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Arvind Kumar Tripathi, J.—Heard learned counsel for the parties. F.A.F.O. No. 369 of 2012, Writ Petition No. 4880(M/S) of 2012 and Writ Petition No. 4879 (M/S) of 2012, have been clubbed together as parties and the subject matter is same and common point of law is involved hence, they are being decided by a common judgment.
Smt. Anjali Kaul and Ms. Aparna Zutshi have filed this F.A.F.O. No. 369 of 2012 assailing the order dated 30.3.2012 passed by Civil Judge, Senior Division, Malihabad, Lucknow in regular Suit No. 184 of 2012, Smt. Anjali Kaul and Anr. v. Narendra Krishna Zutshi &. Ors. by which application under Order 39, Rules 1 and 2 CPC filed by appellant was rejected.
Writ Petition No. 4880 (M/S) of 2012 was filed by Smt. Anjali Kaul and Ms. Aparna Zutshi for quashing the impugned judgment passed by Additional District and Sessions Judge. Court No. 16, Lucknow in Misc. Civil Appeal No. 42/12 by which Misc. Appeal filed by Smt. Anjali Kaul and Anr. against order dated 30.3.2012 passed by Civil Judge, Senior Division, Malihabad, Lucknow in Original Civil Suit No. 185/12 was dismissed.
Writ Petition No. 4879 (M/S) of 2012 was filed by Smt. Anjali Kaul and Anr. for quashing the impugned judgment dated 1.9. 2012 passed by Additional District Judge, Court No. 16, Lucknow by which Misc. Civil Appeal No. 41 of 2012 filed by Smt. Anjali Kaul and Anr. v. Narendra Krishna Zutshi & Ors. was dismissed.
It has been mentioned in F.A.F.O. No. 369 of 2012 that the learned Court while rejecting the application under Order 39, Rules 1 and 2 C.P.C. vide impugned order dated 30.3. 2012 has wrongly relied upon Section 336 of U.P.Z.A. &. L.R. Act 1950 which has no application as against Hindu Succession Act 1956. On factual matrix a suit was filed being original Civil Suit No. 184 of 2012 alleging that plaintiffs are co-owners of the disputed property along with Sri. Kunwar Krishna Zutshi, Sri. Narendra Krishna Zutshi and Sri. Surendra Krishna Zutshi. The grandfather of Pradyumna Kumar Zutshi had five sons (i) Kunwar Krishna Zutshi, (ii) Sri. Hari Krishna Zutshi, (iii) Sri. Rajendra Krishna Zutshi, (iv) Sri. Surendrda Krishna Zutshi and (v) Sri. Narendra Krishna Zutshi. Sri. Surendrda Krishna Zutshi is unmarried and Sri. Hari Krishna Zutshi has died on 11.8.1989. Sri. Rajendra Krishna Zutshi who is father of plaintiff''s has died on 21.10.2010. Sri. Rajendra Krishna Zutshi had in his lifetime executed a registered deed dated 11.11.2003 in favour of her two daughters Smt. Anjali Kaul and Ms. Aparna Zutshi. Sri. Narendra Krishna Zutshi has executed a registered agreement to sale in favour of Badri Nath Agnihotri, Sri. Mahendra Pratap Singh and Smt. Shakuntala Devi regarding his one fourth undivided share on 25.8. 2010. The sale consideration was agreed upon to be Rs. 10 lacs. Narendra Krishna Zutshi has received Rs. 4 lacs 20 thousand as advance and Rs. 5 lacs 80 thousand are to be paid at the time execution of sale-deed. The disputed property is an undivided property and hence Narendra Krishna Zutshi ought to have offered the sale to plaintiffs being co-sharer and they have a right of pre-emption being co-sharer. Plaintiffs are ready to pay the agreed and stipulated amount. On the basis Of this agreement to sale defendant Nos. 2 to 4 are threatening to interfere in the disputed property. So defendant No. 1 being restrained from selling the disputed property to any other person and specially defendant Nos. 2 to 4 and they be restrained from interfering in the peaceful possession of the plaintiffs. Along with this suit, an application under Order 39, Rules 1 and 2, C.P.C. was moved which was rejected by the Civil Judge Senior Division, Malihabad, Lucknow vide order dated 30.3.2012.
Feeling aggrieved this F.A.F.O. No. 369 of 2012 has been filed.
Another suit No. 185/2012 was also filed by Smt. Anjali Kaul and Anr. v. Narendra Krishna Zutshi & Ors. for the same relief and same allegations have been mentioned in Original Suit No. 184 of 2012 and an application under Order 39, Rules 1 and 2 was also moved which was rejected by Civil Judge Senior Division, Malihabad, Lucknow being Misc. Civil Appeal No. 42/2012. This appeal was also dismissed by order dated 1.9.2012 and feeling aggrieved, this writ petition has been filed.
Another Civil Suit No. 183/2012 was also filed by Smt. Anjali Kaul & Anr. against Narendra Krishna Zutshi & Ors. on the same grounds as has been mentioned in Original Civil Suit No. 184/12, in the Court of Civil Judge Senior Division, Malihabad, Lucknow. In that case too an application under Order 39, Rules 1 and 2, C.P.C. was moved which was rejected vide order dated 30.3.2012. A Misc. Civil Appeal No. 41 of 2012 was preferred and that too was dismissed by Additional District and Sessions Judge, Court No. 16, Lucknow vide order dated 1.9.2012. Feeling aggrieved this writ petition has been filed.
After perusal of the plaints in all the three cases and the impugned orders passed by Civil Judge Senior Division, Malihabad, Lucknow and in two miscellaneous appeals decided by Additional District and Sessions Judge, Court No. 16, Lucknow it is evident that the controversy revolves around the legal proposition that whether the right of pre-emption given in Section 22 of Hindu Succession Act is applicable to the land covered from U.P.Z.A. & L.R. Act.
It was vehemently argued by learned counsel for Smt. Anjali Kauli and others, appellants in F.A.F.O. No. 369 of 2012 and petitioners in Writ Petition No. 4880(M/S)/2012 and also petitioners in Writ Petition No. 4879 (M/S)/2012 is that the provisions of Hindu Succession Act regarding pre-emption is applicable to the agricultural land on which provisions of U.P.Z.A. & L.R. Act is applicable.
Refuting the argument, learned counsel for the respondents in F.A.F.O. No. 369/2012 Opposite Parties in 4879 (MS) of 2012 and Writ Petition No. 4880 (MS) of 2012 argued that provisions of Hindu Succession Act is not applicable on the property which is governed by U.P.Z.A. & L.R. Act.
Learned counsel for opposite parties relied upon a case law of Smt. Prema Devi Vs. Joint Director of Consolidation (Head quarter) at Gorakhpur Camp and Others, . In this case a Division Bench of this Court has categorically held that:
In the first place, we are of the opinion mat the Hindu Succession Act, 1956 cannot be made applicable to agricultural plots. This Act was passed by Central Legislature in 1956 and the only entry under which Central Legislature had the jurisdiction to pass the Act, was Entry No. 5 in the third List of the Seventh Schedule of the Constitution. This Entry is as follows:--
Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." This entry obviously relates only to personal law and laws passed under this entry do not apply to any particular property. They merely determine the personal law. In List 2, Entry No. 18 is as follows:--
Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization." This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State legislation.
It is noteworthy that in List 3 wherever the entry relates to rights in land ''agricultural land'' has expressly been excluded. For instance, Entry No. 6 is as follows:
Transfer of property other than agricultural land.... Entry No. 7 is as follows:--
Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.
No such exception was expressly mentioned in Entry No. 5 because this entry related only to matters personal to individuals and did not relate directly to any property. While legislating in respect of such general subject the Legislature must be assumed to pass law only affecting property which it had jurisdiction to legislate about. Gwyer, C. 3. while delivering the judgment of the Federal Court in a reference on the Hindu Women''s Rights to Property Act, 1937, reported in AIR 1941 72 (Federal Court) observed as follows:--
There is a general presumption that a Legislature does not intend to exceed its jurisdiction. When a Legislature with limited and restricted powers makes use of a word of such wide and general import as "property", the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other....
The Hindu Succession Act, 1956, was passed merely to alter the personal law of succession applicable to Hindus. It had no reference to any kind of property in particular and was not meant to govern rights in agricultural tenancies. Sub-section (2) of S. 14 of the Act runs as follows:--
For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being In force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.
This sub-section indicates that it was only for the removal of doubts that this provision had been included. Even without this provision, the Act could not apply to agricultural holdings.
Under the U.P. Zamindari Abolition and Land Reforms Act which regulated the tenancy rights, there is no provision applying personal law to any of the tenures created under that Act and thus the provisions of the Hindu Succession Act are wholly inapplicable to the land tenures under the U.P. Zamindari Abolition and Land Reforms Act.
12-A. Learned counsel for the appellants and petitioners argued that in the case of Nidhi Swain and Others Vs. Khati Dibya and Others, . A Division Bench of Orissa High Court has while dissenting from the decision of Smt. Prema Devi Vs. Joint Director of Consolidation (Head quarter) at Gorakhpur Camp and Others, has held that:
Contention No. 2-- Mr. Misra next contended that the Hindu Succession Act of 1956 did not apply to agricultural lands. In support of this contention reliance is placed on a Bench decision of the Allahabad High Court in the case of Smt. Prema Devi Vs. Joint Director of Consolidation (Head quarter) at Gorakhpur Camp and Others, . The reasoning for the conclusion is that Entry No. 5 in the concurrent List of the Seventh Schedule of the Constitution which is the only entry under which the Central Legislature has the jurisdiction to pass the Hindu Succession Act relates only to personal law. Laws passed under this entry do not apply to any particular property. They merely determine the personal law. Entry No. 18 in List II (State List) in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are, therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State Legislation. In List 3 wherever the entry relates to rights in land, agricultural land has been expressly excluded.
A Division Bench of this Court in the case of Laxmi Debi Vs. Surendra Kumar Panda and Others, , dealing with the point in paragraph 14 of the judgment stated--
Mr. Jena further contended that the Act even if applies retrospectively, will not apply to agricultural lands, and for this, he relies, upon the Federal Court decision reported in Hindu Women''s Rights to Property Act, 1937, in the matter of AIR 1941 FC 72 (K). That was a case which came up for decision by the Federal Court on a reference made by his, Excellency the Governor-General of India.
Gwyer, C.J., who delivered the judgment of the Court held that the Hindu Women''s Rights to Property Act of 1937, and the Hindu Women''s Rights to Property (Amendment) Act of 1938, do not operate to regulate succession to agricultural land in the Governor''s Provinces; and do operate to regulate devolution by survivorship of property to other than agricultural lands.
This decision, in view of the changed position in law, no longer holds good. The Federal Court decision was based upon the law of legislative competency as it then stood, by the Government of India Act, 1935. In Schedule 7, Government of India Act, 1935, this subject appears in the Concurrent Legislative List (List 3) as Item No. 7. Item 7 was in the following terms:
Wills, Intestacy and Succession, save as regards agricultural lands''. Now under the present Constitution of India the same subject has been dealt with in the Concurrent List (List 3) in Schedule 7 as Item No. 5. Item No. 5 runs as follows:--
Marriage and divorce, infants and minors, Adoption, Wills, Intestacy and Succession, Joint Family and Partition, all matters in respect of which parties in judicial proceedings were, immediately before the commencement of this Constitution, subject to their Personal law.
It is clear that the Parliament had omitted the phrase ''save as regards agricultural land'' from Item No. 5 of the Concurrent List in order to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the enlargement of Entry No. 5. We have no doubt, therefore, that in view of the change in law, the Act will apply to agricultural lands also, and the decision in AIR 1941 FC 72 (K) would no longer hold good." The same reasoning has been advanced by a Division Bench of the Mysore High Court in the case of Basavant Gouda Vs. Smt. Channabasawwa and Another, , to uphold the applicability of the Hindu Succession Act to agricultural lands. We prefer to follow our earlier decision on the point which also appeals to us to be the appropriate decision on the matter. Accordingly the contention of Mr. Misra is rejected.
In this case it is noteworthy that there is a specific provision in U.P.Z.A. & L.R. Act in form of Section 336 which is reproduced below:
(1) Notwithstanding anything contained in any law, custom, usage or agreement the right of pre-emption shall not exist in respect of any sale of any immovable property in the area to which the Act applies whether made voluntarily or under order of Court.
(2) All suits for pre-emption pending in respect of any such property in any court whether of the first instance or appeal or revision shall stand dismissed, but award of the costs incurred in any such suit shall be in the discretion of the court.
This clearly goes to show that the right of pre-emption has not been given to a tenure holder under the provisions of U.P.Z.A. & L.R. Act.
A Full Bench decision of this Court in the case of Ramji Dixit and Another Vs. Bhrigunath and Others, is worth quoting:
An agricultural tenant has no religion and no personal law except as expressly provided in the Zamindari Abolition and Land Reforms Act. It applies to Hindus, Muslim, Christians etc. regardless of their religion and, therefore, regardless of their personal law except as regards succession in certain cases. It contains its own provisions regarding inheritance and transfers; and when it has left certain matters to be governed by the personal law it has done so by an express provision. Personal law has never been applied proprio vigore to questions of inheritance and transfer of tenancy rights as it has been applied to inheritance and transfer of proprietary rights.
This view was also adopted by this Court in another Full Bench decision of Ram Awalamb and Others Vs. Jata Shankar and Others, .
In the case of Madhuri Devi and Another Vs. Board of Revenue, U.P. at Lucknow and Others, , this Court has held that "tenancy in this province is governed by the provision of U.P.Z.A. & L.R. Act and the succession is also governed by the provisions of the said Act and is not governed by the principles of Hindu Law or any personal law."
It was argued from the side of learned counsel for the opposite parties that interpretation of provisions of Hindu Succession Act and interpretations of Section 336, U.P.Z.A. & L.R. Act clearly goes to show that the provisions of Hindu Succession Act will override the provisions of Section 336 of U.P.Z.A. &. L.R. Act. Our attention was drawn to Section 4 of Hindu Succession Act, which reads as follows:
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
Division Bench of this Court in the case of Madan Gopal Bhadwan v. Madan Chandra & Ors. 1952 R D 46 regarding interpretation relying upon "Maxwell on Interpretation of statute 9th Edition, pages 3 and 4, held that:
When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation. Absoluta sententia expositore non indiget. Such language best declares, without more, the intention of the law giver, and is decisive of it. The rule of construction is to intend the legislature to have meant what they have actually expressed. It matters not, in such a case, what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislators, it must be enforced, even though it be absurd or mischievous.
Consequently if the natural meaning of the language implied in Section 336 were to be given, the right of pre-emption has ceased to exists in the areas to which the Act applies, including the area in suit from the date on which the Act came into force.
Section 336 of the U.P.Z.A. & L.R. Act does not merely deal with the right of pre-emption, as contained in any other law, it deals with the right of pre-emption based on customs, usage and agreement also.
It may be that the legislature intended that the right of pre-emption and all litigations regarding claims of preemption may be put an end as soon as the Act came into force, whereupon to give full effect to the express language of Section 336 especially when the whole area of legislation dealt with in Section 336 is not covered by the provisions of Section 339.
In the case of Sukhdeo Singh and Others Vs. Sukhdeo Singh and Others, a Division Bench of Rajasthan High Court has held that the Right of Pre-emption does not accrue upon Khatedari rights in agricultural land by a Khatedar tenant. It was observed that "The right of pre-emption is a weak right as it introduces a restriction on the right to hold property and, therefore it cannot be availed of unless it clearly flows from the statute."
Section 22 of the Hindu Succession Act came up for consideration in Jaswant''s case (1970 Cur LJ 833 (Punjab) in which, Entry No. 18, List II and Entries No. 5 and 6 List III were noticed and it was held that section 22 of the Hindu Succession Act does not embrace agricultural land.
In the case Amar Singh and Another Vs. Asstt. Director of Consolidation and Others, , Vijay Pal Singh and another Vs. Deputy Director of Consolidation and others, & Audhar and Others Vs. Chandrapati and Others, Apex Court has held that personal law will not be applicable to the land governed by tenancy law.
We are in respectful agreement with this view and the view expressed by this court in Smt. Prema Devi Vs. Joint Director of Consolidation (Head quarter) at Gorakhpur Camp and Others, and hold that the words "interest in any immovable property of an intestate" do not include agricultural land of an intestate.
It needs hardly be said that U.P.Z.A. & L.R. Act is a special Act where provisions of Hindu Succession Act are not applicable in as much as rights of the parties are governed by U.P.Z.A. & L.R. Act. The U.P.Z.A. & L.R. Act is a self contained Code.
After holding that personal law is not applicable to the land covered by U.P.Z.A. &. L.R. Act, we have to see as to whether the order passed by Civil Judge Senior Division, Malihabad, Lucknow in Original Suit No. 184 of 2012 dated 30.3.2012, order passed by Civil Judge Senior Division, Malihabad, Lucknow in Original Suit No. 185 of 2012 dated 30.3. 2012 and judgment and order passed by Additional District and Sessions Judge, Court No. 16 in Civil Appeal No. 42 of 2012 and order passed by Civil Judge Senior Division, Malihabad, Lucknow in Original Suit No. 183 of 2012 dated 30.3.2012 and order passed by Additional District and Sessions Judge Court No. 16 in Misc. Civil Appeal No. 41 of 2012 dated 1.9.2012 are liable to be set aside or not.
Before an injunction under Order 39, Rules 1 and 2, C.P.C. can be granted, the Court has to see (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss. Admittedly the plaintiff Smt. Anjali Kaul and Ms. Aparna Zutshi are co-owners of the plots in dispute along with Sri. Narendra Krishna Zutshi and Sri. Surendra Krishna Zutshi. They all are co-sharers and co-owners of the disputed land. Sri. Narendra Kumar Zutshi entered into an agreement with Badrinath Agnihotri and Mahendra Pratap Singh and Shakuntala Singh for transferring his share to them by way of sale deed. Plaintiffs on the basis of right of pre-emption filed the suit and prayed for injunction that first offer should have been given to them. Learned Courts below in Original Suit No. 184 of 2012, Original Suit No. 185 of 2012 and Original Suit No. 183 of 2012 and in resulting first appeals rejected the application for injunction and appeal arising out of that order. The ground taken by the courts below was that right of pre-emption is not applicable for the land covered under U.P.Z.A. & L.R. Act.
We have discussed above that personal law is not applicable to the immovable property covered under U.P.Z.A. & L.R. Act. In view of the above, learned courts below have rightly held that defendant No. 1 being the bhoomidhar of the land has a right to sell his bhoomidhari property. In view of Section 363 of U.P.Z.A. & L.R. Act, right of pre-emption is specifically barred. Thus prima facie case is against appellants/petitioners.
We do not find any illegality and irregularity in the order and no interference is warranted. When the prima facie case is not in favour of the plaintiffs then balance of convenience and irreparable loss cannot be said to be in favour of the plaintiffs. In view of the above, the F.A.F.O. No. 369 of 2012, Writ Petition No. 4880(M/S) of 2012 and Writ Petition No. 4879 (M/S) of 2012 are liable to be dismissed and are hereby dismissed.