Skip to content


Natesa Reddiar and anr. Vs. Saradhambal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1645 of 1974
Judge
Reported inAIR1979Mad223
ActsTamil Nadu Hindu Women's Right to Property (Extension to Agricultural Lands) Act, 1974; Hindu Women's Right to Property Act, 1937 - Sections 3; Hindu Women's Right to Property (Extension to Agricultural Lands) Act, 1947; Government of India Act, 1935; Pondicherry General Sales Tax Act, 1965; Madras General Sales Tax Act, 1959 - Sections 2(1)
AppellantNatesa Reddiar and anr.
RespondentSaradhambal and ors.
Cases ReferredKrishna Chandra v. Union of India.
Excerpt:
tamil nadu act, hindu women's right to property (extension to agricultural lands) act (xxvi of 1974)--by necessary implication adopted and incorporated central act, hindu women's right to property act (xviii of 1937) so as to include agricultural lands--hence act is valid. ; the first-respondent-plaintiff filed a suit against the appellant for partition and separate possession of her alleged 1/4th share in the suit properties which consisted of two houses and certain agricultural lands, as the widow of the deceased co-parcener. the appellants/defendants contended that the plaintiff cannot claim a share in the agricultural properties on the basis of the provisions of tamil nadu act xxvi of 1947 as the same was constitutionally invalid. both the courts below held that the alleged partition.....1. this second appeal has been posted before the full bench as the constitutional validity of the tamil nadu hindu women's right to property (extension to agricultural lands) act (act 26 of 1974) has been challenged by the appellants herein.2. the first respondent herein filed the suit o.s. no. 169 of 1971 on the file of the district munsif, kancheepuram seeking partition and separate possession of her alleged 1/4th share in the suit properties which consisted of two houses and certain agricultural lands. her case was that her deceased husband elumalai reddiar, defendants 3 and 4, one kannappa reddiar, the husband of the second defendant and father of the first defendant and one devendran were members of a hindu joint family, that the plaintiff's husband died in the year 1947, that.....
Judgment:
1. This second appeal has been posted before the Full Bench as the constitutional validity of the Tamil Nadu Hindu Women's Right to Property (Extension to Agricultural Lands) Act (Act 26 of 1974) has been challenged by the appellants herein.

2. The first respondent herein filed the suit O.S. No. 169 of 1971 on the file of the District Munsif, Kancheepuram seeking partition and separate possession of her alleged 1/4th share in the suit properties which consisted of two houses and certain agricultural lands. Her case was that her deceased husband Elumalai Reddiar, defendants 3 and 4, one Kannappa Reddiar, the husband of the second defendant and father of the first defendant and one Devendran were members of a Hindu Joint Family, that the plaintiff's husband died in the year 1947, that Devendran died in the year 1948 but that the family continues to be joint and therefore she is entitled to claim 1/4th share as the widow of the deceased co-parcener, Elumalai Reddiar.

3. The suit was resisted only by defendants 2 and 3. Their case was that after the death of the two co-parceners, Elumalai Reddiar and Devendran, there was a partition in the year 1948, that in that partition defendants 1 and 2 defendant 3 and defendant 4 were given a 1/3rd share each in the joint family properties and the plaintiff was given the income from survey No. 449/1 comprising of 90 cents towards her maintenance and that the plaintiff was a willing party to the said partition arrangement. They also contended that in any event the plaintiff cannot claim a share in the agricultural properties on the basis of the provisions of Tamil Nadu Act 26 of 1947 as the same is constitutionally invalid.

4. Both the courts below held, on a due consideration of the evidence adduced in the case, that the alleged partition in the year 1948 set up by the contesting defendants had not been proved and, therefore, the plaintiff being the widow of a co-parcener, is entitled to seek partition and separate possession of her husband's share in the joint family house properties by virtue of the Hindu Women's Right to Property Act, 1937 (Act 18 of 1937) and in the joint family agricultural lands under the Hindu Women's Right to Property (Extension to Agricultural Lands) Act (Act 26 of 1947).

5. In this second appeal the learned counsel seeks to challenge the concurrent findings of fact arrived at by the Courts below on the question as to whether there was an earlier partition as alleged by the contesting defendants in which the plaintiff is said to have agreed to receive maintenance from one parcel of land. However, we do not see how those findings could be challenged. We are satisfied that on the materials no other conclusion is possible. Therefore we have to proceed on the basis that the partition alleged by the defendants in the year 1948 has not been established and the joint family continued to be undivided on the date of the suit. That on this basis the plaintiff is entitled to claim a 1/4th share in the non-agricultural properties by virtue of Section 3 of the Hindu Women's Right to Property Act. 1937, hereinafter referred to as the Central Act, has not been disputed by the appellants. But the appellants dispute only the plaintiff's right to claim a 1/4th share in the agricultural lands under the provisions of the Tamil Nadu Act 26 of 1947, hereinafter referred to as the Tamil Nadu Act, on the ground that the said Act is constitutionally invalid and, therefore, the plaintiff cannot claim any rights thereunder. Therefore the only question to be considered now is whether the Tamil Nadu Act 26 of 1947 is constitutionally invalid.

6. Th appellants question the constitutional validity of the Tamil Nadu Act on three grounds: (1) That the Provisional Legislature in enacting Tamil Nadu Act 26 of 1947 had virtually abdicated its legislative power in favour of the central legislature by merely amending the definition of the word 'property' occurring in Central Act 18 of 1937 without making a separate legislation of its own on devolution of Agricultural property; (2) That Central Act 18 of 1937 having been invalidated with reference to agricultural lands by the Federal Court in. In re the Hindu Women's Right to Property Act (1941 FCR 12 (25)): (AIR 1941 FC 72) and Umayal Achi's case (AIR 1945 FC 25), Tamil Nadu Act 26 of 1947 is enacted to validate the Central Act with reference to its application to agricultural lands which the Provincial legislature had no competence to do, (3) That in any event the Provincial Legislature cannot directly amend the Central Act though it had the competence to legislate separately on devolution of agricultural lands.

7. Elaborating the first ground, Mr. Parasaran, learned counsel for the appellants submits as under: Though the Provincial Legislature had the competence to legislate on devolution of agricultural lands under Entry 21, List II of 7th Schedule to the Government of India Act, 1935, it had not chosen to legislate on the topic but was satisfied merely by extending the definition of property occurring in Central Act 18 of 1937 to agricultural land as well, and by so doing, the Provincial Legislature has abdicated its legislative functions and conferred its legislative power to the Federal Legislature, in that it not only failed to consider the necessity for any legislation on the topic but it has merely put its seal on a legislation made by the Federal Legislature. The effect of the amendment of the term 'property' occurring in the Central Act by the Tamil Nadu Act is that the Central Act with all its future amendments will have operation in the State of Tamil Nadu with reference to agricultural lands. Such acceptance by one legislative body of a legislation made by another legislative body with all its future amendments, without knowing the scope and ambit of such future amendments really amounts to an abdication of one's legislative power.

8. In support of the said submission, the learned counsel places reliance on a decision of the Supreme Court in Shama Rao v. Union Territory of Pondicherry . However, we do not see how that decision will be of any assistance to the appellants. In that case the Legislative Assembly of the Union Territory of Pondicherry passed the Pondicherry General Sales Tax Act, 1965 and it received the assent of the President on May 25, 1965. Section 1(2) of that Act provided that it would come into force on such date as the Government may be notification appoint. Section 2(1) provided that the Madras General Sales Tax Act, 1959 as in force in the State of Madras immediately before the commencement of the Act shall extend to and come into force in the Union Territory of Pondicherry subject to certain modifications and adaptations specified in that section. Sec. 2(2) provided that the Madras General Sales Tax Rules, 1959, and any other rules made or issued under the Madras Act were to apply to Pondicherry. The Pondicherry Government issued a notification dated March 1, 1966 bringing into force the Madras General Sales Tax Act, 1959 as extended by the Pondicherry Act to Pondicherry from 1-4-1966. In the meantime the Madras Legislature had amended the Madras Act and consequently it was the Madras Act as amended up to April 1, 1966 which was brought into force under that notification. It was contended before the Supreme Court that he Pondicherry General Sales Tax Act, 1965 which merely adopted the Madras General Sales Tax Act, 1959 as was in force as on April 1, 1966 was void and as the Pondicherry Legislature had abdicated its legislative function in favour of the Madras State Legislature by a wholesale adoption of the Madras Act as in force in the State of Madras immediately before the commencement of its Act, and that S. 2(1) read with S. 1(2) of the Pondicherry Act meant that the Pondicherry Legislature adopted the Madras Act not only as it was on May 25, 1965 when it adopted it but also with such amendment or amendments in that Act which might be passed by the Madras Legislature from May 25, 1965, the date of its adoption, till April 1, 1966,the date of commencement of its Act. The Supreme Court took the view that the Pondicherry Legislature not only adopted the Madras Act as it stood on the date of the passing of the Pondicherry General Sales Tax Act,1965 but also adopted all the amendments which the Madras Legislature may make to the Madras Act from the date of the Pondicherry General Sales Tax Act was passed till the Pondicherry Government may issue a notification of commencement, without knowing the nature and scope of such amendments, and that such adoption of future amendments to the Madras Act by the Pondicherry Legislature without knowing the nature of the amendments amounts to a total surrender in the matter of Sales Tax legislation by the Pondicherry Legislature in favour of the Madras Legislature and therefore the Act was void. We do not see how the principle laid down in that decision will apply here. While passing the Tamil Nadu Act 26 of 1947, the Provincial Legislature did not adopt either expressly or by necessary implication the future amendments to be made to the Central Act by the Central Legislature.

9. The learned counsel then submits that even if the Provincial Legislature did not expressly adopt the future amendments to the Central Act, the result of expanding the definition of 'property' in the Central Act will virtually result in the application of the Central Act with all its future amendments to agricultural lands in the Province of Madras. We cannot accept the said submission of the learned counsel as correct. Firstly Central Act 18 of 1937 was in fact not amended after 1947 till date. Therefore there is no question of the future amendments to the Central Act being applied to agricultural lands in the State of Tamil Nadu. Secondly it is not possible to assume from the mere adoption of the provisions of the Central Act by the Provincial Legislature that it will automatically result in the application of the Central Act as amended from time to time, to agricultural lands in Tamil Nadu. As has been held in Krishna Chandra v. Union of India there is no general principal which precludes either Parliament or a State Legislature from adopting an Act with its future amendments passed earlier by a State Legislature or Parliament, and incorporating them in its legislation and the Indian legislatures have never accepted any inhibition against or limitation upon enactment by incorporation as such. In State of M.P. v. M. V. Narasimhan the Supreme Court has clearly laid down

that where a subsequent Act incorporates provisions of an earlier Act, then the borrowed provisions become an integral part of the subsequent Act, and are totally unaffected by any repeal or amendment of the earlier Act, but that such a principle may not apply in exceptional cases such as (i) the subsequent Act and the previous Act are supplemental to each other. (ii) where the two Acts are in pari materia. (iii) where the amendment in the earlier Act if not imported into the subsequent Act also it would render the subsequent Act wholly unworkable and ineffective and (iv) where the amendment of the earlier Act either expressly or by necessary intendment applies to the provisions of the subsequent Act. It is, therefore, clear from the above decisions that mere adoption of the Central Act by extending the definition of property in that Act to cover agricultural lands in Tamil Nadu Act 26 of 1947 will not automatically mean that the Provincial Legislature has chosen to adopt all the future amendments to the Central Act as well. Apart from the fact that there was in fact no future amendment, there does not appear to any legislative intendment apparent from the provisions of Tamil Nadu Act 26 of 1947 to extend the provisions of the Central Act to agricultural lands in the State with all its future amendments. It is well established that in the absence of any intention on the part of the Legislature to adopt a law of another Legislature with all its future amendments, the usual and normal rule of construction will have to apply. where a statute is incorporated by reference into a second statute, any repeal or amendment of the first statute by a third does not affect the second as the incorporated provisions have become part of the second statute. As pointed out by the Supreme Court in Ram Sarup v. Munshi where tine provisions of an Act are incorporated by

reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. It is only in exceptional instances pointed out by the Supreme Court in State of Madhya Pradesh v. M. V. Narasimhan the repeal or amendment of the provisions of the Act which has been incorporated in the later Act will amount to repeal or amendment of the later Act, but not in all cases. We cannot, therefore, agree with the contention of the learned counsel for the appellants that the amendment of the definition of property in the Central Act by the Tamil Nadu Act will automatically result in the application of the Central Act of agricultural properties with all its future amendments and, there is no question of abdication or surrender of legislative functions in favour of the Central Legislature by the provincial Legislature in enacting Tamil Nadu Act 26 of 1947.

10. The learned Counsel further submits that the Provincial Legislature should have passed an independent legislation on devolution of agricultural lands, that it is not open to it to merely expand the definition of ' property' occurring in the Central Act and that such an expansion of the definition cannot be construed as an incorporation of the Central Act by the Provincial Legislature as part of its legislation. It is true, the Provincial Legislature in enacting Act 26 of 1947 has not expressly said that it is adopting or incorporating the Central Act as part of its Act. But the intention is obvious. The title to the Act clearly indicates that the Legislature has intended to extend Hindu Women's Right to Property Act, (Act 18 of 1937) to agricultural lands. The preamble also indicates that the object of the Act was to extend the operation of the Hindu Women's Right to Property Act 38 of 1937 to agricultural lands in the Province of Madras. Having regard to the object of the Act which is to extend the Hindu Women's Right to Property Act to agricultural lands, it could be taken that the Legislature intended to adopt the Central Act as part of its legislation, by amending the definition of 'property' occurring in the Central Act so as to include agricultural lands as well. We are not inclined to agree with the learned counsel for the appellants that the Provincial Legislature had to pass an independent law without reference to the Central Act if it wanted to legislate on devolution of agricultural lands. The provincial legislature can, in its descretion either make an independent law or adopt an existing Act passed by another Legislature if it considers that legislation suitable for its purposes. It is a well established legislative practice to adopt or incorporate in an Act the provisions of another Act for the purpose of convenient reference. In A. T. Corporation v. Asst. Collector, Customs the Supreme Court has observed (at p. 654).

"It is well accepted Legislative practice to incorporate by reference, if the Legislature so chooses, the provisions of some other Act in so far as they are relevant for the purpose of and in furtherance of the scheme and objects of that Act........."

Referring to Shama Rao's case relied on by the

appellants the Supreme Court in Gwalior Rayon Mills v. Asst. Commr. of Sales Tax :

"We think that the principle of the ruling in

(viz., Shama Rao) must be confined to the facts of the case. It is doubtful whether there is any general principle which precludes either parliament or a State Legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament, and incorporating them in its legislation. At any rate, there can be no such prohibition when the adoption is not of the entire corpus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose".

11. That the Legislature can if it so chooses, adopt the provisions of an existing Act and incorporate the same as part of its Act for purpose of convenience can no longer be in dispute. In Krishna Chandra v. Union of India it was pointed out:

"It is a far constitutional cry from this position to the other proposition that where Parliament has power to enact on a topic actually legislates within its competence but, as an abbreviation of drafting, borrows into the statute by reference the words of a State Act not qua State Act but as a convenient shorthand, as against a long hand writing of all the section into the Central Act, such legislation stands or falls on Parliament's legislative power, vis-a-vis the subject viz. mines and minerals. The distinction between the two legal lines may sometimes be fine but always is real". It is therefore clear that once the Provincial legislature has got the competence to make a law on devolution of agricultural property, the fact that it has, instead of making an independent legislation, adopted a shortened from of incorporation by reference to a Central Act does not make it unconstitutional. The doctrine of incorporation by reference to an earlier legislation is well known and it has been very aptly described by Lord Esher, M. R. in In re. Wood's Estate Ex parte Her Majesty's (1886) 31 Ch D 607 at pp. 615-616 thus:

"If a subsequent Act brings into itself by reference some of the clauses of a former Act the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855".

In view of the above discussion, the first contention of the appellants has to be rejected.

12. As regards the second contention that the Act is intended to validate Central Act 18 of 1937 which has been held to be inapplicable to agricultural lands by the Federal Court, and that the Provincial Legislature has no power to make such a validating law, the submission of the learned counsel is this. The Act is intended to get over the decision of Federal Court and to cure the legislative incompetence of the Federal Legislature. By extending the definition of property in the Central Act which was held not to include agricultural lands on the ground of absence of legislative competence, the Provincial Legislature cannot be said to have legislated on the topic of devolution of agricultural lands. The object of enacting Act 26 of 1947 was not really for the purpose of making a law on devolution of agricultural lands but its sole purpose is to enable the law made by the Federal Legislature to operate in relation to agricultural lands in the State of Tamil Nadu, thus conferring legislative competence on Federal Legislature which it did not have.

13. The learned counsel, in support of that submission refers to certain observations in the decision in Jaora Sugar Mills Ltd. v. State which are to the effect that Parliament cannot

validate an invalid State Act by conferring legislative competence on the State Legislature which it did not possess. In that case the facts were entirely different. Under the Madhya Pradesh Sugarcane (Regulation of Supply & Purchase) Act, 1958, a cess was levied on sugarcane. In Diamond Sugar Mills case , the Supreme Court held that such a levy was not valid as the State Legislature had no legislative competence to impose the levy. Similar Acts enacted by several other States also suffered from the same infirmity. To meet the situation, the Parliament passed the Sugarcane Cess (Validation) Act, 1961 (Act 38 of 1961). By Section 3 of that Act all the assessments and collections made before its commencement under the various State Acts had been validated and all the provisions of the State Acts as well as the relevant notifications, rules etc; made under the State Acts were treated as part of S. 3 from the relevant dates when the State Acts were passed. The validity of the said validation Act was questioned before the Supreme Court inter alia on the ground that the Validation Act is only to cure the incompetence of the State Legislature and not to levy a cess by the Parliament itself and, therefore, it was a colourable piece of legislation. The Supreme Court held that so long as the Parliament had the legislative competence to deal with the subject-matter under S. 3 of the Sugarcane (Validation) Act, 1961, it cannot be challenged on the ground that the benefit under the Act goes to the States and not to the Centre, that the said S. 3 cannot be taken to validate the invalid State statutes and that the Parliament instead of making elaborate and long provision such as is contained in S. 3 for the sake of brevity and convenience. The Supreme Court observed that the plain meaning of S. 3 is that all the material provisions of the State Acts as well as the notifications; orders and rules issued thereunder are included in it and shall be deemed to have been so included 'at all material times, and therefore the Act cannot by taken to be a colourable piece of legislation and that to hold otherwise would be to cut down the width and amplitude of legislative competence conferred on Parliament by the relevant entry in List 1 of the 7th Schedule. The Supreme Court further observed that the validity of an Act must be judged in the light of the legislative competence of the Legislature which passes the Act or with reference to the question as to whether the fundamental rights of the citizens have been improperly contravened or other considerations which may be relevant in that behalf, and that it will be inappropriate and indeed illegitimate to hold an enquiry into the manner in which the funds raised by an Act would be dealt with. This decision of the Supreme Court far from supporting the appellant supports the respondent's contention that the validity of Tamil Nadu Act 26 of 1947 has to be legislative competence and not with reference to the form its legislation has taken.

14. No doubt, the Central Act has been held by the Federal Court to be inapplicable to agricultural lands as the Federal Legislature had no legislative competence to enact a law on devolution of agricultural lands. On taking note of the said decision, the Provincial Legislature having the requisite legislative competence felt that it was not expedient to have two rules of succession, one with regard to agricultural lands and the other with regard to other species of property and, therefore, passed the Madras Act 26 of 1947 to remedy the decision of the Federal Court and to apply Central Act to agricultural lands in the State. We do not see how the passing of the said Act could be construed as conferment of legislative competence on Federal Legislature by the Provincial Legislature. There is also no question of validating the Central Act or curing any defect therein by the Provincial Legislature. The Provincial Legislature, taking note of the decision of the Federal Court that the power to make a law in relation to devolution of agricultural lands was with the Provincial Legislature has itself chosen to make a law on devolution of agricultural lands by adopting the Central Act and making suitable amendments thereto. The Provincial Legislature while making the law, however, had decided that rather then making elaborate and long provisions in respect of succession to agricultural lands, it can adopt the Central Act in entirety for purpose of convenience and amend the definition of 'property' in the Central Act so as to include agricultural lands as well. It is always open to any Legislature, if it so chooses, to adopt any existing piece of legislation made by any other legislative body and apply the same with such modifications as considered necessary to suit its object and purpose, and by such incorporation the Act which has been incorporated becomes an Act passed by it. Therefore the second contention also fails.

15. The third contention put forward by the learned counsel is based on the following observation of the Supreme Court in Zaverbhai Amaidas v. State of Bombay, :

"Discussing the nature of the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, in a situation similar to that under S. 107(2) of the Government of India Act, it was observed by Lord Waston in Attorney-General for Ontario v. Attorney-General for the Dominion, 1896 AC 348, that though a law enacted by the Parliament of Canada and within its competence would override Provincial Legislation covering the same field, the Dominion Parliament had no authority conferred upon it under the constitution to enact a statute repealing directly any provincial statute. That would appear to have been the position under S. 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List."

The above observations have been made while considering the scope of S. 107(2) of the Government of India Act which corresponds to Art. 254(2) of the Constitution. In this case we are not concerned with a legislative entry in the Concurrent List but are concerned only with the entries in List II of Sch. 7 which is exclusively the State field. There is also no question of repugnancy arising in this case between the Central Act and the Provincial Act. As a result of the decision of the Federal Court holding the Central Act to be applicable only to non-agricultural properties the Provincial Legislature, in exercise of its legislative power, is empowered to enact, if it so chooses, similar law for devolution of agricultural lands, which subject is within its exclusive field. There is, therefore, no question of the Central as well as the State Act operating in the same field and it is only in such cases either S. 107(2) of the Government of India Act or Art. 254(2) of the Constitution will come into play. Therefore the above observations of the Supreme Court cannot be taken advantage of by the appellants to question the validity of Tamil Nadu Act 26 of 1947 on the ground that the Provincial Legislature cannot directly amend the Central Act. Even in the area in which Art. 254(2) operates, the said observations of the Supreme Court have been held to be casual observations and as such not binding under Art. 141, in Zoolfiqar Ali v. Official Trustee, ((1967) 69 Bom LR 326). In that case a Division Bench has held that the said observations of the Supreme Court in Zaverbhai's case cannot be taken to be even obiter

dicta. The Supreme Court itself has recently pointed out in Ranchhoddas Atmaram v. Union of India, that an opinion on a

question never required to be decided by the Supreme Court cannot be treated as having been decided by it so as to become a binding decision. It is however unnecessary to go into the question as to the binding nature of the said observations made by the Supreme Court in Zaverbhai's case as we are of the view that the question whether the State Legislature could adopt and incorporate an Act passed by the Central Legislature by making suitable amendments thereto can be taken to be concluded by the two decisions of the Supreme Court in Jaora Sugar Mills Ltd. v. State, and Krishna Chandra's case . In these cases the Parliament adopted and

incorporated the provisions of certain State Acts which had been declared invalid for want of competence while legislating on a subject within its competence and such incorporation was upheld. The first decision has already been referred to in detail. In the second decision Parliament had in exercise of its legislative power enacted the Bihar Land Reforms Laws (Regulating Mines and Minerals) Validation Act, 1969 with a view to validate an invalid law passed by the Bihar Legislature by re-enacting the State Act with retrospective effect in its own right. An attack was made on the constitutional validity of the said Central Act on the ground that the Parliament cannot validate a law passed by an incompetent State Legislature, that such validation amounts to conferment of legislative competence by the Parliament on the State legislature which did not posses under the Constitution, and that validation by a subsequent Act of a competent legislature can only be by a subsequent law enacting the provisions of the Sate Act expressly or by incorporation. The supreme Court while rejecting the said objection pointed out that though the Parliament cannot confer competence on State Legislature which it did not have under the Constitution to make a law in respect of matters falling outside the State List it has the power to enact a law on a topic within its competence by adopting the provisions of the State Act, not qua State Act but as a convenient shorthand, as against a long hand writing of all the sections into the Central Act. In that case S. 2(1) of the validating Act passed by the Parliament said that the laws specified in the Schedule shall be deemed always to have been as valid as if the provisions contained therein had been enacted by Parliament. This section was construed by the Supreme Court as a re-enactment by the Parliament of a law on the same topic of Mines and Minerals which was covered by the Bihar Act which has been declared to be invalid by the Supreme Court. The said decision is also an authority for the proposition that Parliament instead of making a fresh or independent legislation on a topic within its competence can adopt and incorporate even an invalid State law on the same topic if the Parliament so chooses. Here we have a converse case. The Central Act is a piece in respect of a topic within its competence, that is in respect of succession to non-agricultural properties. The provincial Legislature while enacting a law on devaluation of agricultural lands adopted and incorporated as part of its legislation the Central Act. The decisions of the Supreme court in Jaora sugar Mill's case and Krishna Chandra's case have gone to the extent and

incorporate as part of its legislation an invalid piece of legislation passed by the States. But here is an a fortiori case where the Central Act has not been invalidated and, the Provincial legislature had following a well established legislative practice, adopted and incorporated as part of its legislation the provisions of the Central Act.

16. Mr. Parasaran would say that the Tamil Nadu Act 26 of 1947 does not in terms incorporate the positions of the Central Act 18 of 1937 by reference but it merely amends the definition of 'property' contained in that Act. It is true, the provisions of the Central Act have not been treated as an Act passed by the Provincial Legislature expressly but such an incorporation necessarily to be implied having regard to the title and preamble given to the Act which is to extend the provisions of the Central Act to agricultural lands in the State of Tamil Nadu. The adoption or incorporation of the Central Act could have been made by the Provincial Legislature by using more clear and specified language. But so long as the intension to adopt and incoporate the Central Act as part of its legislation is clear then, the Act cannot be held to be incompetent. How far a careless and imperfect drafting of the Bills will affect the legislation has been referred to by the Supreme Court in the following passage in Krishna Chandra v. Union of India. :

"No doubt, there is some remissness in the drawing up on what professes to be a validating law and the neglected art of drafting bills is in part the reason for subtle length of submissions where better skill could have made the sense of the statute lucent and in its validity above-board. Informed by a realistic idea of short falls in legislative drafting and of the social perspective of the statute but guided primarily by what the Act has said explicitly or by necessary implication, we will examine the meaning and its impact on counsel's contentions".

As the incorporation of Acts passed by one Legislature by another legislative body is permissible we have no doubt that the Tamil Nadu Act 26 of 1947 which by necessary implication adopts and incorporates Central Act 18 of 1937 is quite valid and it does not suffer from legislative incompetence.

17. The result is the second appeal fails and is dismissed. There will, however, be no order as to costs.

18. Appeal dismissed.


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