Act XVIII of 1937 could not be made applicable to agricultural land without fresh legislation after the Constitution came into force.

A.N.Grover, J.

1. This is an appeal under clause 10 of the Letters Patent against a judgment of a learned Single Judge dismissing the suit of the appellant, Hari Dass Minor.

2. One Ram Nath, who belonged to village Raipur, tahsil Una, District Hoshairpur, died on 28th February, 1956, leaving behind two widows Mst. Savitri and Mst. Hukmi. The appellant is his son from the former and Mst. Soma Wanti is his daughter from the latter. On 21st June, 1956, the land belonging to Ram Nath was mutated equally in favour of Mst. Hukmi and the appellant. Sometime afterwards the appellant instituted a suit for a declaration that the land belonged to him and that the mutation in favour of Mst. Hukmi was illegal and ineffective and for an injunction to restrain her from interfering with his possession. Alternatively he prayed for a decree for possession. According to Mast. Hukmi, she was an heir along with the plaintiff under Hindu Law by which the parties were governed, and, in any event, she was entitled to retain possession of the land in lieu of maintenance.

The trial Court framed appropriate issues and after deciding them, decreed the suit for possession. On appeal the learned District Judge only varied the decree to the extent that the property was made subject to a charge in favour of Mst. Hukmi in the sum of Rs. 133. 29 nP. annually on account of maintenance payable in equal installments of Rs. 66. 64 nP. Mst. Hukmi filed an appeal to this Court which came up before Shamsher Bahadur, J. The Contention which found favour with him was that under the Hindu Womens Rights to Property Act (Act No. XVIII) of 1937 (hereinafter to be referred to as Act XVIII of 1937) Mst. Hukmi would be entitled to one-half share as a widow. While holding that Act XVIII of 1937 was not within the legislative competence of the Central Legislature when it was enacted so far as agricultural land was concerned, the learned Judge was of the view that on the enactment of the Constitution the shadow that had been cast on it was lifted inasmuch as under List III of the Seventh Schedule, Item 5, the subject-matter of "wills, intestacy and succession" came with the concurrent field without the qualification which was attached to that subject in the Government of India Act, in Item 7 of List III.

He relied on a decision of the Supreme Court in Bhikaji Narain V/s. State of Madhya Pradesh, (s) AIR 1955 SC 781 and observed- "The impugned Act had suffered only from a temporary eclipse and the shadow which had been cast on the impugned Act was removed by the Constitution of India * * * *"

He did not decide the other point which had been raised before him with regard to the quantum of maintenance.

3 Mr. D. N. Aggarwal contends that the learned Single Judge did not properly appreciate and apply the law laid down in Bhikaji Narains case, (S) AIR 1955 SC 781 by the Supreme Court and that Act XVIII of 1937 could not possibly be made applicable in case of succession to agricultural land. In Umayal Achi V/s. Lakshmi Achi, AIR 1945 FC 25 one Arunachalam Chettiar had executed a will in respect of his extensive properties. After his death, his daughter-in-law while disputing the will claimed certain rights under Act XVIII of 1937. Admittedly under the ordinary Hindu Law she was not an heir to his estate. The defence raised inter alia was that Act XVIII of 1937 was invalid. Another question which arose was whether under Act XVIII of 1937, even if valid, the plaintiff would be entitled to any share in the agricultural lands.

At page 31 it was observed- "In dealing with the last contention, it may be conceded that Act 18 of 1937 cannot affect the devolution of agricultural land in the Governors Provinces; but it would not follow that the Act was on this account wholly ultra vires the Indian Legislature. It was pointed out in the advisory opinion given by this Court that on the principle of the decision in Macleod V/s. Attorney General for New South Wales, 1891 Ac 455, the general