Alfred Henry Lionel Leach, C.J.
1. The respondent was married to the appellant's son, Konjeti Narayana, who died on the 17th March, 1939. The father was joint with his son and they were the only coparceners. On the 3rd April, 1939, the respondent filed a suit in the Court of the District Munsiff of Gurzala for a partition of the family estate. She based her claim on the rights conferred upon her by the Hindu Women's Rights to Property Act, 1937. An asset of the family consisted of a lease of 11.13 acres of agricultural land for a period of 20 years, commencing from the 3rd March, 1934. One of the questions raised in the suit was whether the plaintiff was entitled to a half interest in this lease. The defendant contended that the Indian Legislature had no power to legislate with regard to agricultural land and therefore the Act could not be read as conferring upon the plaintiff an interest in the lease. At the time of the trial the Federal Court had not given its decision in In re the Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938 and In re a Special Reference under Section 213 of the Government of India Act, 1935.1 In that reference the Federal Court held that these Acts did not operate to regulate succession to agricultural land in the Governors' Provinces, but operated to regulate devolution by survivorship of property other than agricultural land. The District Munsiff held that the Act was intra vires the Central Legislature and consequently the plaintiff was entitled to a half share in the lease as well as to a half share in all the other properties of the joint family. The defendant appealed to the Subordinate Judge of Guntur. By that time the Federal Court had delivered its judgment in the case referred to. The Subordinate Judge held, however, that the judgment did not affect the right of the plaintiff to a half share in the lease. The lessor was indebted to the family in the sum of Rs. 400. He was not able to repay the amount, but in satisfaction of the debt he granted to the joint family the right to occupy and enjoy the 11.13 acres of land for a period of 20 years. In these circumstances, the Subordinate Judge regarded the lease as representing a debt due to the family and on this footing dismissed the appeal except as regards one item. The defendant has now appealed to this Court.
2. Before the Subordinate Judge it was suggested that the interest created on the 3rd March, 1934, was more in the nature of a mortgage; but this is not the real position. The interest created was undoubtedly that of a lessee, the consideration for the lease being the Rs. 400 which the lessor owed to the family; and we shall deal with the appeal on this basis; although in passing we may say that the same considerations would appear to arise even if the document constituted a mortgage and not a lease.
3. Entry 21 of the Provincial Legislative List of the Government of India Act, 1935, confers upon the Provincial Legislatures of Governors' Provinces the right to legislate with regard to:
land, that is to say, rights or in over land, land tenures, including the relation of landlord and tenant, and the collection of rents, transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonisation Court of Wards; encumbered and attached estates; treasure trove.
In the Concurrent Legislative List there are these relevant entries :
Entry 7 : Wills, intestacy and succession, save as regards agricultural land.
Entry 8 : Transfer of property other than agricultural land; registration of deeds and documents.
Entry 10 : Contracts, including partnership, agency, contracts of carriage, and other special forms of contract, but not including contracts relating to agricultural land.
4. The Federal Court held that in this state of affairs the Central Legislature had no power to legislate with regard to succession to agricultural land in Governors' Provinces. Agricultural land was exclusively a Provincial subject. The question then is whether any distinction can be drawn between corporeal and incorporeal rights in agricultural land. In our judgment, there cannot, and if any support for this opinion is needed we think that it is to be found in the following passage from the judgment of the Federal Court in Megh Raj v. Allah Rakhia Megh Raj v. Bahadur:
the expression ' agricultural land' has not been defined in the Constitution Act. It must accordingly be understood in the sense which it ordinarily bears in the English language. In the judgment of the High Court, the definition of ' land' in the English Interpretation Act, 1889, has been quoted. It is unnecessary to refer to it here, because it was conceded before us on both sides that in the Constitution Act ' land ' comprises both corporeal and incorporeal rights and interests.
It is true that in that case there was no contest on the question, but it is difficult to see how there could be any contest. Parliament could never have intended to give a Provincial Legislature the exclusive power of legislating with regard to corporeal rights in agricultural land and withholding from it the power of legislating with regard to incorporeal rights in such property. It follows that in our judgment the Hindu Women's Rights to Property Act, 1937, did not confer upon the plaintiff any interest in the lease in question, because the Legislature which passed it had no power to legislate with regard to leases of agricultural land. It may be added that the Calcutta High Court expressed a similar opinion in Khantomayee v. Rukmini.
5. The appeal must be allowed but as it has been confined to the matter of this lease, the rest of the decree passed by the Subordinate Judge will stand. The appellant will have his costs in this Court, and in the Courts below he will have further costs based on the value of the lease.