JUDGMENT

Gwyer, C.J. - This is a special reference which His Excellency the Governor-General has been pleased to make to the Court Under Section 213, Constitution Act. The questions referred are:

(1) Does either the Hindu Women's Rights to Property Act, 1937(Central Act, 18 of 1937), which was passed by the Legislative Assembly on 4th February 1937, and by the Council of State on 6th April 1937, and which received the Governor-General's assent on 14th April 1937, or the Hindu Women's Rights to Property (Amendment) Act, 1938(Central Act, 11 of 1938), which was passed In all its stages after 1st April 1937, operate to regulate (a) succession to agricultural land? (b) devolution by survivorship of property other than agricultural land?

(2) Is the subject of devolution by survivorship of property other than agricultural land included in any of the entries in the three Legislative Lists in Schedule 7, Government of India Act, 1935?

2. There being no "opposite party" properly so called to this reference, it was not considered necessary or useful to serve any parties with notice of the reference. But as the Court desired to hear the various possible viewpoints presented and argued, it suggested to the Advocate-General of India the desirability of inviting brief statements from the Advocates-General of the Provinces, containing the point of view that each of them wished to present and argu-ments in support thereof. The Advocate-General of India has filed a statement on behalf of the Government of India and he has also placed on the file statements from the Advocates-General of seven of the Provinces. As the Court further intimated that besides hearing the Advocate-General of India it would be prepared to hear two more counsel, the Advocates-General of Madras and the United Provinces appeared and took part in the argument. The Court is indebted to all the learned counsel for the assistance which they have afforded it.

3. The doubts which have led to the reference arise from the fact that the bill which became the Hindu Women's Rights to Property Act, 1937 (Act 18 of 1937), which for convenience is hereafter referred to as Act 18, was passed by the Legislative Assembly of the Indian Legislature on 4th February 1937, that is, before Part III, Constitution Act, came into operation and at a time when the powers of the Legislature were plenary, but was passed by the Council of State only on 6th April 1937, that is, after Part III had come into operation, and received the Govenor-General's assent only on 14th April 1937. After 1st April 1937, the Central Legislature was precluded from dealing with the subjects enumerated in List II of Schedule 7, Constitution Act, so far as the Governors' Provinces were concerned. Laws with respect to the "devolution of agricultural land" could be enacted only by the Provincial Legislatures (entry No. 21 of List II), and "wills, intestacy and succession, save as regards agricultural land" appeared as entry No. 7 of List III, the Concurrent List. Act 18, read with the amending Act of 1938, endeavoured to improve the position of Hindu widows in two classes of cases (a) where by the operation of the principle of survivorship the widow is excluded from enjoyment of the share of her husband in property which he held jointly with other coparceners; and (b) where, even apart from the rule of survivorship, the widow is excluded from claiming any share in her husband's estate by reason of the existence of sons, grandsons or great-grandsons of the deceased who under the law take in preference to the widow. Provision is also made for securing a share to a widow even in cases where her husband had pre-deceased the last male owner (Section 3(1), first proviso). The Act purports to deal in quite general terms with the "property" or "separate property" of a Hindu dying intestate, or his "interest in joint family property"; it does not distinguish between agricultural land and other property and is therefore not limited in terms