Holding

Section 22 of the Hindu Succession Act, 1956 confers a preferential right to acquire an interest in agricultural land and is applicable to such land, with the only historic exception of tenancy‑right devolution now removed by the omission of Section 4(2).

Summary

Two brothers inherited agricultural land in Himachal Pradesh; one brother sold his share to Babu Ram, prompting the other brother to seek a prohibitory injunction claiming a preferential right under Section 22 of the Hindu Succession Act, 1956. The trial court dismissed the suit, but the appellate court held that Section 22 applies to agricultural land and directed the transfer of the land to the plaintiff. The High Court affirmed this view, and the matter reached the Supreme Court on the question of whether Section 22 can be applied to agricultural holdings. The Court examined constitutional competence, the evolution of legislative entries in the Seventh Schedule, and the effect of the now‑omitted Section 4(2) which previously excluded tenancy‑right devolution. It concluded that Section 22 does confer a preferential right even in agricultural land, with the only historic exception being tenancy‑right devolution, which is no longer relevant. Consequently, the appeal was dismissed and the High Court’s decision upheld, overruling contrary High Court judgments.

Issues considered

Whether Section 22 of the Hindu Succession Act, 1956 is applicable to agricultural land.
Whether the preferential right conferred by Section 22 is excluded for agricultural land.
Whether devolution of tenancy rights in agricultural holdings falls within the ambit of Section 22, especially in view of the deletion of Section 4(2).

Legislation cited

Constitution of Indias. Article 254
Government of India Act, 1935
Hindu Succession Act, 1956s. 22, s. 4(2)
Hindu Women’s Rights to Property Act, 1937
Hindu Women’s Rights to Property (Amendment) Act, 1938

Subjects

Hindu Succession ActSection 22Agricultural landPreferential rightSuccessionDevolution of tenancy rightsConstitutional competenceArticle 254

Judgment

926 SUPREME [2019]
COURT2 REPORTS
S.C.R. 926 [2019] 2 S.C.R.

A BABU RAM
v.
SANTOKH SINGH (DECEASED) THROUGH HIS LRS
AND OTHERS
B (Civil Appeal No. 2553 of 2019)
MARCH 07, 2019
[UDAY UMESH LALIT AND M. R. SHAH, JJ.]
Hindu Succession Act, 1956:
C s. 22 – Preferential right to acquire property in certain cases
– Applicability of s. 22 to agricultural land – Held: Preferential
right given to an heir of a Hindu u/s. 22 is applicable even if the
property is an agricultural land – However, s. 22 is not applicable
in cases of devolution of tenancy rights with respect to agricultural
D holdings.
Dismissing the appeal, the Court
HELD: 1.1 In the instant case it is nobody’s case that the
matter relating to succession to an interest in agricultural lands
is in any way dealt with by any State legislation operating in the
E
State of Himachal Pradesh or that such legislation must prevail
in accordance with the principles under Article 254 of the
Constitution. The field is occupied only by Section 22 of the Hindu
Succession Act, 1956 insofar as State of Himachal Pradesh is
concerned. The High Court was, therefore, absolutely right in
F holding that Section 22 of the Act would operate in respect of
succession to agricultural lands in the State. [Para 16][942-C, D]
1.2 Though, succession to an agricultural land is otherwise
dealt with under Section 22 of the Act, the provisions of Section
4(2) of the Act, before its omission, had made it clear that the
G
provisions of the Act would not apply in cases inter alia of
devolution of tenancy rights in respect of agricultural holdings.
Thus, the effect of Section 4(2) of the Act before its deletion was
quite clear that, though the general field of succession including
in respect of agricultural lands was dealt with under Section 22 of
H
926
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 927

the Act, insofar as devolution of tenancy rights with respect to A
agricultural holdings were concerned, the provisions of Section
22 would be inapplicable. The High Court was, therefore,
absolutely right in its conclusion. However, with the deletion of
Section 4(2) of the Act, now there is no exception to the
applicability of Section 22 of the Act. [Para 17][942-F, H] B
1.3 The “right in or over land, land tenures ….” are within
the exclusive competence of the State legislatures under Entry
18 of List II of the Constitution. Pre-emption laws enacted by
State legislatures are examples where preferential rights have
been conferred upon certain categories and classes of holders in C
cases of certain transfers of agricultural lands. The preferential
rights by s. 22 is considered with three illustrations. (a) Three
persons, unrelated to each other, had jointly purchased an
agricultural holding, whereafter one of them wished to dispose of
his interest. The normal principle of pre-emption may apply in D
the matter and any of the other joint holders could pre-empt the
sale in accordance with rights conferred in that behalf by
appropriate State legislation. (b) If those three persons were real
brothers or sisters and had jointly purchased an agricultural
holding, investing their own funds, again like the above scenario, E
the right of pre-emption will have to be purely in accordance with
the relevant provisions of the State legislation. (c) But, if, the
very same three persons in illustration (b) had inherited an
agricultural holding and one of them was desirous of disposing of
his or her interest in the holding, the principles of Section 22 of
F
the Act would step in. The source of title or interest of any of the
heirs in the third illustration, is purely through the succession
which is recognized in terms of the provisions of the Act. Since
the right or interest itself is conferred by the provisions of the
Act, the manner in which said right can be exercised has also
been specified in the very same legislation. Therefore, the content G
of preferential right cannot be disassociated in the instant case
from the principles of succession. They are both part of the same
concept. [Para 18, 19][943-B-H]

H
928 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 1.4 When the Parliament thought of conferring the rights
of succession in respect of various properties including
agricultural holdings, it put a qualification on the right to transfer
to an outsider and gave preferential rights to the other heirs with
a designed object. Under the Shastrik Law, the interest of a
B coparcener would devolve by principles of survivorship to which
an exception was made by virtue of Section 6 of the Act. If the
conditions stipulated in Section 6 were satisfied, the devolution
of such interest of the deceased would not go by survivorship
but in accordance with the provisions of the Act. Since the right
itself in certain cases was created for the first time by the
C
provisions of the Act, it was thought fit to put a qualification so
that the properties belonging to the family would be held within
the family, to the extent possible and no outsider would easily be
planted in the family properties. It is with this objective that a
preferential right was conferred upon the remaining heirs, in case
D any of the heirs was desirous of transferring his interest in the
property that he received by way of succession under the Act.
[Para 20][944-A-D]
1.5 The preferential right given to an heir of a Hindu under
Section 22 of the Act is applicable even if the property in question
E
is an agricultural land. The High Court was right in upholding the
judgment and decree passed by the District Judge. [Para 21]
[944-D-E]
Sm. Laxmi Debi v. Surendra Kumar Panda and Others
F AIR 1957 Orissa 1 : 22 (1956) CLT 466 – approved.
In the matter of the Hindu Women’s Rights to Property
Act, 1937 (1941) 3 FCR 12 : AIR 1941 FC 72; Roshan
Lal v. Pritam Singh and others R.S.A. No. 258 of 2012
decided on 1.3.2008; Amar Singh and Ors. v. Baldev
G Singh and Ors. AIR 1960 Punjab 666(FB); Basavant
Gouda v. Channabasawwa and Anr. AIR 1971 Mysore
151; Nidhi Swain and Ors. v. Khati Dibya and Ors.
AIR 1974 Orissa 70; Venkatalakshmamma & Ors. v.
Lingamma & Anr. 1984 SCC OnLine Kar 141; Tukaram
H Genba Jadhav and Ors. v. Laxman Genba Jadhav and
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 929

Anr. AIR 1994 Bombay 247 : (1994) 96 BLR 227 ; A
Bharat v. Anjanabai (2007) (6) Mh.LJ 706 ; Vaijanath
and ors. v. Guramma and Anr. (1999) 1 SCC 292 : [1998]
3 Suppl. SCR 36 – referred to.
Jaswant and ors. v. Smt. Basanti Devi 1970 PLJ 587 :
1970 Punjab Law Reporter Vol. 72 page No. 958 ; B
Smt. Prema Devi v. Joint Director of Consolidation (Head
quarter) at Gorakhpur Camp and Ors. AIR 1970
Allahabad 238 ; Nahar Hirasingh and Ors. v. Dukalhin
and ors. AIR 1974 MP 141 ; Jeewanram v. Lichmadevi
and Anr AIR 1981 Rajasthan 16 ; Balkaur Singh v. C
Gurmail Singh 2007 SCC OnLine P&H 1257;
Subramaniya Gounder & Ors. v. Easwara Gounder
2010-5-L.W. 941 – disapproved.
Case Law Reference
D
(1941) 3 FCR 12 referred to Para 5
AIR 1957 Orissa 1 approved Para 11
AIR 1960 Punjab 666 referred to Para 11
AIR 1971 Mysore 151 referred to Para 11
E
AIR 1974 Orissa 70 referred to Para 11
AIR 1994 Bombay 247 referred to Para 11
(2007) (6) Mh.LJ 706 referred to Para 11
AIR 1994 Bombay 247 referred to Para 11 F
[1998] 3 Suppl. SCR 36 referred to Para 13
1970 PLJ 587 disapproved Para 21
AIR 1970 Allahabad 238 disapproved Para 21
AIR 1974 MP 141 disapproved Para 21 G
AIR 1981 Rajasthan 16 disapproved Para 21
2010-5-L.W. 941 disapproved Para 21

H
930 SUPREME COURT REPORTS [2019] 2 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2553
of 2019.
From the Judgment and Order dated 07.05.2018 of the High Court
of Himachal Pradesh at Shimla in RSA No. 457 of 2002.
Sanchar Anand, Apoorv Singhal, Devendra Singh, Advs. for the
B Appellant.

Ranjan Mukherjee, Ms. Jayatee Chatterjee, Ms. Aprajita
Mukherjee, S. Bhowmick, Advs. for the Respondents.
The Judgment of the Court was delivered by
C
UDAY UMESH LALIT, J. 1. Leave granted.
2. This appeal arises out of final judgment and order dated
07.05.2018 passed by the High Court1 in Regular Second Appeal No.457
of 2002 and raises questions regarding scope and applicability of Section
D 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the
Act), and particularly, whether preferential right given to an heir of a
Hindu under said Section 22 will be inapplicable if the property in question
is an agricultural land.
3. The facts leading to the filing of this appeal, in brief, are as
E under:
(a) Two brothers, namely, Santokh Singh2 and Nathu Ram3, sons
of Lajpat S/o Rupa inherited, among others, certain
agricultural lands after the death of their father. According
to Santokh Singh an arrangement was arrived at, in terms
F of which the brothers were to be in separate enjoyment of
certain specified pieces of land. Since Nathu Ram was not
interested in continuing with said arrangement he gave a
legal notice to Santokh Singh and later executed a registered
sale deed on 19.08.1991 in respect of his interest in the
G lands in favour of one Babu Ram4 S/o Kanshi Ram.

1
High Court of Himachal Pradesh at Shimla
2
Original Plaintiff
3
Original Defendant No. 1
4
H Original Defendant No. 2
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 931
[UDAY UMESH LALIT, J.]

(b) Soon thereafter, Civil Suit No.194 of 1991 was filed by A
Santokh Singh in the Court of Senior Sub-Judge, Hamirpur
praying for permanent prohibitory injunction and declaration.
It was inter alia submitted that as a co-sharer, the Plaintiff
had a preferential right to acquire the land which was sought
to be transferred by Defendant No.1 in favour of Defendant B
No.2. The suit was contested and the trial court by its
judgment and order dated 04.05.1994 dismissed said suit.
(c) The Plaintiff, being aggrieved filed Civil Appeal No.86 of
1994 in the Court of District Judge, Hamirpur, which appeal
was partly allowed. The Appellate Court placed reliance on C
the decisions reported in AIR 2000 Madras 516 and AIR
1988 Orissa 285 and held that the Plaintiff had a preferential
right under Section 22 of the Act to acquire the suit land
measuring 19 kanals half of the entire land entered in Khata
No.25 min, Khatoni No.29 min, Khasra No.1119 measuring D
38 kanals 1 marla situated in Tika Badehra, Tappa Badohag,
Tehsil Nadaun, District Hamirpur, (H.P.) on payment of sale
consideration amounting to Rs.60,000/-. It also held the
transfer of suit land by Defendant No.1 in favour of
Defendant No.2 to be illegal, null and void and hit by the
E
provisions of Section 22 of the Act. It directed Defendant
No.2 to transfer the suit land in the name of the Plaintiff on
receipt of sale consideration amounting to Rs.60,000/- within
three months.
(d) Defendant No.2, being aggrieved, carried the matter further F
by filing Regular Second Appeal No.457 of 2002 in the High
Court, which inter alia framed following substantial question
of law:
“1. Whether Section 22 of the Hindu Succession Act
excludes interest in agricultural land of an intestate and the G
preferential right over “immovable property” as envisaged
in the said provision is confined only to business and such
immovable property which does not include the agricultural
land?”
H
932 SUPREME COURT REPORTS [2019] 2 S.C.R.

A (e) Relying principally on the decision of the Division Bench of
the High Court in RSA No.258 of 2012 (Roshan Lal vs.
Pritam Singh and others5), the High Court dismissed said
Second Appeal, which decision is presently under challenge
by Defendant No.2-Appellant.
B 4. The challenge before this Court is confined to the applicability
of Section 22 of the Act to agricultural lands and the factual facets of the
matter are not in dispute. We have heard Mr. Sanchar Anand, learned
Advocate for the Appellant and Mr. Ranjan Mukherjee, learned Advocate
for heirs of Respondent No.1 – Plaintiff. With the assistance of the
C learned Counsel we have considered all the relevant decisions on the
point.
5. On a reference made under Section 213 of the Government of
India Act, 1935 (hereinafter referred to as ‘1935 Act’), the following
questions were considered by the Federal Court “In the matter of the
D Hindu Women’s Rights to Property Act, 1937"6 :-

“(1) Does either the Hindu Women’s Rights to Property Act,
1937 (Central Act, 18 of 1937), which was passed by the
Legislative Assembly on 4th February, 1937, and by the Council of
State on 6th April 1937, and which received the Governor-General’s
E
assent on 14th April 1937, or the Hindu Women’s Rights to Property
(Amendment) Act, 1938 (Central Act, 11 of 1938), which was
passed in all its stages after 1st April 1937, operate to regulate (a)
succession to agricultural land? (b) devolution by survivorship of
property other than agricultural land?
F
(2) Is the subject of devolution by survivorship of property other
than agricultural land included in any of the entries in the three
Legislative Lists in Sch. 7, Government of India Act, 1935?”
The observations of the Federal Court relevant for the present
G purposes were:-
“……….After 1st April 1937, the Central Legislature was
precluded from dealing with the subjects enumerated in List II of
Sch. 7, Constitution Act, so far as the Governors’ Provinces were
5
R.S.A. No. 258 of 2012 decided on 1.3.2018
H 6
(1941) 3 FCR 12 = AIR 1941 FC 72
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 933
[UDAY UMESH LALIT, J.]

concerned. Laws with respect to the “devolution of agricultural A
land” could be enacted only by the Provincial Legislatures (entry
No.21 of List II), and “wills, intestacy and succession, save as
regards agricultural land” appeared as entry No.7 of List III, the
Concurrent List. Act 18, read with the amending Act of 1938,
endeavored to improve the position of Hindu widows in two classes B
of cases (a) where by the operation of the principle of survivorship
the widow is excluded from enjoyment of the share of her husband
in property which he held jointly with other coparceners; and (b)
where, even apart from the rule of survivorship, the widow is
excluded from claiming any share in her husband’s estate by reason C
of the existence of sons, grandsons or great-grandsons of the
deceased who under the law take in preference to the widow.
Provision is also made for securing a share to a widow even in
cases where her husband had pre-deceased the last male owner
(S.3 (1), first proviso). The Act purports to deal in quite general
D
terms with the “property” or “separate property” of a Hindu dying
intestate, or his “interest in joint family property”; it does not
distinguish between agricultural land and other property and is
therefore not limited in terms to the latter.”
……………………… E
The questions were answered by the Federal Court as under:-
“..….(1) The Hindu Women’s Rights to Property Act, 1937,
and the Hindu Women’s Rights to Property (Amendment) Act,
1938, (a) do not operate to regulate succession to agricultural
land in the Governors’ Provinces; and (b) do operate to regulate F
devolution by survivorship of property other than agricultural land.
(2) The subject of devolution by survivorship of property other
than agricultural land is included in entry No.7 of List 3, the
Concurrent List.”
G
6. The relevant entries in 1935 Act which were considered by the
Federal Court underwent significant changes when the Constitution of
India was adopted. The following Tabular Chart would show the
distinction between the concerned entries:-
H
934 SUPREME COURT REPORTS [2019] 2 S.C.R.

A Seventh Government of India Act 1935 Constitution of India
Schedule
LIST I 54. Taxes on income other than agricultural 82. Taxes on income other than agricultural
income. income.
55. Taxes on the capital value of the assets, 86. Taxes on the capital value of the assets,
exclusive of agricultural land, of individuals exclusive of agricultural land, of individuals
and companies; and companies; taxes on the capital of
B companies.
56A. Estate duty in respect of property other 87. Estate duty in respect of property other
than agricultural land. than agricultural land.
56. Duties in respect of succession to 88. Duties in respect of succession to
property other than agricultural land. property other than agricultural land.
LIST II 20. Agriculture, including agricultural 14. Agriculture, including agricultural
education and research, protection against education and research, protection against
C pests and prevention of plant diseases; pests and prevention of plant diseases.
improvement of stock and prevention of
animal diseases; veterinary training and
practice; pounds and the prevention of
cattletrespass.
21. Land, that is to say, rights in or over land, 18. Land, that is to say, right in or over land,
land tenures, including the relation of land tenures including the relation of
landlord and tenant and the collection of landlord and tenant, and the collection of
D rents; transfer, alienation and devolution of rents; transfer and alienation of agricultural
agricultural land; land improvement and land; land improvement and agricultural
agricultural loans; colonization; Courts of loans; colonization.
Wards; encumbered and attached estates;
treasure trove.
27. Trade and commerce within the Province; 30. Moneylending and moneylenders; relief
markets and fairs; money lending and money of agricultural indebtedness.
E lenders.
41. Taxes on agricultural income. 46. Taxes on agricultural income.

43. Duties in respect of succession to 47. Duties in respect of succession to
agricultural land. agricultural land.
43A. Estate duty in respect of agricultural 48. Estate duty in respect of agricultural land.
land.
F LIST III 6. Marriage and divorce; infants and minors; 5. Marriage and divorce; infants and minors;
adoption. adoption; wills, intestacy and succession;
joint family and partition; all matters in
7. Wills, intestacy, and succession, save as respect of which parties in judicial
regards agricultural land. proceedings were immediately before the
commencement of this Constitution subject
to their personal law.
G 8. Transfer of property other than agriculture 6. Transfer of property other than
land; registration of deeds and documents. agricultural land; registration of deeds and
documents.
7. Contracts including partnership, agency,
contracts of carriage, and other special forms
of contracts, but not including contracts
relating to agricultural land.
H
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 935
[UDAY UMESH LALIT, J.]

7. The Act came into force on 17th June, 1956. Section 22 has A
remained unchanged since the enactment. While considering the effect
of Section 22, Section 4(2) may also be required to be looked into.
However, Section 4(2), as originally enacted has since then been omitted
by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005).
Before such omission, Section 4 as originally enacted was as under:-
B
“4. Over-riding effect of Act. – (1) Save as otherwise expressly
provided in this Act, -
(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 C
this Act;
(b) Any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus
insofar as it is inconsistent with any of the provisions
contained in this Act. D
(2) For the removal of doubts it is hereby declared that nothing
contained in this Act shall be deemed to affect the provision 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.” E
Section 22 of the Act is as under:-
“22. Preferential right to acquire property in certain cases
– (1) Where, after the commencement of this Act, an interest in
any immovable property of an intestate, or in any business carried
on by him or her, whether solely or in conjunction with others, F
devolves upon two or more heirs specified in class I of the
Schedule, and any one of such heirs proposes to transfer his or
her interest in the property or business, the other heirs shall have
a preferential right to acquire the interest proposed to be
transferred.
G
(2) The consideration for which any interest in the property of
the deceased may be transferred under this section shall, in the
absence of any agreement between the parties, be determined by
the court on application being made to it in this behalf, and if any
person proposing to acquire the interest is not willing to acquire it
for the consideration so determined, such person shall be liable to H
pay all costs of or incident to the application.
936 SUPREME COURT REPORTS [2019] 2 S.C.R.

A (3) If there are two or more heirs specified in class I of the
Schedule proposing to acquire any interest under this section, that
heir who offers the highest consideration for the transfer shall be
preferred.
Explanation.- In this section, “court” means the court within
B the limits of whose jurisdiction the immovable property is situate
or the business is carried on, and includes any other court which
the State Government may, by notification in the Official Gazette,
specify in this behalf.”
8. The first case wherein scope of Section 22 was considered,
C was Sm. Laxmi Debi v. Surendra Kumar Panda and Others7 by the
High Court of Orissa. The submission that Section 22 of the Act would
not cover succession in respect of agricultural lands was rejected. The
contention on the strength of judgment of the Federal Court6 was also
negated as under:-
D “14. 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 PC 72
(K). That was a case which came up for decision by the Federal
Court on a reference made by His Excellency the Governor-
E 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 Governors’
F 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
G 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.”
H 7
AIR 1957 Orissa 1 = 22 (1956) CLT 466
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 937
[UDAY UMESH LALIT, J.]

Now under the present Constitution of India the same subject has A
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, B
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 C
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.”
9. Before Full Bench of Punjab High Court in Amar Singh and D
Ors. vs. Baldev Singh and Ors.8 challenge was raised in the context
of rights of a Hindu female under Section 14 of the Act. It was held
inter alia that Section 14 of the Act was “within the legislative field
spanned in Entry 5 of List III, the concurrent List”. However, a Division
Bench of the same High Court in Jaswant and ors. vs. Smt. Basanti
Devi9 took a different view while considering effect of Section 22 as E
regards agricultural lands. The discussion in that behalf was as under:-
“8. Mr. Roop Chand, the Learned Counsel for the Respondent,
stressed that the words ‘immovable property’ used in Section 22
will include agricultural lands. Undoubtedly, they do. But one
cannot lose sight of the fact that when the Central Legislature F
used these words it did so knowing fully well that it had no power
to legislate regarding agricultural lands excepting for the purposes
of devolution. Section 22 does not provide for devolution of
agricultural lands. It merely gives a sort of right of pre-emption.
In fact, as already pointed out, entry No. 6 in List III, clearly G
takes out agricultural lands from the ambit of the concurrent list.
Agricultural land is specifically dealt with in entry No. 18 of List
II. The only exception being in the case of devolution. Therefore,
it must be held that Section 22 does not embrace agricultural lands.
8
AIR 1960 Punjab 666 H
9
1970 PLI 587 = 1970 Punjab Law Reporter Vol. 72 page no. 958
938 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 9. The last argument of Mr. Roop Chand, the Learned Counsel
for the Respondent, was that Section 22 is ultra vires the
Constitution as the Central Legislature had no right to pass such a
law regarding agricultural lands. This argument cannot be accepted
because it cannot be presumed that the Legislature was passing
law regarding matters which it had no power to pass particularly
B
when with regard to immovable property other than agricultural
land, it has the power to enact such a law. This view finds support
from the decision of the Federal Court in re Hindu Women’s Rights
to Property Act AIR 1941 FC 72, wherein in a similar situation
their Lordships of the Federal Court refused to strike down the
C provisions of the Hindu Women’s Rights to Property Act, 1937,
on the precise arguments.”
10. The High Court of Judicature at Allahabad, in Smt. Prema
Devi vs. Joint Director of Consolidation (Head quarter) at Gorakhpur
Camp and Ors.10 held:-
D “5… …we are of the opinion that the Hindu Succession Act,
1956, cannot be made applicable to agricultural plots. This Act
was passed by the Central Legislature in 1956 and the only entry
under which the Central Legislature had the jurisdiction to pass
the Act, was entry No. 5 in the third list of the Seventh Schedule
E of the Constitution. This entry is as follows:— “5-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
F 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
G 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”.
H 10
AIR 1970 Allahabad 238
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 939
[UDAY UMESH LALIT, J.]

11. The decisions rendered by various High Courts show the A
divergent views in the matter. Some High Courts have held that the
provisions of Section 22 of the Act would apply to agricultural lands and
in the process have followed the reasoning that weighed with the Orissa
High Court in Laxmi Debi7. On the other hand, some High Courts have
held to the contrary and have followed the decisions of the Punjab High
B
Court in Jaswant9 and of the Allahabad High Court in Prema Devi10. It
is the latter line of cases which is relied upon by the learned counsel for
the appellant in support of his submissions. It must also be stated that
wherever there was question of succession to tenancy rights in respect
of agricultural holdings, reference was made by some of the High Courts
viz. the High Court of Bombay in Tukaram Genba Jadhav and Ors. C
vs. Laxman Genba Jadhav and Anr.11 to the effect of the then existing
provision under Section 4(2) of the Act. We are not going into the
reasoning that weighed with various High Courts in every case, but
suffice it to say that the following chart may indicate how the question
was answered by some of the High Courts.
D
S.No. The provisions of the Act and The Act was held to be inapplicable to
Section 22 thereof applied to agricultural lands.
agricultural lands
1. Sm. Laxmi Debi vs. Surendra Jaswant and ors. vs. Smt. Basanti Devi
Kumar Panda and Ors. (1970 Punjab Law Reporter Vol. 72
(AIR 1957 Orissa 1) page No. 958)
2. Amar Singh and Ors. vs. Baldev Prema Devi vs. Joint Director of E
Singh and Ors. Consolidation (Head quarter) at
(AIR 1960 Punj 666 (FB) ) Gorakhpur Camp and Ors.
(AIR 1970 Allahabad 238)
3. Basavant Gouda vs. Nahar Hirasingh and Ors. vs. Dukalhin
Channabasawwa and Anr. and ors.
(AIR 1971 Mysore 151) (AIR 1974 MP 141) F
4. Nidhi Swain and Ors. vs. Khati Jeewanram vs. Lichmadevi and Anr
Dibya and Ors. (AIR 1981 Rajasthan 16)
(AIR 1974 Orissa 70)
5. Venkatalakshmamma & Ors. Vs. Balkaur Singh vs. Gurmail Singh
Lingamma & Anr. (2007 SCC OnLine P&H 1257)
(1984 SCC OnLine Kar 141) G
6. Tukaram Genba Jadhav and Ors. Subramaniya Gounder & Ors. vs.
vs. Laxman Genba Jadhav and Easwara Gounder
Anr. (2010-5-L.W. 941)
(AIR 1994 Bombay 247)
7. Bharat vs. Anjanabai
(2007 (6) Mh.LJ 706)
11
H
AIR 1994 Bombay 247 = (1994) 96 Bombay Law Reporter 227
940 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 12. As regards the High Court of Himachal Pradesh, from which
the present matter arises, the Division Bench of the High Court in Roshan
Lal (deceased) through his LRs. vs. Pritam Singh and ors. 5 had
considered all relevant decisions on the point and concluded that the
provisions of Section 22 of the Act would apply in relation to succession
to agricultural lands. The conclusion arrived at in the leading judgment
B
with which the other learned Judge concurred, was:-
“56. Thus, “succession” falls within the scope of entry No. 5 of
List-III and in case a narrow and pedantic or myopic view of
interpretation is adopted by accepting succession to an agricultural
land, bringing it within the scope of “rights in and over land”,
C impliedly no meaning would be attached to entry No.5 as each
and every word of the list must be given effect to. If there is no
local law on the subject, then the special law will prevail which in
the instant case is the Succession Act. The scope, object and
purpose of codifying Hindu Law is different. It is to achieve the
D Constitutional mandate. There is no provincial law dealing with
the subject. As such, the Central Act must prevail.”
The view taken by the Division Bench was followed by the High
Court in the present matter.
13. In the aforesaid background, we are called upon to decide the
E applicability of Section 22 of the Act in respect of agricultural lands.
Before we consider the issues in question, we must refer to the decision
of this Court in Vaijanath and ors. vs. Guramma and anr.12. In that
case matters pertaining to intestacy and succession relating to joint family
property including agricultural land, were dealt with by a State law which
had received the assent of the President. Following observations of this
F Court, are relevant for the present purposes:-
“8. There is no exclusion of agricultural lands from Entry 5 which
covers Wills, intestacy and succession as also joint family and
partition. Although Entry 6 of the Concurrent List refers to transfer
of property other than agricultural land, agriculture as well as land
G including transfer and alienation of agricultural land are placed
under Entries 14 and 18 of the State List. Therefore, it is quite
apparent that the Legislature of the State of Hyderabad was
competent to enact a Legislation which dealt with intestacy and
succession relating to Joint Family Property including agricultural
H land. The language of the Hindu Women’s Rights to Property
12
(1999) 1 SCC 292
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 941
[UDAY UMESH LALIT, J.]

Act, 1937 as enacted in the State of Hyderabad is as general as A
the Original Act. The words ‘property’ as well as ‘interest in Joint
Family Property’ are wide enough to cover agricultural lands also.
Therefore, on an interpretation of the Hindu Women’s Right to
Property Act, 1937 as enacted by the State of Hyderabad, the
Act covers agricultural lands. As the Federal Court has noted in
B
the above judgment, the Hindu Women’s Right to Property Act is
a remedial Act seeking to mitigate hardships of a widow regarding
inheritance under the Hindu Law prior to the enactment of the
1937 Act; and it ought to receive a beneficial interpretation. The
beneficial interpretation in the present context would clearly cover
agricultural lands under the word ‘property’. This Act also received C
the assent of the President under Article 254(2) and, therefore, it
will prevail.”
14. When the Federal Court was called upon to consider the matter,
Entry 21 of List II of 1935 Act had inter alia dealt with “transfer,
alienation and devolution of agricultural land”. It was in the exclusive D
domain of the provincial legislatures. The idea that the provincial
legislatures were alone entitled to deal with matters relating to “transfer,
alienation and devolution of agricultural land” was again made clear in
Entry 7 of List III by expression “…succession, save as regards
agricultural land” which dealt with concurrent powers. The provincial
legislature had thus exclusive competence with regard to transfer, E
alienation and devolution of agricultural land. In the circumstances, the
Federal Court had answered the first question that the provisions of
Hindu Women’s Rights to Property Act, 1937 and Hindu Women’s
Property (Amendment) Act, 1938 would not regulate succession to
agricultural lands in the provinces. F
15. But the situation underwent considerable change after the
Constitution of India was adopted.
(i) The subjects “Transfer, alienation of agricultural land” are
retained in the State List in the form of Entry 18 but the subject
“devolution” was taken out. G
(ii) As against earlier Entry 7 of List III where the subject,
“succession” came with express qualification, “…save as regards
agricultural land”, that qualification is now conspicuously absent
in comparable Entry 5 in the present List III. The expression in
Entry 5 today is “…intestacy and succession”. H
942 SUPREME COURT REPORTS [2019] 2 S.C.R.

A The changes indicated above as against what was earlier available
in Entry 21 of List II and Entry 7 of List III make the position very
clear. The present Entry 5 of List III shows “succession” in its
fullest sense to be a topic in the Concurrent List. The concept of
succession will take within its fold testamentary as well as intestate
succession. The idea is, therefore, clear that when it comes to
B
“transfer, alienation of agricultural land” which are transfers inter
vivos, the competence under Entry 18 of List II is with the State
legislatures but when it comes to “intestacy and succession” which
are essentially transfers by operation of law as per law applicable
to the person upon whose death the succession is to open, both
C the Union as well as State legislatures are competent to deal with
the topic. Consequently, going by the principles of Article 254 of
the Constitution of India the matter will have to be dealt with.
16. In the present case it is nobody’s case that the matter relating
to succession to an interest in agricultural lands is in any way dealt with
D by any State legislation operating in the State of Himachal Pradesh or
that such legislation must prevail in accordance with the principles under
Article 254 of the Constitution of India. The field is occupied only by
Section 22 of the Act insofar as State of Himachal Pradesh is concerned.
The High Court was, therefore, absolutely right in holding that Section
22 of the Act would operate in respect of succession to agricultural
E lands in the State.
17. Though, succession to an agricultural land is otherwise dealt
with under Section 22 of the Act, the provisions of Section 4(2) of the
Act, before its omission, had made it clear that the provisions of the Act
would not apply in cases inter alia of devolution of tenancy rights in
F respect of agricultural holdings. Thus, the effect of Section 4(2) of the
Act before its deletion was quite clear that, though the general field of
succession including in respect of agricultural lands was dealt with under
Section 22 of the Act, insofar as devolution of tenancy rights with respect
to agricultural holdings were concerned, the provisions of Section 22
G would be inapplicable. The High Court of Bombay was, therefore,
absolutely right in its conclusion. However, with the deletion of Section
4(2) of the Act, now there is no exception to the applicability of Section
22 of the Act. But we are not called upon to consider that facet of the
matter.

H
BABU RAM v. SANTOKH SINGH (D) THR. HIS LRS 943
[UDAY UMESH LALIT, J.]

18. We now turn to the next stage of discussion. Even if it be A
accepted that the provisions of Section 22 would apply in respect of
succession to agricultural lands, the question still remains whether the
preferential right could be enjoyed by one or more of the heirs. Would
that part also be within the competence of the Parliament ? The “right in
or over land, land tenures …..” are within the exclusive competence of
B
the State legislatures under Entry 18 of List II of the Constitution. Pre-
emption laws enacted by State legislatures are examples where
preferential rights have been conferred upon certain categories and
classes of holders in cases of certain transfers of agricultural lands.
Whether conferring a preferential right by Section 22 would be consistent
with the basic idea and principles is the question. C
19. We may consider the matter with following three illustrations:-
a) Three persons, unrelated to each other, had jointly purchased
an agricultural holding, whereafter one of them wished to dispose
of his interest. The normal principle of pre-emption may apply in
the matter and any of the other joint holders could pre-empt the D
sale in accordance with rights conferred in that behalf by
appropriate State legislation.
b) If those three persons were real brothers or sisters and had
jointly purchased an agricultural holding, investing their own funds,
again like the above scenario, the right of pre-emption will have to E
be purely in accordance with the relevant provisions of the State
legislation.
c) But, if, the very same three persons in illustration (b) had
inherited an agricultural holding and one of them was desirous of
disposing of his or her interest in the holding, the principles of F
Section 22 of the Act would step in.
The reason is clear. The source of title or interest of any of the
heirs in the third illustration, is purely through the succession which is
recognized in terms of the provisions of the Act. Since the right or
interest itself is conferred by the provisions of the Act, the manner in G
which said right can be exercised has also been specified in the very
same legislation.
Therefore, the content of preferential right cannot be disassociated
in the present case from the principles of succession. They are both part
of the same concept. H
944 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 20. When the Parliament thought of conferring the rights of
succession in respect of various properties including agricultural holdings,
it put a qualification on the right to transfer to an outsider and gave
preferential rights to the other heirs with a designed object. Under the
Shastrik Law, the interest of a coparcener would devolve by principles
of survivorship to which an exception was made by virtue of Section 6
B
of the Act. If the conditions stipulated in Section 6 were satisfied, the
devolution of such interest of the deceased would not go by survivorship
but in accordance with the provisions of the Act. Since the right itself in
certain cases was created for the first time by the provisions of the Act,
it was thought fit to put a qualification so that the properties belonging to
C the family would be held within the family, to the extent possible and no
outsider would easily be planted in the family properties. In our view, it
is with this objective that a preferential right was conferred upon the
remaining heirs, in case any of the heirs was desirous of transferring his
interest in the property that he received by way of succession under the
Act.
D
21. We, therefore, conclude that the preferential right given to an
heir of a Hindu under Section 22 of the Act is applicable even if the
property in question is an agricultural land. The High Court was right in
affirming the judgment and decree passed by the Court of District Judge,
Hamirpur in Civil Appeal No.86 of 1994. In the end, we must also declare
E that various decisions of the High Courts, some of which are referred to
above, which have held contrary to what we have concluded, stand
overruled.
22. The appeal is dismissed without any order as to costs.

F Nidhi Jain Appeal dismissed.

G

H