Judgement

Appeal (No. 62 of 1945), by special leave, from a judgment and order of the Federal Court of India (May 8, 1942) by which a judgment and decree of the High Court at Lahore (February 27, 1941), dismissing appeals brought by the appellant and respondents Nos. 2 and 3 respectively from the judgment and decree of the Subordinate Judge, IV. Class, Sialkot (July 22, 1940), were set aside and directions given with regard to the framing of proper issues and the remittal of the case to the trial court for further trial and decision.

The questions which arose in this appeal were — (r.) Whether, and if so, how far, s. 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938 (Punjab Act X. of 1938), whereby a new section,

s. 13a, was introduced into the Punjab Alienation of Land Act, 1900 (Indian Act XIII. of 1900) was ultra vires as being in contravention of s. 298 of the Constitution Act; and (2.) whether the provisions of s. 5 of the impugned Act applied retrospectively so as to affect transactions entered into before its enactment.

Section 13A was headed "III.—A.—Benami Transactions” and provided as follows—" 13.—A. (1.) When a sale, " exchange, gift, will, mortgage, lease or farm purports to be " made either before or after the commencement of the " Punjab Alienation of Land (Second Amendment) Act, 1938, " by a member of an agricultural tribe to a member of the " same agricultural tribe or of a tribe in the same group, but " the effect of the transaction is to pass the beneficial interest "to a person who is not a member of the same tribe or of " a tribe in the same group, the transaction shall be void for all " purposes, and the alienor shall be entitled to possession of " the land so alienated, notwithstanding the. fact that he may " have himself intended to evade the provisions of this Act.

"(&) If the Deputy Commissioner, either of his own motion " or on the application of the alienor, is satisfied after making " such enquiries as may be prescribed from the parties concerned, and recording evidence that an alienation is void " under the provisions of the preceding sub-section, he shall by " order in writing, after recording his reasons, eject any person " in occupation of the land under such sale, exchange, gift, u will, mortgage, lease or farm, and place the alienor in 11 possession."

Until after the decision of the Federal Court, s. 298 of the Government of India Act, 1935, provided as follows — " 298. (1.) No subject of His Majesty domiciled in India shall " on grounds only of religion, place of birth, descent, colour or " any of them be ineligible for office under the Crown in India, " or be prohibited on any such grounds from acquiring, holding " or disposing of property or carrying on any occupation, " trade, business or profession in British India.

" (2.) Nothing in this section shall affect the operation of any " law which—

" (a) prohibits, either absolutely or subject to exceptions, the " sale or mortgage of agricultural land situate in any particular " area, and owned by a person belonging to some class " recognized by the law as being a class of persons engaged in 11 or connected with agriculture in that area to any person not " belonging to any such class ; or

" (b) recognizes the existence of some right, privilege or " disability attaching to members of a community by virtue 14 of some personal law or custom having the force of law.

" (3.) Nothing in this section shall be construed as derogating " from the special responsibility of the Governor-General or of " a Governor for the safeguarding of the legitimate interests of " minorities.”

By s. 4 of the India and Burma (Temporary and Miscellaneous Provisions) Act, 1942, two amendments of s. 298 were made, the only material one being the substitution of a new paragraph (a) of sub-s. 2 of s. 298, as follows —

" (a) prohibits, either absolutely or subject to exceptions, " dispositions of agricultural land situate in any particular " area and owned by a pe