The Hindu Women's Rights to Property Act, 1937 did not become applicable to agricultural lands after the commencement of the present Constitution.

( 1 ) THE present dispute relates to the pre-emption of plot No. 1292 of khatian No. 87 of mouza Paschim Narayanpur, district Hooghly appertaining to an occupancy holding originally belonging to Dukhiram Pal, Ananda Pal and Jatindra Pal in equal shares. Dukhiram died leaving behind him his son Panchanan (opposite party No. 4), as his only heir; Ananda died leaving behind him his son Gopal O. P. No. 5) as his only heir. Jatindra died leaving behind him a son Nemai and the widow Thakodamoyee. Nemai alone, according to the petitioner, inherited one-third share in the disputed plot which is agricultural land. On 5. 9. 59 the pre-emptors (opposite parties Nos. 1, 2 and 3) purchased one-third share of the disputed plot from Thakodamoyee by a registered kobala on the footing that on the death of Jatindra his widow Thakoda inherited one-third share of the disputed plot. The remaining two-third share of the disputed plot was purchased by the petitioner on 16. 11. 59 from opposite parties Nos. 4 and 5 by a registered kobala.

( 2 ) OPPOSITE parties Nos. 1, 2 and 3, filed an application under Section 26f of the Bengal Tenancy Act for pre-empting two-third share of the disputed plot purchased by the petitioner. The petitioner objected to the application for pre-emption. The petitioner's case inter alia was that the kobala executed by Thakodamoyee in favour of the opposite parties Nos. 1 to 3 was fraudulent, void and without consideration; that Thakodamoyee had no interest in the disputed land to sell, and that the said kobala was executed by her suppressing the fact that Jatindra left a son Nemai.

( 3 ) BY his judgment and order dated 29. 7. 60, Mr. G. C. Mukherjee, Munsif, First Court, Hooghly allowed the application for pre-emption. Against the aforesaid order the petitioner preferred Misc. Appeal No. 346 of 1960 of the Court of the District Judge, Hooghly and on 19. 1. 61, Mr. T. P. Mukherjee, District Judge, Hooghly, sent the case back to the learned Munsif for determining the date of death of Jatindra Pal, husband of Thakodamoyee, holding that the Hindu Women's Rights to Property Act, 1937 would apply to agricultural land after the coming into operation of the Constitution of India.

( 4 ) THE case sent back to the Court of first instance in order to ascertain whether the pre-emptors, that is to say, opposite parties Nos. 1 to 3 acquired any interest in the disputed land by reason of their purchase from Thakodamoyee, widow of Jatindra.

( 5 ) THE lower appellate Court has found that the disputed plot must be regarded as agricultural land. The validity of this finding has not been challenged before us. The Hindu Women's Rights to Property Act, 1937 had no application to agricultural lands. Therefore Takodamoyee could not have acquired interest in the disputed plot as an heir of Jatindra under the said Act as it stood before the Constitution of India. The lower appellate Court however thinks on the authority of an Orissa decision Luxmi Dasi v. Surendra Kumar, AIR 1957 Orissa 1, that the said Act became applicable to agricultural lands after the Constitution of had some into force. The view of the lower appellate Court is quoted below :-"thakodamoyee could inherit the property along wither son only under the Hindu Women's Rights to Property Act. The Act however did not apply to agricultural lands so long as the Government of India Act was in operation. It was held in the case reported in (1) AIR 1957 Orisa 1, that the legislative incompetence of the Central Legislature was the ground on which it was held by the Federal Court in the case reported in (2) AIR 1941 FC 72, that agricultural lands did not come within the purview of the Hindu Women's Rights to Property Act and that incompetence having been removed with the coming into operation of the Constitution of India, that Act will now apply to agricultural lands also and the Federal Court decision above could no longer hold good. "

( 6 ) IN this order for remand the lowe