JIT SINGH Vs. KARNAIL SINGH

JUDGEMENT

(1.) BACHITTAR Singh and Khazan Singh defendant-respondents Nos. 3 and 4 were real brothers. Certain alienations of ancestral agricultural land by Bachittar Singh made in 1955 were called in question in September. 1962, by Karnail Singh and Jarnail Singh plaintiff-respondents Nos. 1 and 2 who are the sons of Khazan Singh, on the usual ground that the same were without legal necessity and contrary to the acricultural custom governing the parties. The declaratory suit of Karnail Singh and Jarnail Singh plaintiff-respondents was dismissed by the judgment and decree of the Court of Shri N. S. Swarai, Subordinate Judge First Class, Muktsar, dated Nov. 20, 1963. The appeal of the plaintiff-respondents against the decree of the trial Court was, however, allowed by the Court of Shri Jagwant Singh. Senior Subordinate Judge, Ferozepore, on Mav 19, 1964, and it was declared that the impugned sale dated November 7, 1955, would not affect the reversionary rights of the plaintiffs after the death of Bachittar Singh except to the extent of Rs. 6,050/ -. Defendants 7 to 16 to the suit who were the vendees in the impugned sale then filed this second appeal wherein they have prayed for the reversal of the iudgment and decree of the Lower Appellate Court and for substituting therefor the iudgment and decree of the trial Court.

(2.) IN the circumstances hereinafter detailed it is unnecessary to travel into the merits of the issues on which the decisions of the Courts below were based. Section 7 of the Punjab Custom (Power to Contest) Act, 1920 (hereinafter called the principal Act) was enacted with a view to provide restrictions, inter alia, on the power of descendants or collaterals to contest alienations of immovable property on the ground that such alienations were contrary to custom. The relevant Dart of Section 7 of the principal Act was in. the following terms :-

(3.) AFTER hearing counsel for the parties on the question of the constitutionality of the amending Act. I have not been able to persuade myself to hold in favour of Mr. Puri, and I have, therefore, not considered it necessary to give notice of the issue raised bv Mr. Puri to the Advocate-General for the State of Punjab under Rule 1 of Order 27-A of the Code of Civil Procedure. Mr. Puri wants me to hold that the amending Act is ultra vires Article 254 of the Constitution as the principal Act is an "existing law" within the meaning of Article 366 (10), and the relevant provisions of the amending Act are repugnant to the relevant provisions of the principal Act with respect to matters of "succession" which are covered by Entry 5 in List III of the Seventh Schedule to the Constitution. The relevant part of Article 254 extracted from the main provision would read as follows:-" (1) If any provision of a law made by the Legislature of a State is repugnant to. . . . . . . . . . . . . . . . . . . . . any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2 ). . . . . . . . . . . . the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provisions repugnant to the provisions of. . . . . . . . . . . . . . . . . . . . . an existing law with respect to that matter, then, the law so made by the Legislature of State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State; Provided that. . . . . . . . . . . . . . . . . . . . . . . . " "existing law" has been defined in Article 366 (10) of the Constitution to mean any law passed or made before the commencement of the Constitution by any Legislature. There is no doubt that the principal Act is an existing law within the meaning of Article 366 (10) of the Constitution. There is also no dispute about the fact that the relevant provisions of the amending Act are repugnant to the corresponding relevant provisions in the said existing law. The only question which calls for decision in these circum-stances is whether the matters to which the said provisions in the existing law relate are matters enumerated in the Concurrent List or not, and if so. whether the amending Act was or was not reserved for the consideration of the President, and has or has not received his assent. The amending Act does not appear to have been reserved for consideration of to have received the assent of the President of India. Whereas the submission of Mr. Kashmiri Lal Sachdeva is that the principal Act (which is the existing law) as well as the amending Act fall squarely within Entry 18 in the State List (List II ). the submission of Mr. Puri is that they fall under Entry 5 in List III. Entry 18 of List II reads as follows:- "land, that is to say, rights in or over land, land tenures including the relation of landlord and leant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. "