230 239 241 249 251 256 257 290 303 306 349 351 352 355 357 of 1955 and Nos 33  36 of 1956
Petitions under Article 32 of the Constitution of India
480 Achhru Ram and Naunit Lal for the petitioners in Petitions Nos 239 241  251 of 1955
Naunit Lal for the petitioners in Petitions Nos 249  250 of 1955
BD Sharma and K L Mehta for the petitioners in Petitions Nos 290 303 306 349 351 355 357 of 1955 and 36 of 1956
B D Sharma for the petitioner in Petition No 33 of 1956
K L Mehta for the petitioner in Petition No 352 of 1955
I N Shroff for the petitioners in Petitions Nos
230 238 256 257 of 1955
H N Sanyal Additional Solicitor General of India M N Kaul and T M Sen for the respondents
November 14
The Judgment of the Court was delivered by WANCHOO J
These sixty nine petitions under article 32 of the Constitution by various land owners in the former State of Ajmer attack the validity of the Ajmer Abolition of Intermediaries and Land Reforms Act 1955 Ajmer III of 1955 hereinafter called the Act
The petitions disclose a large number of grounds on which the validity of the Act is impugned but learned counsel Mr Achhru Ram and Mr B D Sharma appearing for various petitioners have confined their arguments only to certain grounds raised in the peti tions
We propose therefore to consider only the grounds urged before us
The Act was passed by the Ajmer Legislative Assembly and received the assent of the President on May 29 1955
Section 4 of the Act provided for vesting of all estates held by intermediaries as defined in the Act in the State Government from a date to be notified
The Act came into force on June 23 1955 and August 1 1955 was notified as the date on which the estates held by intermediaries would vest in the State Government
The present petitions followed on the fixing of this date
It is not disputed that the Act is protected under article 31 Ala of the Constitution inasmuch as it is a 481 piece of legislation for acquisition by the State of any estate or of any rights therein
The argument is that in spite of this protection either the whole Act or certain provisions of it are invalid for reasons urged by learned counsel on behalf of the petitioners
Mr Achhru Ram attacks only sections 8 and 38 of the Act
Mr Sharma attacks the competency of the Ajmer legislature to pass the Act and also urges that in any case it does not apply to the case of jagirdars one of whom is a petitioner before us in Petition No 33 of 1956
These four are the only grounds that have been urged before us and we shall deal with them seriatim
Re section 8
Section 8 is in these terms  Where an intermediary has on or after the 1st day of June 1950 a granted a lease of any land in the estate or any part thereof for any non agricultural purposes other than mining for a period of three years or more or b granted a lease or entered into a contract relating to any forest fishery or quarry in his estate for a period of three years or more  Or cgranted a lease for the cultivation of any area of bir or pasture or waste land  and the Collector is satisfied that such lease or contract was not made or entered into in the normal course of management but in anticipation of legislation for the Abolition of Intermediaries the Collector may subject to any rules made under this Act by order in writing cancel the lease or the contract as the case may be It provides for cancellation of certain leases granted on or after June 1 1950 where the lease is for a period of three years or more with respect to matters dealt with in cls
a and b and where the lease is for any period in respect of matters dealt with in cl
The Collector has been given the power to cancel such leases if they are not made in the normal course of management but in  anticipation of legislation for abolition of intermediaries
The argument is that 61 482 there can be no retrospective cancellation of leases granted at a time when the land owner had a right to dispose of his property as he liked under article 191f and there was no restriction on such right
It is said that in certain contingencies the cancellation of a lease might expose the land owner to the risk of paying compensation to the lessee particularly in cases where the land owner might have realised the entire lease money in one lump sum for a lease of more than three years  duration
We are of opinion that there is no force in this contention
The legislature was certainly competent under entry 18 of List 11 of the Seventh Schedule to the Constitution relating to Land to make this provision
It cannot be disputed that the legislature has power in appropriate cases to pass even retrospective legislation
Provisions for cancellation of instruments already executed are not unknown to law for example the Insolvency Acts provide for setting aside transfers made by insolvents under certain circumstances
Therefore the Ajmer Legislature certainly had the power to enact such a provision and in the circumstances in which this provision has been made in the Act it cannot be said that it is not protected under article 31 A
The provision is not an independent provision it is merely ancillary in character enacted for carrying out the objects of the Act more effectively
The intention of the legislature was to give power to the Collector after the estates vested in the State Government to scrutinise leases of this kind made after June 1 1950 which was apparently the date from which such legislation was under contemplation and to see whether the leases were such as a prudent land owner would enter into in the normal course of management
Such leases would be immune from cancellation  but if the Collector found that the leases were entered into not in the normal course of management but designedly to make whatever the land owners could before the estate came to be transferred to the State Government he Was given the power to cancel the same as they would obviously be a fraud upon the Act
Such cancellation would subserve the purposes of the Act and 483 the provision for it would therefore be an integral part of the Act though ancillary to its main object and would thus be protected under article 31 A 1a of the Constitution
Re section 38
Section 38 reads as follows Notwithstanding any agreement usage decree or order of a court or any law for the time being in force the maximum rent payable by a tenant in respect of the land leased to him shall not exceed one and half times the revenue payable in respect of such land
 This section provides for fixing the maximum rent at fifty per cent
above the land revenue and it is urged that this is an unreasonable restriction on the right of the land owner to let his holding
The object of this legislation is to do away with intermediaries and for that reason the estates held by intermediaries have been  made to vest in the State Government tinder section 4
Chapter VI of the Act however provides for allotment of lands for personal cultivation to intermediaries whose estates have been taken over upto a certain limit and the intermediaries who have been allotted lands under section 29 of the Act are called Bhuswamis or Kashtkars according to the nature of the lands allotted to them see section 30
Bhuswamis and Kashtkars hold land directly from the Government and pay revenue to the Government see section 32
The intention of the Act therefore is that intermediaries who have been allotted lands should cultivate them personally
But section 37 permits Bhuswamis to let the whole or any part of the land allotted to them while Kashtkars are forbidden from letting any part of their land except in certain circumstances when they are suffering from some disability
In order however that the main object of the Act namely that the land should be cultivated by the person to whom it is allotted and that there should be no rackrenting is attained section 38 has been provided fixing the maximum rent at 50 per cent
above the land revenue
Thus the profit which a Bhuswami 484 can make by letting his land is so reduced compared to what he would earn if he cultivated it himself as to discourage him from letting the land and becoming a new kind of intermediary
Section 38 therefore is another ancillary section like section 8 and is meant to subserve the purposes of the Act namely the abolition of all intermediaries and encouragement of self cultivation of the land
We are therefore of opinion that section 38 is also protected under article 31 Ala of the Constitution as an ancillary provision necessary for the purposes of carrying out the objects of the Act
The competency of the Ajmer Legislation
The argument in this behalf is put in this way
The Act is a piece of legislation for the acquisition of estates
Before the Constitution Seventh Amendment Act 1956 came into force on November 1 1956 there were two entries relating to acquisition of property in the Seventh Schedule namely entry 33 of List 1 acquisition or requisitioning of property for the purpose of the Union and entry 36 of List IIacquisition or requisitioning of property except for the purposes of the Union subject to the provisions of entry 42 of List 111
The argument continues that the Act was passed by the Ajmer legislature under the power it was supposed to have under entry 36 of List 11 read with section 21 of the Government of part C States Act 1951 XLIX of 1951
But entry 36 of List 11 only gives power to the State legislature to acquire property for purposes other than the purposes of the Union
As however the property aquired under the Act vested in the President and therefore the Union after its acquisition the Act was really for the acquisition of property for the purposes of the Union and could not have been passed by the Ajmer legislature
In support of this argument Mr Sharma referred us to various Articles of the Constitution in Part XII thereof relating to Finance Property Contracts and Suits and also articles 73 and 239
He contends that these provisions show that before the Government of Part C States Act was passed the legislative power with respect to the areas comprised in Part C States 485 was in the Union which also through the President had executive power over the subjects over which the Parliament could legislate with respect to what were Part C States
After the passing of the Government of Part C States Act by virtue of the power conferred on Parliament by article 240 there was no change so far as the executive power in Part C States was concerned and it is still vested in the President
Any property acquired for the purposes of Part C States vests in the President or the Union
Therefore according to him the Ajmer legislature would have no power to enact a law for acquiring estates under entry 36 of List 11 for the property so acquired would really be for the purposes of the Union and no law under that entry could be made for acquiring property for the purposes of the Union
We are of opinion that the argument though plausible must be rejected
Assuming without deciding
that even after the passing of the Government of
Part C States Act any property acquired for a Part C State vested in the Union Government by virtue of the provisions of Part XII of the Constitution the question still remains whether the Ajmer legislature could make a law under entry 36 of List II acquiring estates even though the estates when acquired may legally vest in the Union Government
Now entry 33 of List I refers to acquiring of property for the purposes of the Union
It does not lay down in whom the property should vest after it has been acquired
Similarly entry 36 of List 11 speaks of acquisition of property except for the purposes of the Union and makes no mention in whom the property should vest after it has been acquired
Entry 42 of List II which deals with compensation for such acquisition as well as for acquisition for any other public purpose also does not speak where the property should vest after acquisition
It is not necessary therefore to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under those two entries
The key to the interpretation of these two entries is not in whom the property would vest after it has been acquired but whether the 486 property is being acquired for the purposes of the Union in one case or for purposes other than the purposes of the Union in the other
It is in this context that the competency of the Ajmer legislature to enact this law under entry 36 of List 11 is to be judged
Section 21 of the Government of Part C States Act created a Legislative Assembly for Ajmer and gave that legislative assembly power to make laws for the whole or any part of the State with respect to any of the matters enumerated in List II or List III of the seventh Schedule to the Constitution
Ajmer legislature was thus given power to pass laws with respect to acquisition of property for purposes other than those of the Union
In other words it bad the power to make law to acquire property for the purposes of the State of Ajmer or for any other public purpose
The question then is whether the Act was passed acquiring estates in the State of Ajmer for the purposes of the State of Active of where the title may vest
The answer to this question to our mind can only be one the Act was passed by the State legislature for acquiring estates within the State and it could only have been for the purposes of the State
There is no reason to limit the meaning of these general words namely the purposes of the State  by importing in them the idea of where the property would vest after its acquisition
That the purposes for which the estates were acquired were purposes of the State of Ajmer would be quite clear from the fact that now that the State of Ajmer is part of the State of Rajasthan the estates acquired under the Act have gone to Rajasthan and have not been kept by the Union on the ground that the title vested in the Union
Therefore as the estates were acquired in this case for the purposes of the State of Ajmer the Act would be within the competency of the Ajmer legislature as it falls within the plain words of entry 36 of List 11
Jagirdars
The contention on behalf of the petitioner in petition No 33 of 1956 is that under the Act the word intermediary includes a jagirdar
The Act also provides that the definitions in the Ajmer Tenancy and Land 487 Records Act 1950 Ajmer XLII of 1950 will be imported where the words used in it are not defined
The word I jagirdar is defined in the Ajmer Tenancy and Land Records Act as a person to whom the revenue of any land has been assigned under a sanad issued by the Chief Commissioner before the commencement of the Ajmer Land and Revenue Regulation l877  see section 2 15 
It is not in dispute that a sanad was issued to a predecessor of the petitioner before 1877  but it is urged that a jagirdar is merely the assignee of land revenue and so far as that assignment is concerned it may be said to have been acquired under the Act
But the petitioner besides being an assignee of land revenue is also owner of land and that interest of his has not been acquired under the Act
We are of opinion that there is no force in this argument
The word I estate  is defined in section 2v of the Act as having the same meaning as assigned to it in the Ajmer Land and Revenue Regulation 1877
The Ajmer Regulation does not define the word estate  as such but it has defined the word  Malguzar  as a person liable under section 64 for payment of the revenue assessed upon an estate under section 2d
Further section 64 provides that all persons who are bound by the agreement prescribed by section 61 and their successors ininterest shall while they continue to be owners of land in the Estate to which such agreement relates be jointly and severally liable for the payment of the whole amount of revenue assessed upon such estate
The Ajmer Regulation also defines particular types of estates like  Istimrari Estate  and Bhum  but the general meaning of the word estate  under the Ajmer Regulation is an area of land separately assessed to revenue which is payable by the holder of the estate
I Intermediary  as defined in section 2 viii of the Act is a holder of an estate and includes a jagirdar
Under section 4 all the estates held by intermediaries Vest in the State Government on the issue of a notification
Therefore if the jagirdars are intermediaries that is holders of estates their estates will vest in the State Government under section 4 of the Act
The distinction which the learned counsel for this petitioner draws between the 488 interest of the jagirdar as jagirdar and as land owner is in our opinion wholly unfounded
A perusal of annexures B C and D filed by the
petitioner himself would make this clear
Anexures B and C are sanads with respect to the jagirs held by the petitioner
Entry in the remarks column of annexure IS begins with the words  Grant of this estate lasts 
Similarly in annexure C the opening words in the remarks column are  The Grant is to the Dudhadhari for the time being
No part of the estate is transferable by sale or mortgage 
Therefore the grants themselves designated these jagirs as estates
They were assessed to revenue which was however remitted and the estates thus came to be known as revenue free jagirs and the estate holder was designated as jagirdar
It was because of this remission of the land revenue that the word I jagirdar  was defined in the Ajmer Tenancy and Land Records Act 1950 as assignee of land revenue
Annexures B and C also show that when the grants were made before 1877 a large part of the area covered by the grant was uncultivated
Annexure D shows that disputes arose between the jagirdars and the Biswedars in these jagirs about these uncultivated lands and one such dispute was decided as late as 1954
In that judgment annexure D history of jagir tenure was traced and it was held that the jagirdar was the owner of uncultivated land in his jagir and not the Biswedar
Therefore the distinction which has been drawn by the learned counsel between the jagirdar as an assignee of land revenue based on the definition in the Ajmer Tenancy and Land Records Act 1950 and the same person as the land owner is unfounded
It appears that though the jagirdar may have been defined as assignee of land revenue because of the peculiar fact that in the case of a jagirdar there had been remission of land revenue by sanads granted before 1877 he was the proprietor of his jagir and the grantee of the estate given to him as jagir There is no question therefore of separating the interest of jagirdar as the assignee of land revenue from his interest as the holder of jagir estate by virtue of a grant before 1877
The petitioner therefore in petition 489 No 33 of 1956 is the holder of the jagir estate and therefore his entire interest in the estate is liable to resumption under the Act
In the Ajmer Regulations Vol
H to L at pp
564 6 these two estates have been considered and their history is given and they are called jagirs
The history of jagirs in Rajasthan was considered by this Court in Thakur Amarsinghji vs State of Rajasthan 1 at p 330 onwards and the word I jagir  was hold to connote all grants which conferred on the grantees rights in respect of land revenue
In the case of these two jagirs also as annexures B and C show land revenue was remitted and they were granted as estates for particular purposes
They are therefore clearly estates in view of the origin of the title of the holder of these estates who is called a jagirdar and therefore the State could take them over under section 4 of the Act
There is no force in any of the points raised on behalf of the petitioners and the petitions fail and are hereby dismissed with one set of costs to the contesting respondent
Petitions dismissed


Summary:
One Vellappa Rawther deceased had incurred debt by means of two promissory notes for Rs25000 and Rs50000
In the suits filed on the basis of the promissory notes the Trial Court granted a decree against the estate of Vellappa Rawther in the hands of defendants 2 to 10
The High Court on appeal modified the decree reducing it to one fourth of the decreed sum and focussed the liability on defendant Respondent No 2 absolving others of the re maining liability on the bar of limitation
Such view was taken as the facts established that the liability to dis charge debts of Vellappa Rawther after his death was indi vidually on his heirs proportionate to the extent of their share in the estate devolving on them and since the debt had become time barred acknowledgment of the same by de fendant respondent No 2 as well as partial payment of the debt by him rendered him alone liable to meet liability to the extent of one fourth related to the share of the estate which as a Muslim heir he received from the deceased
Before this Court it was claimed on behalf of the appellant that under sections 18 and 19 of the Limitation Act the acknowledgment and partial payment saved limitation against all and thus the entire debt could be recovered from defendant respondent No 2 he being in possession of the estate lying joint
Dismissing the appeal this Court HELD 1 The debt of the deceased gets divided in shares by operation of Muslim Personal Law amongst the heirs proportionate to their shares in the estate
The theory of sanctity of the integrity of the 434 debt is apparently foreign in the case of a deceased muslim leaving debt and some estate both being divisible amongst his heirs
247G Mohd
Abdul Qadeer vs Azamatullah Khan and 8 Others 1974 1 Andhra Weekly Reporter 98 Vasantam Sambasiva Rao vs Sri Krishna Cement and Concrete Works Tenali 1977 Andhra Law Times Reports at 528 NK Mohammad Sulaiman vs
NC Mohammad Ismail and Others at 940 re ferred to
2 It would be right to treat it settled that muslim heirs are independent owners of their specific shares simul taneously in the estate and debts of the deceased their liability fixed under the personal law proportionate to the extent of their shares
248H Jafri Begum vs Amir Muhammad Khan 1885 Vol
7 ILR Allahabad series referred to
3 The heirs of a muslim are by themselves independent debtors the debt having been split by operation of law
Inter se they have no jural relationship as co debtors or joint debtors so as to fall within the shadow of contrac tors partners executors or mortgagees or in a class akin to them
They succeed to the estate as tenants in common in specific shares
250D 4 Even a signed written acknowledgment by the princi pal or through his agent would bind the principal and not anyone else standing in jural relationship with the princi pal in accordance with section 202 of the Limitation Act
The Muslim heirs inter se have no such relationship
250E 5 If the debt is one and indivisible payment by one will interrupt limitation against all the debtors unless they come within the exception laid down in section 202
And if the debt is susceptible of division and though seem ingly one consists really of several distinct debts each one of which is payable by one of the obligors separately and not by the rest section 20 keeps alive his part of the debt which has got to be discharged by the person who has made payment of interest
It cannot affect separate shares of the other debtors unless on the principal of agency express or implied the payment can be said to be a payment on their behalf also
250H 251A Abheswari Dasya and Another vs Baburali Shaikh and Others AIR 1937 Cal 191 referred to
435 6 The property of the co heirs supposedly in posses sion of defendant respondent No 2 cannot be touched direct ly in his hand unless the co heirs being parties to the suit are held liable to pay their share of the debt the debt being recoverable
251F