BHAG BHARI Vs. SARLA DEVI

JUDGEMENT

(1.) This appeal against the judgment of the learned Sub Judge Ist Class has arisen out of a suit filed by the appellants for possession of the shop in dispute by way of specific performance of the agreement of sale dated September 13, 1969, executed between the appellants and respondent Nos. 2 to 5. The said shop was originally owned by Sumer Chand and on his demise was inherited by all the respondents. The plaintiffs, however, claimed that in a family arrangement the shop had fallen to the share of respondents Nos. 2 to 5 and they were its exclusive owners when the agreement was entered into. As respondent No. 1 was also one of the natural heirs, she was impleaded as a defendant to ward off any objection by her to the enforcement of the agreement.

(2.) During the pendency of the suit, Sarla Devi, respondent No. 1, filed a petition under Section 22 of the Hindu Succession Act (for short, called the Act) to acquire the ownership of the 4/5th share of respondent Nos. 2 to 5 in the shop in dispute in which they conceded her right and executed a sale dead in her favour on July 20, 1970, qua their share. The validity of the sale in favour or Sarla Devi was challenged on a number of grounds, but the only one which survives for determination in this appeal is that the provisions of Section 22 of the Act are ultra vires of the provisions of Articles 14, 15 and 19 of the Constitution and that the Parliament was not competent to enact the said Section 22 being beyond the scope of "Entry 5" of the Concurrent List which covers the subject of intestate succession. The validity of the sale in favour of respondent No. 1 was upheld by the trial Court and the suit dismissed, which necessitated the filing of this appeal.

(3.) As observed above, the judgment and decree of the trial Court is assailed only on the ground that the legislative provision contained in Section 22 of the Act is ultra vires of the Constitution. The challenge on the basis of Articles 14, 15 and 19 of Constitution was that the right of pre-emption contained in the said section was unreasonable restriction on the right of a citizen to acquire, hold and dispose of property. This matter stands concluded by a judgment of the Supreme Court in Ram Sarup and others v. Munshi and others, 1963 65 PunLR 531 wherein the challenge to the constitutional validity of the right of pre-emption under section 15 of the Punjab Preemption Act on similar grounds was turned down by the Constitution Bench.