to the right of transfer of each members of the loint Hindu family of his interest in bhumidari land and as to whether the provisions of Hindu Law relating to restriction on transfer of co-parcenary land i.e. existence of legal necessity, applied. That was in 'Ram Awalamb V. Jata Shankar', : AIR1969All526 (1). In an earlier case of Rana Sheo Ambar Singh V. The Allahabad Bank Ltd', : 2SCR441 (2). their Lordships held that bhumidari right under the U.P. Act was a new right conferrd upon an intermediatory and thereforee, it could not be sold in execution, of a mortgage decree passed against the intermediatory in respect of zamindari property in which bhumidari land was held as Sir land. It was ruled that the interest, in land conferred upon Bhumidars was a new right and, thereforee, the question whether or not prior to the conferment of such rights, the intermediatory or tenant had heritable or transferable right in land was hardly material. Analysing the provisions of the U.P. Act and following the Supreme Court, a Full Bench of the Allahabad High Court held that the right of transfer of each member of the joint Hindu family of his interest in Bhumidari land was controlled only by Section 152 of U.P. Act and by no other restriction. The provisions of Hindu Law relating to restriction on transfer of co-parcenary land, e.g. existence of legal necessity, was held as not applicable. In our opinion there is no material difference between the bhumidari rights declared and granted under the Act and the bhumidari rights declared under the U.P. Act. The only difference is that under the U.P. Act all rights, title and interest of all intermediatories in every estate and in all sub-soil in each State was specifically stated to vest in tile State on acquisition and what was conferred by Section 18 of U.P. Act was a new right which the person on whom it had been conferred never had and that they held it subject to the provisions of U.P. Act. Whether the extinguishment of the proprietory right in the agricultural land by the owners was by the method of acquisition and vesting in the State as adopted in the U.P. Act or by the method of abolition of the ownership under the Act, effect is the same. It is the cessation of the interest of all intermediatories in the agricultural land. The bhumidari rights are then declared under the Act and are made subject to all the rights and liabilities conferred or imposed upon a bhumidari by or under the Act.
(14) The result of the above discussion is that the right of transfer of interest by a Bhumidar of its bhumidari rights in the agricultural land is controlled only by the provisions of the Act. The provisions of the customary law relating to restrictions on transfer do not apply to the transfer of bhumidari rights. The appeal succeeds and is allowed. The impugned judgments and decrees are hereby set aside and the suit of the plaintiffs is dismissed leaving the parties to bear their own costs throughout.