S.K. Mal Lodha, J.
1. Against the appellate judgment and decree dated November 26, 1971 of the Additional District Judge, Sri Ganganagar. the plaintiff has come up in appeal to this Court under Section 100 of the Code of Civil Procedure. The plaintiff's suit for possession of land against the defendant No. 2 on preferential right to acquire it on payment of purchase money of Rs. 10,000/- was decreed by the learned Additional Civil Judge, Sri Ganganagar on March 31, 1971 and it was dismissed against the seller (defendant No. 1).
2. As this appeal raises an important question of law regarding interpretation and scope of Section 22 of the Hindu Succession Act (No. XXX of 1956) (for short 'the Act' hereafter), only those facts which are necessary for its determination are stated below:
The plaintiff-appellant and defendant No. 1 (respondent No. 2) are real brothers. The plaintiff has stated that they are co-owners and co-sharers of the agricultural lands situate in village 1 A. M. P. described in para 3 of the plaint, The land in suit had devolved on them after the death of their father through intestate succession. Defendant No. 1 sold the land in suit to defendant No. 2 (respondent No. 1) for Rs. 10,000/-. The plaintiff had no knowledge about the same. The case of the plaintiff is that he being co-sharer and co-owner of the landin suit along with defendant No. 1, he has a riant to acquire it from defendant No. 2 by way of pre-emption on payment of Rs. 10,000/-. It was claimed that as they had got this land from their father after his death through intestate succession, the plaintiff has a preferential right to purchase it in comparison to defendant No. 2. He, therefore, prayed for a decree for possession on the basis of the right of pre-emption. The suit was instituted on June 30, 1969 in the Court of the Civil Judge. Sri Ganganagar.
3.-4. Defendant No. 2 resisted the suit on various grounds. Suffice it to state for the decision of this appeal that it was denied that the plaintiff has a right to pre-empt the land in suit or that he has any preferential right to purchase it. The written statement was filed on September 16, 1969. A rejoinder was filed by the plaintiff on October 8. 1969. reiterating that the plaintiff is entitled to purchase this land through pre-emption and that at any rate, he has a preferential right.
5. After trial, the learned Additional Civil Judge, by his judgment dated March 31, 1971 decreed the plaintiff's suit against defendant No. 2 and dismissed it against defendant No. 1. It may be stated that the learned Additional Civil Judge decreed the suit on the basis of the findings on issue No. 1A. An appeal was preferred by defendant No. 2 and the learned Additional District Judge, Sri Ganganagar accepted the appeal, set aside the judgment and decree of the learned Additional Civil Judge and dismissed the plaintiff's suit, leaving the parties to bear their own costs throughout.
6. Before the learned Additional District Judge, on behalf of defendant No. 2, only two contentions were raised, which are as under;
(1) that the plaintiff has failed to fully prove that Amru died after the commencement of the Act and in the absence of such proof, Section 22 of the Act is not at all attracted.
(2) that even if it is found that Amru died after the commencement of the Act, Section 22 of the Act is not applicable to the case of agricultural land. The learned Additional District Judge recorded the following findings:
(1) that Amru, father of the plaintiff died on Jeth Sudi Poonam Smt. 2013(June 23, 1956) after the commencement of the Act, which came into force from June 17, 1956; and
(2) that Section 22 of the Act does not apply to the agricultural lands and the plaintiff has no preferential right to purchase the land in suit, In view of this, as stated above, the learned Additional District Judge accepted the appeal.
7. I have heard Mr. M. L. Shreemali, learned counsel for the plaintiff-appellant and Mr. Rajendra Mehta, learned counsel for the defendant-respondent No, 1 at some length.
8. Learned counsel appearing for the appellant did not dispute the findings of the learned Additional District Judge that Amru father of the plaintiff died after the commencement of the Act. It was also not agitated before me that Section 22(1) of the Act applies to completed transfers in view of Nagammal v. Nanjammal (1970) 1 Mad LJ 358 and Jaswant v. Smt. Basanti Devi, 1970 Cur LJ 833 (Punj).
9. In Sukhdeo Singh v. Sukhdeo Singh. 1980 WLN 212. it was held by a Division Bench of this Court that the right of pre-emption does not accrue upon the transfer of Khatedari rights in agricultural land by a Khatedar tenant. It was further observed as under:
'The right of pre-emption is a weak right as it introduces a restriction on the right to hold property and, therefore, it cannot be availed of unless it dearly flows from any statute. As discussed above, taking into consideration the entirety of the rights of a Khatedar tenant, we have come to the conclusion that a Khatedari tenant is not the owner of the holding under his occupation, though his rights may be larger than the rights of a Ghair Khatedar tenant.' The plaintiff, therefore, cannot pre-empt the agricultural lands in suit.
10. The contention raised by the learned counsel for the appellant is that the learned Additional District Judge has committed a serious error of law when he held that Section 22 of the Act) does not apply to the agricultural lands whereby denying a preferential right which he has under Section 22 of the Act. Undoubtedly this raises an important question regarding its interpretation and scope. In other words, the question that I am called upon to determine in this appeal is whether the words
'immoveable property of an intestate' include agricultural land of an intestate or not. To examine this question, it will be useful to read Section 22(1) of the Act and Entries Nos. 5 and 6 contained in List III (Concurrent List) and Entry No. 18 mentioned in List II (State List) of the Seventh Schedule of the Constitution. Section 22(1) of the Act is as under:
'22. Preferential right to acquire property in certain cases: (1) Where. after the commencement of this Act. an interest in any immoveable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class 1 of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) to (3).....
Explanation;-- In this Section, 'court' means the court within the limits of whose jurisdiction the immoveable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behelf.'
The aforesaid Entries read is under j
Entry No. 5: Marriage and divorce infants and minors; adoption; will, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.
Entry No. 6: Transfer of property other than agricultural land; registration of deeds and documents.
Entry No. 18: Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.
Section 22(1) of the Act occurs in Chapter II dealing with intestate succession which provides for a preferential right to acquire the interest proposed to be transferred. The word 'immoveable property has not been defined in Section 3 of the Act The Act was enacted by the Parliament for amending the lawrelating to intestate succession among Hindus. According to Entry No. 5, List III the Parliament and subject to Clause (1) of Article 246 of the Constitution, the legislature of the State have power to make laws in respect of marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of the Constitution, subject to their personal law. So also Parliament and subject to Clause (1) of Article 246 of the Constitution, the legislature of the State have power to make laws in regard to transfer of property other than agricultural land; registration of deeds and documents. Subject to Clauses (1) and (2) of Article 246 of the Constitution, the Legislature of the State has been empowered to make laws in respect of land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.
11. Mr. Rajendra Mehta, learned counsel for the respondent contended that Entry No. 6, List III makes it abundantly clear that the Parliament does not possess jurisdiction to legislate over agricultural lands beyond the power it has under Entry No. 5. List III, that is regarding 'devolution'. He, therefore, submitted that Section 22 of the Act will not cover the case of agricultural lands. On the basis of Sukhdeo Singh's case (1980 WLN 212) (Raj), Mr. M. L. Shreemali, learned counsel for the appellant urged that a Khatedar tenant is not an owner of a holding and, therefore, there cannot be any transfer of his or her interest in the property and when there is no question of transfer of his or her interest in the property, Entry No. 5. Last III is not attracted.
12. In Jassuram v. The State of Rajasthan. ILR (1962) 12 Raj 900 : (AIR 1963 Raj 72), a Division Bench of this Court held that Khatedari rights under the Rajasthan Tenancy Act (No. III of 1955) are property within the meaning of Article 31 of the Constitution and, therefore, the Khatedari rights are proprietary rights. Mr. Rajendra Mehta, learned counsel for the respondent, therefore, argued that they will includethe transfer of interest in the immoveable property within the meaning of Section 22 of the Act
13. In Nagammal's case ((1970) 1 Mad LJ 358), it was observed by a learned single Judge of the Madras High Court as follows ;
'When interpreting the Section, one can properly assume that Parliament had in mind the practice of pre-emption present in the country and the several pre-emption laws, A Legislature may be deemed to be conversant with the laws, current within its territory. But that will not permit the adoption of ths incidents of pre-emption recognised or provided for in other pre-emption laws, and in the Muslim law of pre-emption.
Parliament must have had in mind the two-fold aspect of the right in the preemption laws current in the country: (1) the primary or substantive right to have an offer made and (2) the secondary or remedial right of the co-heirs if the property is sold without being first offered to them to take it from the purchaser. Thus Parliament has emphasised upon the primary right of preemption and left the remedial right to the common law for the Courts to mould it according to the circumstances'.
It was held In re Hindu Women's Rights to Property Act, AIR 1941 FC 72 while considering Section 3 of the Hindu Women's Rights to Property Act, 1937 as follows :
'No doubt if the Act does affect agricultural land in the Governors' Provinces, it was beyond the competence of the Legislature to enact it; and whether or not it does so must depend upon the meaning which is to be given to the word 'property' in the Act. If that word necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to construe the word 'property' as referring only to those forms of property with respect to which the Legislature which enactedthe Act was competent to legislate; that is to say, property other than agricultural land. On this view of the matter, the so-called question of severability, on which a number of Dominion decisions, as well as decisions of the Judicial Committee, were cited in the course of the argument does not arise. Court does not seek to divide the Act into two parts, viz., the part which the Legislature was competent, and the part which it was incompetent, to enact. It holds that, on the true construction of the Act and especially of the word 'property' as used in it, no part of the Act was beyond the Legislature's powers. There is a general presumption that a Legislature does not intend to exceed its iuris-diction.
The question arose in Jothi Timber Mart v. Calicut Municipality, AIR 1970 SC 264 whether Section 126 of the Calicut City Municipal Act (Kerala Act No. XXX of 1961) is ultra vires. Entry No. 52, List II, Schedule VII. It was observed by their Lordships of the Supreme Court as under: 'When the power of the Legislature with limited authority is exercised in respect of a subject-matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution'.
In Jothi Timber Mart's case, their Lordships relied on In re Hindu Women's Rights to Property Act and held that the expression 'brought into the city' as used in Section 126 was, therefore, rightly interpreted by the High Court as meaning brought into the Municipal limits for purposes of consumption, use or sale and not for any other purpose. The principles enunciated in the above mentioned decisions of the Federal Court and the Supreme Court, in my humble opinion, afford useful guide for interpreting the words 'immoveable' used in Section 22 of the Act. Entry No. 6, List III takes out agricultural land from the ambit of immoveable property.
14. Section 22 of the Act came up for consideration in Jaswant's case (1970 Cur LJ 833) (Puni), in which, Entry No. 18, List II and Entries Nos. 5 and 6, List III were noticed and it was held that Section 22 of the Act does not embraceagricultural lands. I am in respectful agreement with this view and hold that the words 'interest in any immoveable property of an intestate' do not include the interest in the agricultural land of an intestate and as such, after devolution of an interest upon two or more heirs specified in Class I of the Schedule appended to the Act and on transfer of his or her interest in the agricultural land, other heirs have no preferential right to acquire the interest of the transferor. I have come to the conclusion that transfer of interest in agricultural land is not covered by Section 22 of the Act.
15. The net result of the discussion made hereinabove is that the view of the learned Additional District Judge that Section 22 of the Act does not apply to the case of agricultural land is correct and it is affirmed.
16. No other point was argued by any of the learned counsel for the parties.
17. For the reasons mentioned above, this appeal has no force and it is, accordingly, dismissed. In the circumstances of the case. I direct that the parties shall bear their own costs throughout.