Abdul Sayed vs Mubarak Bibi

Lahibi, C.J.—The subject-matter of this appeal consists of three items of property,-(a) a house at Delaneypur, (b) a paddy field at Lamba Line measuring a little over two acres, and (c) a garden and paddy field at Pahargaon also measuring a little over two acres. The two Respondents and deceased wife of the Appellant are three sisters, being daughters of a lady named Kariman Bibi who died in the month of May, 1931. Zamiran Bibi, the deceased wife of the Appellant died on January 27, 1955.

The two Respondents instituted the suit out of which this appeal arises claiming two-thirds share of all the properties as heirs and legal representatives of the deceased Zamiran Bibi. The Appellant resisted the Plaintiff Respondents'' claim to all the three properties on the ground that the Plaintiffs Respondents were not the heirs and legal representatives of the deceased Zamiran Bibi under the Andaman and Nicobar Islands (Land-tenure, Regulation, 1926 (Regulation No. III of 1926) hereinafter referred to as the Regulation). With regard to the house at Delaneypur the Appellant further pleaded that although the house stood in the name of his wife Zamiran Bibi, she was really a benamidar of the Appellant, and that the Appellant was the beneficial owner of that house. It is unnecessary for the purpose of the present appeal to recite the previous history of the title of Zamiran Bibi, although that title has been set out in the plaint and negatived by the judgment under appeal. For the purpose of the present appeal I shall proceed on the footing that all the properties stood in the name of Zamiran Bibi at the time of her death. Zamiran Bibi had occupancy rights in respect of lands in Mouza Lamba Line, and she had non-occupancy rights in respect of lands in Mouza Pahargaon.

The learned District Judge has held that in respect of the agricultural lands in Mouza Pahargaon and Lamba Line the two Plaintiffs are not the heirs u/s 13 of the Regulation and he has dismissed the Plaintiffs claim in respect of those lands. He has further held that are respect of the house at Delaneypur Zamiran Bibi's right was neither that of an occupancy nor that of a non occupancy tenant, since the land upon which the house was built was non-agricultural in character. The learned District Judge has further held that as there is no provision in the Regulation regulating succession to non-agricultural land the rights of the parties will be governed by their personal law, and since the parties to the litigation are Mahomedans of the Hanaf School, the Plaintiffs are entitled to four-sevenths share of the Delaneypur house and the Defendant Appellant is entitled to the remaining three-sevenths share. With regard to these shares the learned District Judge has relied upon a passage in Tyabji's Mahomedan Law. Against that decree the Defendant has filed the present appeal, and the Plaintiffs Respondents have also filed a cross objection challenging the constitutional validity of Section 13 of the Regulation.

Upon the arguments advanced before us by the Appellant and the Respondents, the two points which call for our determination are (1) whether the learned District Judge was right in holding that the rights of the parties in respect of the house at Delaneypur should be determined by their personal law and (2) Whether the Andaman and Nicobar Islands (Land-tenure) Regulation, 1926, is a valid piece of legislation.

The learned Advocate appearing for the Appellant has argued before us that the learned District Judge was wrong in applying the personal law of the parties for determining their rights in respect of the Delaneypur house and has contended that in the absence of any provision in the Regulation regarding the succession to any particular kind of property, the heirs of a deceased licensee cannot acquire any right without the consent in writing of the Chief Commissioner of these Islands and reference has been made to the provision of Section 5(2) of the Regulation. In order to Judge the soundness of this argument we have to examine the different provisions of the Regulation.

u/s 3 of the Regulation all lands in these Islands vest absolutely in the Union of India, and no person can acquire any right therein except in the manner provided for by the Regulation. Section 4, Sub-section (1) Clauses (a) and (b), however, authorise the Chief Commissioner to carve out certain classes of interest and to make grants of land and to grant license for occupation of land. u/s 4(1)(a) the Chief Commissioner is empowered to make grants for the cultivation of long lived crops such as cocoanuts, coffee, rubber and the like and also for the construction of buildings and works to be used for the purpose of and in connection with such cultivation. The maximum period for which a grant can be made u/s 4(1)(a) is thirty years with an option of renewal for the like period. u/s 4(l)(b) a license can be granted to any person to occupy land for any purpose. Section 4(2) requires that a grant or license shall specify the purpose for which it is made or granted. From Section 4 it follows that grants can be made only for the purpose of cultivation of long lived crops or for the construction of buildings and works for the purpose of and in connection with such cultivation, whereas license can be given for any purpose, including agricultural and non-agricultural purposes.

The statutory form in which a license can be granted for building purpose is Form C prescribed by Rule 20 much runs as follows:

A license o occupy land for a house shall be in Form "C". Form C is set out below:

FORM C

License to occupy land for house site.

Under Section 4(1)(b) of the Andaman and Nicobar Island's (Land-tenure) Regulation III of 1926 this license is issued to...for the construction of a house on site No...situated at...acres...Kanals...marlas...in area on the following conditions:

The licensee shall construct a house within...years from the date of issue of this license.

The license shall be termiable at one year's notice. The maximum amount compensation payable u/s 5(3) the Regulation shall be Rs....

Land Revenue amounting to Rs. shall be paid in advance on 1st January of each year, the first year's revenue being payable on....

Buildings erected in Aberdeen Bazar shall be of a standard pattern as laid down in Revenue Rule 21.

If the licensee fails to observe any condition specially mentioned in this license or to comply with any of the rules framed u/s 26(1) of the Andaman and Nicobar (Land-Tenure) Regulation III of 1926, and in force for the time being and not inconsistent with the said conditions the granting authority may cancel or modify the license and resume forthwith the whole or part of the land under license.

Deputy Commissioner,

Port Blair

Dated....19.

The license for the Delaneypur house is not on the record, though the Indenture by which Zamiran Bibi purchased the land has been produced and marked as Ext. A.

Section 5 of the Regulation lays down the conditions subject to which liceses are deemed to have been given. As the Appellant strongly relies upon the second Sub-section of Section 5, I reproduce this Sub-section:

(2) Save as otherwise provided by this Regulation, no license and no right acquired under a license shall devolve by inheritance or be transferred by conveyance or in any other manner whatever without consent of the Chief Commissioner in writing.

It is clear from this Sub-section that a license and any right acquired under the license are by themselves non-heritable and non-transferable without the written consent of the Chief Commissioner.

The Appellant's contention is that since the Plaintiffs Respondents have neither alleged nor proved any consent in writing by the Chief Commissioner they have not acquired any right to the Delaneypur a house under the provisions of Section 5(2) of the Regulation. There can be no question that the right to occupy land granted by the license is hit by the plain provision of Sub-section (2) of Section 5, but there is some difficulty on the question whether the right to a house constructed on the land in respect of which a license has been granted can be said to be a right acquired "under the license" within the meaning of Sub-section (2) of Section 5.

It will appear from Rule 20 of the Rules framed u/s 26 of the Regulation that a special class of license is contemplated for the purpose of house site and Form C is the statutory Form in respect of that license. The only right conferred on the licensee under such a license is the right to construct a house within a specified period from the date of the issue of the license failing which the license is liable to be revoked. From this it follows that the right of ownership of the building constructed on a plot of land held under a license in Form C is a right dependent on the license, and, therefore, flows from the license. In that sense the right of ownership in the building is a right acquired under "the license".

The scheme of the Regulation seems to be that in the absence of any specific provision, succession to a right under the license, will depend upon the written consent of the Chief Commissioner. There is a provision for succession to non-occupancy and occupancy rights in agricultural land u/s 13, but there is no provision for succession. To building sites or non-agricultural land. It is significant to note that Section 13 occurs in Chapter IV of the Regulation, the heading of which is "Agricultural Tenancies and Classes of Tenancies". The provisions of Chapter IV therefore, are confined to agricultural tenancies, whereas Sections 4 and 5 apply to a class of interest in land, agricultural as well as non-agricultural. These two sections are in Chapter III, the heading of which is "Grants of Land and Products of Lands".

For the foregoing reasons I have reached the conclusion that the Plaintiffs Respondents have not acquired any title to the house at Delaneypur, because they have neither alleged nor proved any consent in writing of the Chief Commissioner, as required by the second Sub-section of Section 5 of the Regulation. I would, therefore, allow this appeal, set aside the judgment of the learned District Judge in respect of the house Delaneypur and dismiss the Plaintiffs'' suit in its entirety.

Coming now to the cross objection the only point that has been raised by the learned Advocate appearing for the Respondents is that Section 13 of the Andaman and Nicobar Islands (Land-tenure) Regulation, 1926, is a void piece of legislation inasmuch as it contravenes Article 14 of the Constitution. It is now well settled by a series of decisions of the Supreme Court that Article 14 does not prohibit legislative classification so long as there is an intelligible differentia, and when the classification made by law has a reasonable relation to the object which the Legislature seeks to obtain. Section 13 of the Regulation lays down the mode of succession to occupancy and non-occupancy rights which are rights in agricultural land. Other classes of rights are recognised by the Regulation, for example rights acquired by license for building houses or for other non-agricultural purposes. The classification of purposes into agricultural and non-agricultural purposes is, in my opinion, a rational classification, having an intelligible differentia. All persons holding a particular class of land will have the rights of succession determined in a particular manner, while all other persons holding another kind of land will have their rights determined in another manner. The Regulation does not make any discrimination between one person and another holding the same class of land or the same class of rights, and consequently I am entirely unable to hold that the legislation is open to the charge of denial of equal protection of law.

The learned Advocate appearing for the Respondents conceded before us that if the attack on the constitutional validity of Section 13 of the Regulation fails, there is no other point in the cross-objection. As I have already held that there is no substance in the attack on the constitutional validity of the legislation, I hold that the cross-objection fails and must be dismissed, but without any order as to costs.

With regard to costs in the appeal, it appears that the Defendant did not raise the question of the invalidity of the! Plaintiffs title u/s 5(2) of the Regulation in the Trial Court. That ground was taken for the first time in the memorandum of appeal, and since it is a pure question of law, we have allowed the learned Advocate for the Appellant to argue the point before us, but we will not make any order as to costs of this appeal.

Bachawat, J.

The dispute relates to the succession to the estate of one Zamiran Bibi. At the time of her death she had house at Delaneypur, a paddy field at Lamba Line land and hut, a garden and a paddy field at Pahargaon.

The land on which the house at Delaneypur was built was held under a license issued u/s 4(1)(b) of the Andaman and Nocobar Islands (Land-tenure) Regulation, 1926 (Regulation III of 1926) (hereinafter referred to as the Regulation). Section 5(2) of the Regulation provides that save as otherwise provided by the Regulation, no license and no right acquired under a license shall devolve by inheritance or be transferred by conveyance or in any other manner without the consent of the Chief Commissioner in writing. It follows that on the death of Zamiran Bibi, the license under which the land at Delaneypur was held did not devolve by inheritence. The Plantiffe claim title to the land at Dlaneypur by inheritance and succession to Zamiran Bibi. That claim in respect of the land must fail in view of Sub-section (2) of Section 5.

With regard to the house built on the land at Delaneypur, in paras 4 and 5 of the plaint, the Plaintiffs stated that Zamiran Bibi demolished the house at Pahargaon, and with the same materials erected a house at Delaneypur. The Defendant's case was that he constructed the Delaneypur house at huge cost, purchasing new timbers, C.I. sheets, nails, bolts, etc., and that some old materials such as posts, C.I. sheets of the Pahargaon house valued at the most at Its 150 were also used in the construction of Delaneypur house. At the trial Qumrun Nisa, the second Plaintiff, gave evidence. In her examination in chief she said that the house at Delaneypur was constructed with the material of the house at Pahargaon. In cross examination, however, she stated that the wood used for the construction of the Delaneypur house was partly brought from the old house at Pahargaon and partly from Chatham. P.W. 4 Shaike Madar, stated that the house at Pahargaon was demolished and with its materials the house at Delaneypur was constructed. It will be seen that the evidence adduced on behalf of the Plaintiffs is somewhat conflicting. Besides the case made by Qumrun Nisa in her evidence is somewhat at variance with the case made in the plaint.

The Defendant gave evidence. He was a tally clerk drawing a salary of Rs. 75 per month. He swore that he constructed the Delaneypur house in 1952. The house was a double storeyed one and for the new house he paid for the timber and carpentry charges. He produced several bills which form exhibit B series.

They show that the materials required for the construction of the house were sold to the Defendant by different dealers. Consistently with the case made in the written statement, he also said that out of the dismantled house at Pahargaon be used timber at the most worth Rs. 150. He also said that the remaining timber for the Delaneypur house was purchased from Chatham Mill. I see no reason to disbelieve the Defendant's testimony. On the evidence I am satisfied that the house at Delaneypur was constructed by the Defendant at his own cost.

The Defendant also made a case that the land on which the Delaneypur house was built was also purchased by him in the benami of his wife. Apart from his testimony, there is no other evidence on the record to substantiate this part of his case. I am, therefore, bound to hold that he failed to prove that the land was purchased in the benami name of his wife.

With regard to the land I have already said that in view of Section 5(2) of the Regulation, the Plaintiffs cannot claim any title by inheritance and succession to Zamiran Bibi. With regard to the house I have come to the conclusion that the Defendant was the owner of the house at Delaneypur. Consequently the Plaintiffs cannot claim title to. the Delaneypur house also as heirs of Zamiran Bibi, and the further question whether the house standing at Delaneypur is or can be said to be a right acquired under a license issued u/s 4(1)(b) of the Regulation does not arise, and I do not desire to express any opinion one way or the other on that point.

The result is that the judgment of the learned District Judge with regard to Delaneypur house must be set aside.

I am of opinion that the cross objection has no substance.

The lands at Pahargaon and Lamba Line are agricultural lands. With regard to some of these lands, Zamiran Bibi was an occupancy tenant, and with regard to their lands she was a non-occupancy tenant. The succession to the tenancy right of a female tenant in agricultural land is governed by Section 13(2) of the Regulation. Under Sub-section (2) of Section 13 the Defendant is the preferential heir in respect of the tenancy rights in question.

In my opinion Section 13(2) of the Regulation does not contravene Article 14 of the Constitution. All female tenants in agricultural lands and the succession to their tenancy rights in such land are governed by Section 13. Article 14 of the Constitution allows reasonable classification. The differentia between tenancy rights in agricultural land and non-agricultural land is an intelligible one. The distinction has also a reasonable relation to the objects sought to be achieved by the Regulation. Special legislation with regard to agricultural lands is a well recognized feature of Indian Law. To give one instance, the Transfer of Property Act governs leases of non-agricultural lands, whereas in every State there is special legislation with regard to leases of agricultural land.

I have, therefore, come to the conclusion that the cross objection should be dismissed.

I concur in the order proposed by my Lord.