Validity of statute affecting agricultural land.

Subba Rao, J.-The plaintiff-respondent in this case challenges the constitutional validity of the Provincial Insolvency Amendment Act, 1948, in so far as it affected the agricultural land. The facts are in a small compass and may briefly be stated. The plaintiff and defendants 2 and 3 are the sons of the first defendant. The 14th defendant is the wife of the first defendant. They constituted members of a joint Hindu family of which the first defendant was the manager. He became heavily involved and was adjudged an insolvent in I.P.No.63 of 1931 on the file of the Court of the Subordinate Judge, Coimbatore. The plaint schedule properties were sold in the insolvency by the Official Receiver. Some items were purchased by one Srinivasa Ayyar on 24th July, 1933, under Exhibit P-2 and other properties by the fourth defendant under Exhibit P-4, dated 12th December, 1935. Defendants 4 to 13 are the alienees or their successors-in-interest. The usufructuary mortgage interest in the second item devolved on the 15th defendant and he is in possession of the same. The plaintiff filed O.S.No.109 of 1944, on the file of the Court of the Subordinate Judge, Coimbatore, for partition and possession of his one-fourth share in the plaint schedule properties mainly on the ground that the Official Receiver had no power to sell the shares of the members of the family other than the first defendant. Pending the suit defendants 2, 3, 4, 5, 7, 8, 11, 12 and 10 have entered into a compromise with the plaintiff and a compromise decree was passed in respect of them. The learned Subordinate Judge relying upon the provisions of the Provincial Insolvency Act as it then stood, held that the Official Receiver had no oower to sell the son’s shares in the family properties. He gave a decree to the plaintiff for the recovery of one-fourth share of the properties in the possession of the 9th defendant and the 15th defendant. The 15th defendant under the decree would be entitled to possession only after depositing a sum of Rs.2,500 in Court. The 15th defendant has preferred the above appeal, and defendants 2 and 3 have preferred cross-objections in so far as the lower Court did not give them a decree for partition and possession of their share.

Pending the appeal the Provincial Insolvency Amendment Act, 1948, was passed by the Dominion Legislature, and, under the amending Act, the power of the father to sell his son’s shares was declared to be property within the meaning of section 28 of the Provincial Insolvency Act. If the Amending Act is valid, the decree of the lower Court would be wrong.

The learned counsel for the plaintiff-respondent contended that the Provincial Insolvency Amendment Act of 1948 is ultra vires of the Dominion Legislature in so far as it encroached upon the forbidden field reserved for the Provincial Legislature under the Constitution Act. He further contended that the said Act should be confined in its operation to the subject-matter within the jurisdiction of the Dominion Legislature, i.e., the property excluding agricultural land which is entirely within the purview of the Provincial Legislature. To appreciate his arguments it will be convenient at this stage to notice the principles of construction laid down by decided cases. Lefroy’s Treatise on Constitutional Law contains the following statement:

“It seems quite possible that a particular Act, regarded from one aspect, might be intra vires of a Provincial Legislature, and yet, regarded from another aspect, might be also intra vires of the Dominion Parliament. In other words, what is properly to be called the subject-matter of an Act may depend upon what is the true aspect of the Act.”

The learned author proceeds to say:

“The cases which illustrate this principle show, by ‘aspect’ here must be understood the aspect or point of view of the legislator in legislating, the object, purpose and scope of the legislation. The word is used subjectively of the matter legislated upon.”

In In re C.P. and

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