Appeals Nos
139 147 214 and 510 of 1961
Appeals by special leave from the judgment and decrees dated October 8 21
1959 and March 41959 of the Punjab High Court in R section A No 473 of 1959 LPA No 332 of 1959 RSA Nos 921 of 1959 and 508 of 1953
J P Goyal for the appellant in C A No 139 of 1962
861 Nanak Chand for respondent No 1
in C A No 139 of 1962
Hardyal Hardy and N N Keswani for the appellants in C A No 147 of 1961
Dayal Swarup Mehra and K R Choudhuri for respondent No 1 in C A No 147 of 1961
Hardev Singh and Y Kumar for appellants Nos 2 to 5 in C A No 214 of 1961
K L Gosain and M L Aggrawala for respondents Nos 1 to 4 in C A No 214 of 1961
P section Safeer for the appellant in C A No 510 of 1961
Achhru Ram and B D Jain for the respondent in C A No 510 of 1961
August 30
The Judgment of the Court was delivered by AYYANGAR J
These four appeals which have been filed pursuant to special leave granted by this Court principally raise for consideration the constitutional validity of section 15 of the Punjab Preemption Act Act 1 of 1913 hereinafter referred to as the Act
The property involved in these appeals are agricultural lands and in each one of them decrees have been passed in favour of the preemptors whose claim to preempt was based on different sub clauses of section 15 and the vendees who are the appellants in the several appeals challenge the constitutional validity of the law under which the suits have been decreed
One of the appeals Civil Appeal No 214 of 1961 however could be decided without considering the constitutional point regarding the validity 862 of section 15 of the Act and it would therefore be convenient to dispose it of first
The facts giving rise to the appeal are briefly as follows The 5th and 6th respondents before us owned certain agricultural land in village Dugri which they sold to the appellants by a deed dated April 25 1957
Res pondents 1 to 4 instituted a suit against the appellants to which the vendors respondents 5  6 were also impleaded as co defendants
The right of preemption was based on the plaintiffs being the nearest collaterals of the vendors and heirs according to the rule of succession
There were certain points of dispute on the facts but these are not now material and it is sufficient to state that the suit was decreed by the Subordinate Judge on December 10 1958
This judgment in favour of respondents 1 to 4 was affirmed by the District Judge on appeal and on further appeal by the High Court
It is from this judgment and decree of the High Court that the vendees who are the appellants before us have brought the matter to this Court
The appellants were five in number
They fell into two groups constituted respectively by the 1st and 2nd appellants who are brothers and by appellants 3 4 and 5
While the appeal was pending in this Court the 1 at appellant Mehar Singh died on May 18 1960 leaving a widow and five children four daughters and a son as his heirs
No application was however made to bring on record the legal representatives of the deceased 1st appellant Mehar Singh and learned Counsel appearing for the other four appellants informed the office that the legal representatives were not being brought on record and that he would proceed with the appeal on behalf of the four surviving appellants
At the hearing of the appeal learned Counsel for the respondents submitted that the appeal ought 863 to be dismissed as incompetent since the same had abated on the death of the first appellant without his legal representatives being brought on record
Learned Counsel for the appellants however contended that whatever might be the position as regards the share to which Mehar Singh was entitled in the property purchased the interest of the deceased was distinct and separate from that of the others and that the abatement could be in any event only partial and would not affect the continuance of the appeal by the surviving appellants at least as regards their share in the property
As the deed of sale under which the appellants purchased the property was not among the printed records of this Court the appeal was adjourned in order to enable learned Counsel for the appellants to produce
it and substantiate his contention that the interest of the deceased Mehar Singh wag distinct and separate
An English translation of the deed of sale has now been produced before us and a perusal of it indicates that the submission made on behalf of the appellants is not sustainable
The consideration for the sale is a sum of Rs22750and the conveyance recites that Mehar Singh and the second appellant bad paid one half amounting to Rs 11375 while the other three appellants had paid the other half It is therefore not a case of a sale of any separated item of property in favour of the deceased appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares
It is clear law that there can be no partial pre emption because preemption is the substitution of the pre emptor in place of the vender and if the decree in favour of the preemptors in respect of the share of the deceased Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for 864 preemption insofar as appellants 2 to 5 are concerned is interfered with
Where a decree is a joint one and a part of the decree has become final by reason of abatement the entire appeal must be held to be abated
It is not necessary to cite authority for so obvious a position but we might refer to the decision of this court in Jhanda Singh vs Gurmukh Singh deceased 1
The result is that the appeal fails as having abated and is dismissed with costs
Civil appeal No 139 of 1961 The material provision of section 15 of the Act relevant for the consideration of the constitutional point raised in this appeal is section 15a but as the validity of other clauses of the same section are challenged in the other appeals we consider it convenient to set out the other relevant ones also 15
Subject to the provisions of section 14 the right of preemption in respect of agricultural land and village immoveable property shall vest a where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned or held is by all the co sharers jointly in the persons in order of succession who but for such sale would be entitled on the death of the vendor or vendors to inherit the land or property sold b where the sale is of a share out of joint land or property and is not made by all the co sharers jointlyfirstly in the lineal descendants of the vendor in order of succession 1 Civil Appeal No 344 of 1956 decided on April IO 1962
865 secondly in the co sharers if any who are agnates in order of succession c If no person having a right of pre emption under clause a or clause b seeks to exercise it         thirdly in the owners of the estate The following few facts are necessary to be stated to appreciate the manner in which the question arises
One Ram Nath sold certain agricultural land of an area of about 65 bighas in village Durjanpur in District Sangrur of Punjab to the second respondent Pooran by a deed of sale dated December 12 1957
The vendee Pooransold the land he had purchased in favour of Ram Sarup appellant before us
Subsequently Munshi the first respondent brought a suit Suit 297 of 1958 in the Court of the Subordinate Judge First Class at Narwana stating that he was the son of vendor Ram Nath and claiming preemption under is
15 of the Act
There were rival claims for preempting the same property and another suit was filed in regard to it which was tried along with the suit by Munshi but this failed and is no longer of relevance
The main contest to the suit by Munshi was based upon a denial of the fact that be was the son of Ram Nath
This issue was found in favour of the respondent by the Subordinate Judge who decreed the suit which judgment was confirmed successively by the District Judge on appeal and thereafter by the High Court on second appeal
It was therefore common ground that if section 15a was constitutionally valid the sale by Ram Nath was subject to the right of Munshi to preempt and that consequently his suit was properly decreed
866 The constitutional validity of section 15 was not contested before the High Court because of the decision of a Full Bench of that Court which had upheld its validity
It was only at the stage of an application for a review of the Judgment of the High Court that this point was raised but the learned Judges rejected it and it was on the ground of this constitutional point that special leave was granted and that is the only point for consideration in this appeal
Before adverting to the points urged by learned Counsel as regards the constitutional validity of section 15 it is necessary to notice an argument urged on behalf of the appellant for sustaining a contention that even apart from the unconstitutionality of the provision the right of pre emption conferred by section 15a has ceased to be enforceable
The argument under this head was rested on the opening words of section 15 and certain other provisions to which we shall immediately advert
It would be noticed that a 15 opens with the words Subject to the provisions of section 14 the right of preemption in respect of agricultural land  shall vest
Section 14 runs in these terms 14
No person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of pre emption in respect of agricultural land sold by a member of an agricultural tribe
 The expression agricultural tribe referred to in section 14 is defined in section 34 of the Act thus member of an agricultural tribe and group of agricultural tribes shall have the meanings assigned to them respectively under the Punjab Alienation of Land Act 1900
 867 Next it would be seen that a 15 employs the words in respect of agricultural land
Agricultural land is defined in section 31 of the Act thus  agricultural land  shall mean land as defined in the Punjab Alienation of Land Act 1900 as amended by Act 1 of 1907 but shall not include the rights of a mortgagee whether usufructuary or not in such land Section 6 of the Act enacts 6
A right of preemption shall exist in respect of agricultural land and village immoveable property but every such right shall be subject to all the provisions and limitations in this Act contained
 and section 23 enacts No decree shall be granted in a suit for pre emption in respect of the sale of agricultural land until the plaintiff has satisfied the Court a that the sale in respect of which pre emption is claimed is riot in contravention of the Punjab Alienation of Land Act 1900 and b that he is not debarred by tile provisions of section 14 of this Act from exercising the right of preemption Now by the Adaptation of Laws Third Amendment Order 1951 the Punjab Alienation of Land Act 1900 has been repealed and the argument urged by the learned Counsel for the appellant was that by reason of the repeal of that Act the right of preemption granted by section 15a has become unavailable
The argument was somewhat on these lines
It is under section 6 that the right of preemption is recognised and granted though section 15 868 sets out the circumstances in which it arises
Under section 6 the right is a in respect of agricultural land  and b the right conferred by the Act is subject to every provision and limitation contained in it
In the Act as originally framed before the amendment effected by the Adaptation of Laws Third Amendment Order 1951 i e before the repeal of the Punjab Alienation of Land Act 1900 there were two principal limitations on the right of preemption in respect of agricultural land 1 it applied only to such land as was defined in the Punjab Alienation of Land Act and 2 by virtue of section 14 there was a limitation of the group of persons who might claim the right of preemption if a sale took place by a member of an agricultural tribe and the expression member of an agricultural tribe was as defined by the Punjab Alienation of Land Act
Section 15 therefore was subject to the limitations of section 14 and to the definition of agricultural land  and agricultural tribe  and this read in conjunction with the positive provision in s23 has become wholly inapplicable and unworkable after the repeal of the Punjab Alienation of Land Act of 1900
The problem here raised is dependent upon the construction which the several provisions which we have set out earlier would bear after the repeal of the Punjab Alienation of Land Act 1900
One thing is clear and that is that the authority which effected the repeal of the Punjab Alienation of Land Act did not consider that Punjab Act 1 of 1913 had itself to be repealed
We shall now consider the effect of the repeal of the Punjab Alienation of Land Act with reference to each of the provisions Definition of agricultural land  under 831 Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act 869 has in general no effect upon the construction or effect of the Act in which its provisions have been incorporated
The effect of incorporation is stated by Brett L J in Clarke vs Bradlaugh 1 Where a statute is incorporated by reference into a second statute the repeal of the first statute by a third does not affect the second
 In the circumstances therefore the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Preemption Act and the expression agricultural land  in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it
Section 2 of the Punjab Alienation of Land Act 1900 as amended by Act 1 of 1907 defined Land  as follows The expression land  means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes sub servient to agricultural or for pasture and includes      It is not in dispute that the land concerned in the claim for preemption made in the appeal satisfies this definition
We shall next take up the effect of the repeal of the Punjab Alienation of Land Act 1900 on s14 of the Act and of the definition contained in a 3 4 thereof of the expression member of an agricultural tribe and the effect of these on the right of preemption conferred by section 15a
With the repeal of the Punjab Alienation of Land Act 1900 it is manifest that s14 would lose all 1 870 significance but this does not help in any manner the contentions urged by learned Counsel for the appellant
It would be seen that section 14 is restrictive in that in the case of the alienations by persons referred to in that section the right of preemption is conferred upon a limited group
With the repeal of the Punjab Alienation of Land Act 1900 the restriction imposed by section 14 as regards the availability of the right of preemption to particular agricultural tribes would disappear
In other words the effect of the removal of the limitation of section 14 would only be that the opening words of section 15 cease to operate
In such circumstances section 14 would lose all significance because the post Constitution law does not recognise membership of tribes as conferring any special rights and consequently the elimination of section 14 would leave a 15 without the limitation originally imposed upon it
In the same manner the restriction imposed upon the passing of decrees by section 23 could also not operate after the repeal of the Punjab Alienation of Land Act but that would leave the Court with an unfettered power to grant decrees under the provisions of the Act i e without the limitations imposed by a 23
We are therefore clearly of the opinion that neither the repeal of the Punjab Alienation of Land Act 1900 nor the consequential removal of the fetters imposed by sections 14 and 23 have the effect of rendering the substantive provision contained in section 15 not available to those who satisfy its terms
In these circumstances we have necessarily to consider the main question raised by learned Counsel for the appellant viz that the rights conferred upon the pre emptor is an unreasonable restriction on the right of vendors to hold and dispose of property and of prospective vendees to acquire property guaranteed to citizens of India by article 191 f of the Constitution
871 Before proceeding to consider the question about the constitutional validity of a 15a of the Act it is necessary to mention that section 15 of the Act has been the subject of very substantial amendments effected by the Punjab Preemption Amendment Act of 1960 Act 10 of 1960
This however makes no difference to the present appeal since the relevant portion of section 15 as amended reads  15
1 The right of preemption in respect of agricultural land and village immoveable property shall vest a where the sale is by a sole owner FIRST in the son or daughter or son s son or daughter s son of the vendor In view of this feature it is needless to consider in this appeal as to whether the amending Act is retrospective and if so the degree of retrospectivity a question which falls for decision only in Civil Appeal No 510 of 1961
It is common ground that the right of preemption granted by the statute is a restriction on the right to hold and dispose of property on the part of the vendor the right guaranteed by Art191f of the Constitution
The question however is whether the restriction imposed is reasonable and in the interest of the general public within article 195 of the Constitution
The general question about the impact of the right conferred by article 191f on the right of preemption has been dealt with exhaustively in the judgment of this Court in Bhau Ram vs Baij Nath 1 and it is 1 1952 Supp
3 SCR 724 872 unnecessary to cover the ground again
The proper approach to the question would be as to whether the grounds which are stated to underlie the provision are reasonable judged in the light of present day standards and needs of the community and are in the interests of the general public
The question about the reasonableness of this restriction contained in 3
15 of the Act was considered by a Full Bench of the High Court of Punjab in Uttam Singh vs Kartar Singh 1 and as the grounds stated there have been referred to with approval in subsequent decisions of the Punjab High Court and were relied on before us by learned Counsel for the respondent we might as well extract the passage in full  It is plain that the objects underlying as 15 and 16 of the Act may be briefly enumerated as follows  1 to preserve the integrity of the village and the village community 2 to avoid fragmentation of holdings 3 to implement the agnatic theory of the law of succession 4 to reduce the chances of litigation and friction and to promote public order and domestic_comfort and 5 to promote private and public decency and convenience
 The reference here in the above passage to the promotion of public order and domestic comfort and to Private and public decency and convenience obviously have relevance to urban immoveable property dealt with in section 16
The 1 A 1
R 1954 Punjab 55
873 grounds on which the reasonableness of the right of pre emption granted by law in regard to agricultural property dealt with in section 15 would therefore appear to be the first four of the above
Among them much stress could not be laid on the avoidance of chances of litigation and friction because the existence of the right of preemption could also give rise to litigation which otherwise might not exist
Nor can the ground of avoidance of fragmentation of holdings afford assistance to sustain the claim of a son to preempt in the event of a sale by a sole owner father for that criterion has primary relevance to the right of preemption enjoyed by co sharers and the like
The grounds for upholding section 15a as reasonable and in the interest of the general public therefore finally resolve themselves into two 1 to preserve the integrity of the village and the village community and 2 to implement the agnatic rule of succession
The objective underlying the first ground is prima facie reasonable and calculated to further the interest of the general public
It was however pointed out by learned Counsel for the appellant that with the large scale migration of population into Punjab consequent on the problems created by partition there has been a disintegration of the village community and that in the circumstances what is at the present date imperatively required is not the keeping out of strangers from rural areas but rather for their being absorbed into the village community and that in that context the existence of a law which prevented such absorption could not be characterized as being either reasonable or in the interests of the general public
Though we see some force in this submission of learned 874 Counsel we are unable to accept it as a final and conclusive answer to the argument against the reasonableness of the provision for we find that in the schemes for rehabilitation of the refugees the principle of the integrity of the village community and the need to maintain some degree of cohesion as regards the population in each village has been observed and indeed forms the basis of the methods by which different groups of refugees were settled in various parts of the Punjab
It has thus been possible to reconcile somewhat the needs of the refugees being settled in India with the preservation of the integrity of the village community
Even if this ground cannot serve to sustain the constitutionality of the provision we consider that the other ground viz that the next in succession should have the chance of retaining the property in the family would suffice to render the restriction reasonable and in the interest of the general public within article 195
In this connection we might refer to the reasoning in the decision of the Rajasthan High Court in Siremal vs Kantilal1 where the learned Judges struck down as unconstitutional a provision in a 3 of the Marwar Preemption Act which granted a right of preemption to persons related within three degrees to the vendor of the house or building plot provided that the nearer in degree shall have priority over one more remote as an unreasonable restriction on the right conferred by article 191f of the Constitution
The basis of this ruling was that the impugned enactment conferred the right of preemption on all relations within three degrees and did not restrict it to the members of the family
Under s15 of the Act particularly after the amendment effected by Act 10 of 1960 the right of preemption is confined to the members of the family 1 AIR 1954 Rajastban 195
875 of the vendor i e those who would have succeeded to the property in the absence of any alienation
The relevant portion of section 15 1 after amendment reads 15
1 The right of preemption in respect of agricultural land and village immoveable property shall vest a where the sale is by a sole ownerFIRST in the son or daughter or son s son or daughter s son of the vendor SECONDLY in the brother or brother s son of the vendor THIRDLY in the father s brother or father s brother s son of the vendor FOURTHLY    No doubt the son and the other members of the family would not have been entitled to a present interest in the property alienated and consequently would not have a right to prevent the alienation in which event however it is needless to add that a right to preempt wan wholly unnecessary as a means of preserving the property but they would have a legitimate expectation of succeeding to the property an expectation founded on and promoted by the consciousness of the community
If the social consciousness did engender such feelings and taking into account the very strong sentimental value that is attached to the continued possession of family property in the Punjab it could not be said that the restriction on the right of free alienation imposed by section 151a limited as it is to small class of near relations of the vendor is either unreasonable or not in the interest of the general public
The result is the appeal fails and is dismissed with costs
876 Civil Appeal No 147 of 1961
The facts giving rise to this appeal are briefly as follows  The appellant Dalip Singh purchased under a deed dated June 1 1957 agricultural land measuring 98 bighas and 10 biswas situated in village Bailerkha in district Sangrur under a registered deed of sale
The vendors were Nihal Singh Wazir Singh and Gurdial Singh who are respondents 2 to 4 before us
Sunder Singh brother of respondents 2  3 and uncle of the 4th respondent filed a suit in the Court of the Sub Judge Narwana for preemption basing his claim under section 15a of the Act
It is manifest that even under the amended section 15 a person in the position of the first respondent has a right to preempt
It would be seen that under section 15a as it originally stood the right of pre emption is conferred upon persons who would succeed as heir to the vendor in the event of his death
In other words preemption in such cases is the grant of an option to the heirs to retain property in the family
As we have already pointed out in dealing with the claim by a vendor s son in Appeal 139 of 1961 we consider that the provisions contained in section 15a as it originally stood as well as in the modified form in which it has been reenacted do not transgress the limits of reasonableness required by Art195 of the Constitution
As the constitutionality of s15a was the only ground which was or could be canvassed before us in this appeal and as we are rejecting it follows that the appeal fails
It is accordingly dismissed with costs
Civil Appeal No 510 of 1961 What now remains to be dealt with is Civil Appeal 510 of 1961
This appeal arises out of a suit filed by the first respondent as plaintiff for preemption of certain agricultural land in village 877 Fatehabad in Amritsar district
The sale which gave rise to the suit was under a deed dated December 29 1949 in favour of the appellate Singh
The claim to preempt was based on section 15 c thirdly of the Punjab Preemption Act 1913 which has already been set out
The expression  estate which is used in cl
c thirdly is not defined by the Act but by reason of its section 3 6 the definition in section 3 of the Punjab Land Revenue Act 1887 is attracted to it
Turning now to section 3 of the Punjab Land Revenue Act Act XVII of 1887 it defines an estate  as meaning inter alia any area for which a separate record of rights has been made
 It was the case of the plaintiff first respondent before us that he owned land in the estate whereas the under the appellant before us did not own any land there
The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an estate sought to prove that he too owned land in the same village and estate but in this he failed
As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial Court on November 8 1951 and an appeal and second appeal there from were also dismissed
It was from this judgment of the High Court that this appeal has been brought and the principal point on which leave was granted related to the constitutionality of the provision in section 15 of the Pre emption Act upon which the respondent based his claim to preempt
In regard to the point about the Considerational validity of section 15 c thirdly we consider that the case is clearly covered by the judgment of this Court in Bhau Ram vs Baij Nath 1 where the Court upheld the validity of the right of preemption granted under Ch XIV of the Berar Land Revenue Code Appeal 430 of 1958
In the 1 1962 Supp 3 section CR 724 878 case of an estate within section 3 of the Punjab Land Revenue Act of 1887 section 61 of the Act enacts 61 1 In the case of every estate the entire estate and the landowner or if there are more than one the landowners jointly and severally shall be liable for the land revenue for the time being assessed on the estate  Provided that
a the State Government may by notification declare that in any estate a holding or its owner shall not be liable for any part of the land revenue for the time being assessed on the estate except that part which is payable in respect of the holding and b    2 A notification under proviso a to sub section 1 may have reference to any single estate or to any class of estates or estates generally in any local area
 Thus it will be seen that an estate is an unit of assessment and there is a joint and several liability on persons owning land within the estate  to pay the entire assessment due on the estate
Thus though it is not really the case of a co sharer it is somewhat akin to that of a co sharer because of the joint liability for payment of land revenue
We therefore consider that the restriction on the right of a vendor in such a case is a reasonable one and not repugnant to article 19 of the Constitution
As learned Counsel for the appellant desired to have time to ascertain whether there had been a notification of the Local Government such as is referred to in a 61 of the Punjab Land Revenue 879 Code we adjourned the case to enable him to produce the notification if there was one and we were informed that there was none
If therefore the matters had stood as under the law as enacted in section 15 of the Act the appeal would have to be dismissed
The Punjab Legislature however effected substantial amendments to the Punjab Preemption Act of 1913 by Punjab Act 10 of 1960 and it is the impact of this later legislation on the rights of the parties to this appeal that now requires to be considered
Punjab Act 10 of 1960 received the assent of the Governor on February 2 1960 and was published in the Punjab Government Gazette two days later
By section 4 of the Amending Act section 15 of the parent Act was repealed and in its place was substituted a new provision which omitted to confer a right of Preemption in the case of persons owning land in the estate I as the original section 15 c thirdly had done
Retrospective effect was giving to the provisions contained in the Amending Act by the insertion of a new section 31 in the parent Act Which read 31
No court shall pass a decree in a suit for preemption whether instituted before or after the commencement of the Punjab Pre emption Amendment Act 1959 which is inconsistent with the provisions of the said Act
It may be mentioned that the figure 1959 in section 31 is an obvious mistake for 1960 which is the correct year of the Amending Act
The question now for consideration is whether by reason of this amendment in the law the respondent is entitled to the benefit of the decree which he obtained under the previously existing enactment
That section 31 is plainly retrospective and that it affects 880 rights to preemption which had accrued before the coming into force of the Amending Act is not in controversy for section 31 in plain terms makes the substantive provisions of the enactment applicable to suits whether instituted before or after the commencement of the Amending Act
It was urged before us by learned Counsel for the appellant that in view of the plain language of section 31 this Court should apply the substantive law enacted by the Punjab Legislature in the amended section 15 of the Preemption Act and set aside the decree for preemption passed in favour of the first respondent
In this connection learned Counsel referred us to the judgment of the Federal Court in Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri1 as to the course which this Court would adopt in giving effect to Amending legislation interfering with the rights of parties in pending appeals and to the decision of a Division Bench of the Punjab High Court in Ram Lal vs Raja Ram2 where the learned Judges on a construction of section 31 of the Act set aside a decree for pre emption passed in favour of the respondent before the Court giving effect to the provisions contained in Punjab Act 10 of 1960
Mr Achhru Ram learned Counsel for the respondent however submitted that the language employed in the new section 31 was not sufficient to permit a decree passed in favour of a pre emptor being set aside by an appellate Court merely because the ground on which preemption had been claimed and decreed was not one that was included within the amended provisions
He placed reliance on the principle that besides the rule of construction that retrospective operation is not in the absence of express words therefore to be given to a statute so as to impair existing rights except as regards matters of procedure there was a further 1 2 881 well recognised rule that a statute was not to be construed to have a greater retrospective operation than its language rendered strictly necessary
The argument was that though by the use in section 31 of the words Suit for preemption instituted before or after the commencement of the Act a certain amount of retrospective effect was intended still the retrospectivity was but partial in its operation and that the words used did not permit the setting aside by an appellate Court of a decree which was validly passed under the substantive law applicable to the facts at the date of the original decree
In this connection he placed considerable reliance on the employment of the words no decree shall be passed in the opening words of section 31 as indicative of a ban only on the passing of a decree an event which be contended would occur firstly when a trial Court passed a decree and secondly when the trial Court having refused a decree the appellate Court is called upon to pass a decree which the trial Court should properly have done and in no other Contingency
On this reasoning the contention was urged that where a trial Court had passed a decree and that decree gave effect to the law as it stood up to the date of that decree the words of section 31 did not enable an appellate Court to set aside that decree on the ground of a change in the substantive law effected by the Amending Act
Through we agree that there is a presumption against the retrospective operation of a statute and also the related principle that a statute will not be construed to have a greater retrospective operation than its language renders necessary we consider that in the present case the language used in section 31 is plain and comprehensive so as to require an appellate court to give effect to the substantive provisions of the Amending Act whether the appeal before it is one against a decree granting preemption or one refusing that relief
The decision of the 882 Federal Court in Lachmeshwar Prasad vs Keshwar Lal 1 on which learned Counsel for the appellant relied fully covers this case
The question there raised related to the duty of the Federal Court when an amending Act enacted after the decree appealed from was passed adversely interfered with the rights of the respondent before the Court
The learned Judges held
that the provisions of the Act were clearly retrospective and should be applied to the decree which was the subject matter of appeal before it and the appeal was accordingly allowed and remitted to the High Court for effect being given to the new legislation
Mr Achhru Ram however sought to suggest that the language of section 7 of the Bihar Moneylenders Act 1939 which was the subject of construction before the Federal Court was differently worded and was of wider amplitude
That section ran 7
Notwithstanding anything to the contrary contained in any other law or in anything having the force of law or in any agreement no Court shall in any suit brought by a money lender before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit pass a decree for an amount of interest for the period preceding the institution of the suit which together with any amount already realised as interest through the Court or otherwise is greater than the amount of loan advanced or if the loan is based on a document the amount of loan mentioned in or evidenced by such document In particular learned counsel stressed the fact that unlike in section 31 of the Act now under consideration in the Bihar Act there were specific references to 1 883 appeals and revision and that this made a difference
But in our opinion this makes no difference since it is admitted that section 31 even according to the respondent has to be given effect to not merely by a trial Court but also by an appellate Court only learned Counsel could urge that the appellate Court could give effect to the Amending Act only in cases where the trial Court has refused a decree for pre emption
No distinction can therefore be rested on the ground that the Bihar Act specifically referred to appeals and revisions seeing that the relevant operative words in section 7 of the Bihar Act were no Court shall pass a decree words which occur in section 31 of the Act as well
On the other hand the reasoning of the learned Judges of the Court which was based on the nature of an appeal under the Indian procedural law as a rehearing and a court of appeal being not a court of error merely and the view expressed that when an appeal was filed the finality which attached to the decree of the trial court disappeared all these lines of reasoning point to the fact that even when an appellate court dismisses an appeal it also is passing a decree
In this connection we consider that the reasoning and the conclusion of the Division Bench of the Punjab High Court in Ram Lal vs Raja Ram 1 correctly sets out the principles underlying the scope of an appeal as well as the proper construction of section 31 of the Amending Act
It was not suggested that if the provisions of section 15 as amended by Punjab Act 10 of 1960 had to be applied the decree in favour of the respondent could be sustained
The result therefore is that the appeal has to be allowed the decree in favour of the respondent set aside and the respondent s suit for preemption dismissed
In view however of 1 884 the circumstances that the appellant has succeeded only by virtue of subsequent legislation we direct that there shall be no order as to costs in the appeal
Appeals Nos
139 147 and 214 dismissed
Appeal No 510 Allowed


Summary:
The owner of certain agricultural land in Punjab sold it to the second respondent by a deed dated December 12 1957 The son of the vendor claimed that he had a right of Pre emption and instituted a suit against the appellant who pur chased the land from the first respondent and relied upon the provisions in s15 a of the Punjab Pre emption Act 1913
The appellant pleaded 1 that the right of Pre emption conferred by section 15a of the Punjab Pre emption Act 1913 had ceased to be enforceable on the repeal of the Punjab Alienation of Land Act 1900 by the Adaptation of Laws Third Amend
ment  Order 1951 in view of sections 3a34 61423 of the Pre emption Act of 1913 and 2 that in any case s 15a of the Punjab Pre emption Act 1913 was repugnant to article 191f of the Constitution of India
Held that 1 the repeal of the Punjab Alienation of Land Act 1900 had no effect on the continued operation of the Punjab Pre emption Act 1913 and that the expression agricultural land in the later Act had to be read as if the definition of the Alienation of Land Act had been bodily transposed into it
Clark vs Bradlaugh18818 QBD 63 relied on
859 2 the effect of the repeal of the Punjab Alienation of Land Act 1900 was that the restrictions imposed by sections 14 and 23 of the Punjab Pre emption Act 1913 would disappear leaving the court with an unfettered power to grant decrees to those who satisfied the terms of s15
3 the restriction on the right of free alienation imposed by section 15abeing intended i to preserve the integrity of the village and the village community and ii to implement the agnatic rule of succession are reasonable and culculated to further the interest of the general public
The provisions contained in section 15a as it originally stood as well as in the modified form after the amendment effected by Act 10 of 1960 do not transgress the limits of reasonableness required by article 195 of the Constitution and are valid Bhau Ram vs Baij Nath 1962 Supp 3 section CR 734 and Uttam Singh vs Kartar Singh  Others AIR 1954 Punjab 55 relied on
In Civil Appeal No 510 of 1961 the sale which give rise to the suit was under a deed dated December 29 1949 in favour of the appellant and the first respondent s claim to pre empt was based on section 15cthirdly of the Punjab Preemption Act 1913
The suit was decreed by the trial court on November 81951 and when the matter was under appeal in which the question of the constitutional validity of s15c thirdly was raised the Act was amended by Punjab Act 10 of 1960 by which inter alia 1s15 of the original Act was repealed and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons owning land in the estate as the original section 15c thirdly had done and2 retrospective effect was given to the provisions contained in the Amending Act by the insertion of a new section 31 which provided that no court shall pass a decree in a suit for pre emption whether instituted before or after the commencement of the Punjab Pre emption Amendment Act 1960 which is inconsistent with the provisions of the said Act
 Held 1 the restriction on the right of a vendor in cases arising out of s19 cthirdly of the Punjab Pre emption Act 1913 was a reasonable one and that the provisions in the section were not repugnant to article 191f of the Constitution
Bhau Ram vs Baij Nath  Others
1962 Supp
3 SCR 724 followed
860 2 the language used in s 31 was comprehensive enough so as to require an appellate court to give effect to the substantive provisions of the amending Act whether the appeal before it was one against a decree granting pre emption or one refusing that relief
Consequently in view of section 31 the decree for preemption passed by the trial court could not be sustained
Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri  relied on
Ram Lal vs Raja Ram approved
In Civil Appeal No 214 of 1961 the properties in respect of which respondents 1 to 4 bad instituted a suit claiming a right of preemption had been sold to the appellants by a deed dated April 25 1957 for a consideration of Rs 22750 out of which appellants 1 and 2 had paid one half amounting to Rs 11375 while the other three appellants had paid the other half
The recitals showed that it was not a case of sale of separated items of the properties in favour of the two sets of the vendees but that they were to be enjoyed by them in equal shares
A decree for pre emption was passed against the vendees who took the matter on appeal
While the appeal was pending the first appellant died but no application was made to bring on record his legal representatives
that the appeal must be dismissed as having abated on the death of the first appellant without legal representatives being brought on record
Where a decree is a joint one and a part of the decree has become final by reason of abatement the entire appeal must be held to be abated