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IN THE HIGH COURT OF ALLAHABAD
Bind Basni Prasad, J.
ABDUL HAKIM - Appellant
Versus
JAN MOHAMMAD - Respondents
S. A. 976 Of 1947
Decided On : 07/24/1950
PRE-EMPTION - AGRA PRE-EMPTION ACT, 1922 - VALIDITY - REASONABLENESS - RESTRICTION ON RIGHT TO PROPERTY - U. P. REGULATION OF AGRICULTURAL CREDIT ACT, 1940 - SANCTION FOR EXCHANGE - NECESSITY - GUARDIAN OF MINOR - POWER TO ALIENATE IMMOVABLE PROPERTY - EXCHANGE OF PROPERTY - VALIDITY.
Fact of the Case:
Plaintiffs filed a suit for pre-emption of certain zamindari property sold by the defendants to Abdul Hakim, a minor, and others. The plaintiffs claimed that they had a right to pre-empt the property under the Agra Pre-emption Act, 1922. The defendants resisted the claim on various grounds, including that the Agra Pre-emption Act was void as it imposed an unreasonable restriction on the right to property guaranteed by Article 19(1)(f) of the Constitution of India. They also contended that the exchange of property between Abdul Hakim and the other defendants was invalid as it was not sanctioned by the Assistant Collector under Section 24 of the U. P. Regulation of Agricultural Credit Act, 1940.
Finding of the Court:
The court held that the Agra Pre-emption Act, 1922, was not void as it did not impose an unreasonable restriction on the right to property. The court also held that the exchange of property between Abdul Hakim and the other defendants was valid as the Assistant Collector had granted ex post facto permission for the exchange under Section 26(2) of the U. P. Regulation of Agricultural Credit Act, 1940. The court further held that the deed of exchange executed by Abdul Hakim's grand uncle, Abdul Jalil, on his behalf was valid as it was in the best interests of the minor and did not violate the principle of conservation of property.
Issues: 1. Whether the Agra Pre-emption Act, 1922, is void as it imposes an unreasonable restriction on the right to property guaranteed by Article 19(1)(f) of the Constitution of India? 2. Whether the exchange of property between Abdul Hakim and the other defendants is invalid as it was not sanctioned by the Assistant Collector under Section 24 of the U. P. Regulation of Agricultural Credit Act, 1940? 3. Whether the deed of exchange executed by Abdul Hakim's grand uncle, Abdul Jalil, on his behalf is valid?
Ratio Decidendi: 1. The court held that the Agra Pre-emption Act, 1922, is not void as it does not impose an unreasonable restriction on the right to property. The court noted that the law of pre-emption has been in existence in India for a long time and is aimed at preventing the fragmentation of zamindari property and helping in its consolidation. The court also noted that the law of pre-emption is for the welfare of the people as it avoids litigation, consolidates property, and helps to increase the production of wealth. 2. The court held that the exchange of property between Abdul Hakim and the other defendants is valid as the Assistant Collector had granted ex post facto permission for the exchange under Section 26(2) of the U. P. Regulation of Agricultural Credit Act, 1940. The court noted that the proviso to Section 26(2) empowers the Assistant Collector to grant ex post facto permission for permanent alienation and that when such permission has been granted, it will be deemed to have been given before the alienation was made. 3. The court held that the deed of exchange executed by Abdul Hakim's grand uncle, Abdul Jalil, on his behalf is valid as it was in the best interests of the minor and did not violate the principle of conservation of property. The court noted that Abdul Jalil was the de facto guardian of Abdul Hakim and that he had acted in the best interests of the minor by exchanging the property for another zamindari property in a different village.
Final Decision: The court allowed the appeal, set aside the decrees of the courts below, and dismissed the suit.
( 1 ) THIS is an appeal from the judgment and decree of the learned Civil Judge of Basti upholding the decree of the learned Munsif of Bansi by which he partially decreed a claim for preemption. The relevant facts are as follows:
( 2 ) ON 14-9-1944, Hari Prasad and Bhawa, defts. 10 and 11 sold certain Zamindari property to the defts. 1st party. There were originally seven vendees, one of them died during the pendency of the suit and his heirs, seven in number, were substituted in his place.
( 3 ) A perusal of the sale-deed shows that the sale of the vendees was in specified shares. Half of the property was sold to Abdul Hakin, minor,, deft. 7, who is applt. l in this Ct. , and the remaining half was told in equal shares to the rest of the vendees. The sale consideration was RS. 17,000. Some of the vendees were co-sharers with the vendors but some were strangers. On 1-11-1944,, the stranger vendees executed a deed of exchange in favour of the defts. second party and those vendees who were co-sharera from before the sale. The pltfs. assailed this exchange on the ground of fraud and also that it was void so far as Abdul Hakim, applt. I, was concerned as it was executed by an unauthorised person on his behalf. It was also contended that the exchange was invalid as the necessary sanction required by Section 12, U. P. Regulation of Agricultural Credit act, 1940, had not been obtained.
( 4 ) THE claim was resisted on a variety of grounds. Learned Munsif held that the pltfs. had a right to pre-empt the property, that there was no bar of estoppel as against them, that the exchange was not invalid for want of sanotion as required by the U. P. Regulation of Agricultural Credit act, 1940, because the revenue Ct. subsequently gave the sanction. It held, however, that as the deed of exchange on behalf of Abdul Hakim, minor was executed by his grand uncle, Abdul jalil, so it was void.
( 5 ) ON these findings, he decreed the claim of pre-emption in respect of half of the property sold to Abdul Hakim on payment of Rs. 8,500.
( 6 ) THE delts. went up in appeal and the learned Civil Judge upheld the findings of the trial Ct. and dismissed the appeal.
( 7 ) IN this Ct. this appeal has been filed by Abdul Hakim, minor, and Nand Lal who was one of the persons in whose favour the deed of exchange was executed. Other defts. are pro forma aresps.
( 8 ) THE first point taken on behalf of the applts. is that having regard to Articles. 13 (l) and 19 (l) (f), Const. Ind, the right of pre-emption no longer exists and the Agra Pre-emption Act, 1922, should fee deemed abrogated. These articles provide as follows :
"13. (1) All laws in force in the territory of India imediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of he Part, shall, to the extent of such inconsistency, be void. 19. (1) All citizens shall have the right. . . . . . . . . . . (f) to acquire, hold and dispose of property;"
"clause (5) of Article 19, however, provides as follows : " (5) Nothing in sub Clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law In so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Schedule tribe. "
( 9 ) THE whole question, therefore, is whether he Agra Pre-emption Act, 1922, imposes a reasonable or unreasonable restriction on the right of the citizens to acquire, hold and dispose of the property.
( 10 ) IT may be said at the outset that according to Article 872 (2), the President is empowered to make such adaptations and modifications in the laws in force in the territory of India immediately before the commencement of the Constitution, whether by way of appeal or amendment as may be necessary of expedient. It has not been shown to me that in exer
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