VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS.

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A legislative competence of the State Legislature being relatable to Entry 18 in List II of the Seventh Schedule.”

28Copy pinpoint28. The principles on the point were summed up by this Court in Welfare Association, A.R.P., Maharashtra and Another vs. Ranjit P. Gohil and Others34 as under:- B “25. What should be the approach of the Court dealing with a challenge to the constitutionality of a legislation has been succinctly set out in Principles of Statutory Interpretation by Justice G.P. Singh (8th Edn., 2001 at pp. 453-54 and 36). A statute is construed so as to make it effective and operative on the principle expressed in the maxim “ut res magis valeat quam pereat”. (It is better to validate a thing than to invalidate it.) There is a presumption that the legislature does not exceed its jurisdiction. The burden of establishing that the Act is not within the competence of the legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. If a case of violation of a constitutional provision is made out then the State must justify that the law can still be protected under a saving provision. The courts strongly lean against reducing a statute to a futility. As far as possible, the courts shall act to make a legislation effective and operative.

26. In Charanjit Lal Chowdhury v. Union of India35 the Constitution Bench held that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. … … …

28. The fountain source of legislative power exercised by Parliament or the State Legislatures is not Schedule 7; the fountain source is Article 246 and other provisions of the Constitution. The G function of the three lists in the Seventh Schedule is merely to demarcate legislative fields between Parliament and States and not to confer any legislative power. The several entries mentioned in the three lists are fields of legislation. The Constitution-makers 34 (2003) 9 SCC 358 H 35 AIR 1951 SC 41 : 1950 SCR 869

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purposely used general and comprehensive words having a wide import without trying to particularize. Such construction should be placed on the entries in the lists as makes them effective; any construction which will result in any of the entries being rendered futile or otiose must be avoided. That interpretation has invariably been countenanced by the constitutional jurists, which gives the words used in every entry the widest-possible amplitude. Each general word employed in the entries has been held to carry an extended meaning so as to comprehend all ancillary and subsidiary matters within the meaning of the entry so long as it can be fairly accommodated subject to an overall limitation that the courts cannot extend the field of an entry to such an extent as to result in inclusion of such matters as the framers of the Constitution never intended to be included within the scope of the entry or so as to transgress into the field of another entry placed in another list.

29Copy pinpoint29. In every case where the legislative competence of a legislature in regard to a particular enactment is challenged with reference to the entries in the various lists, it is necessary to examine the pith and substance of the Act and to find out if the matter comes substantially within an item in the list. The express words employed in an entry would necessarily include incidental and ancillary matters so as to make the legislation effective. The scheme of the Act under scrutiny, its object and purpose, its true nature and character and the pith and substance of the legislation are to be focused at. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power (see the Constitution Bench decision in Chaturbhai M. Patel v. Union of India36). F 37

30Copy pinpoint30. In Diamond Sugar Mills Ltd. v. State of U.P the Constitution Bench defined the two bounds between which the stream of interpretative process dealing with entries in the Seventh Schedule must confine itself and flow. One bank is the salutary rule that the words conferring the right of the legislation should be G interpreted liberally and the powers conferred should be given the widest amplitude; the other bank is guarding against extending the meaning of the words beyond their reasonable connotation in 36 AIR 1960 SC 424 : (1960) 2 SCR 362 37 AIR 1961 SC 652 : (1961) 3 SCR 242 H

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A an anxiety to preserve the power to legislate. The working rule of the game is to resolve, as far as possible, in favour of the legislative body any difficulty or doubt in ascertaining the limits.

31Copy pinpoint31. A note of caution was sounded by the Constitution Bench in Synthetics & Chemicals Ltd. v. State of U.P. 38 . The B Constitution must not be construed in any narrow or pedantic sense and that construction which is most beneficial to the widest-possible amplitude of its power must be adopted. An exclusionary clause in any of the entries should be strictly and, therefore, narrowly construed. No entry should be so read as to rob it of its entire content. A broad and liberal spirit should inspire those whose duty it is to interpret the Constitution. The Constitution is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted. To bring any particular enactment within the purview of any legislative power, it is the pith and substance of the legislation in question that has to be looked into by giving the widest amplitude to the language of the entries. The Constitution must be interpreted in the light of the experience gathered. It has to be flexible and dynamic so that it adapts itself to the changing conditions in a pragmatic way. The undisputed constitutional goals should be permitted to be achieved by placing an appropriate interpretation on the entries. The E Constitution has the greatest claim to live. The claim ought not to be throttled. The directive principles of State policy can serve as a potent and useful guide for resolving the doubts and upholding the constitutional validity of any legislation, if doubted.

32Copy pinpoint32. In United Provinces v. Atiqa Begum39 Their Lordships F upheld the principle that the question whether any impugned Act is within any of the three lists, or in none at all, is to be answered by considering the Act as a whole and deciding whether in pith and substance the Act is with respect to particular categories or not and held that in doing so the relevant factors are: (i) the design G and the purport of the act, both as disclosed by its language, and (ii) the effect which it would have in its actual operation. … … …

38 (1990) 1 SCC 109 39 H AIR 1941 FC 16 : 1940 FCR 110

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34Copy pinpoint34. The Constitution Bench decision of this Court in Indu A Bhushan Bose v. Rama Sundari Debi40 needs a special mention. A rent control legislation enacted by the State Legislature was sought to be extended to the cantonment area. The High Court held that the same was not permissible inasmuch as so far as the cantonment area is concerned, legislation touching regulation of house accommodation is governed by Entry 3 of List I which reads, inter alia, “the regulation of house accommodation (including the control of rents) in such areas” i.e. cantonment areas. During the course of its judgment, the Constitution Bench held that the entry has to be liberally and widely interpreted. Regulation of houses in private occupation would fall within the entry. The word “regulation” includes power to direct or control all housing accommodation in cantonment areas, which in its turn, will include within it all aspects as to who is to make the construction, under what conditions the constructions can be altered, who is to occupy the accommodation and for how long, on what terms it is to be occupied, when and under what circumstances the occupant is to cease to occupy it, and the manner in which the accommodation is to be utilized. All these are ingredients of regulation of house accommodation in its wide sense. Parliament could legislate in respect of house accommodations in cantonment areas in all its aspects, including regulation of grant of leases, ejectment of lessees and ensuring that the accommodation is available on proper terms as to rents. The power of the State Legislature to legislate in respect of landlord and tenant of buildings is to be found in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and not in Entry 18 of List II, and that power was circumscribed by the exclusive power of Parliament to legislate on the same subject under Entry 3 of List I.

35Copy pinpoint35. Before the Constitution Bench in Indu Bhushan Bose40 the English decisions in Prout v. Hunter41, Property Holding Co. Ltd. v. Clark42 and Curl v. Angelo43 were cited with approval. G In Prout v. Hunter41 the Rent Restrictions Act was held to have 40 (1969) 2 SCC 289 : (1970) 1 SCR 443 41 (1924) 2 KB 736 : 1924 AII ER Rep 53 : 132 LT 193 (CA) 42 (1948) 1 KB 630 : (1948) 1 AII ER 165 (CA) 43 (1948) 2 AII ER 189 (CA) H

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A been passed by Parliament with the two fold object: (i) of preventing the rent from being raised above the pre-war standard, and (ii) of preventing tenants from being turned out of their houses even if the term for which they had originally taken them had expired. In Property Holding Co. Ltd. v. Clark42 the objects of policy underlying rent restriction legislations were stated to be: (i) to protect the tenant from eviction from the house where he is living, except for defined reasons and on defined conditions; and (ii) to protect him from having to pay more than a fair rent. The latter object is achieved by the provisions for standard rent with (a) only permitted increases, (b) the provisions about furniture and attendance, and (c) the provisions about transfers of burdens and liabilities from the landlord to the tenant which would undermine or nullify the standard rent provisions. Such acts operate in rem upon the house and confer on the house itself the quality of ensuring to the tenant a status of irremovability. Tenants’ security of tenure is one of the distinguishing characteristics conferred by the statute upon the house. In Curl v. Angelo43 Lord Greene, M.R., dealing with the Rent Restrictions Act, held that the overriding purpose and intention of such Acts are to protect the person residing in a dwelling house from being turned out of his home. In the opinion of the Constitution Bench these cases are a pointer to the principle that rent control legislations can be effective and purposeful only if they also regulate eviction of tenants. Regulation of house accommodation, therefore, includes within its sweep the power to regulate eviction of tenants. … … …

37Copy pinpoint37. There is yet another angle of looking at the issue. In Lingappa Pochanna Appelwar v. State of Maharashtra20 the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1975 came up for consideration which Act related to transfers and alienation of agricultural lands by members of G Scheduled Tribes in the State to persons not belonging to Scheduled Tribes. The legislation fell in Entry 18 in List II. Certain provisions of the Act trenched upon the existing law, namely, the Transfer of Property Act and the Specific Relief Act, both made by Parliament. It was held that the power of the State Legislature to make a law with respect to transfer and alienation of agricultural land carries H

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with it not only a power to make a law placing restrictions on A transfers and alienations of such lands including a prohibition thereof, but also the power to make a law to reopen such transfers and alienations. The legislative competence was spelt out from Entry 18 in List II of Schedule 7. The Court observed: (SCC p. 493, para 16) B “16. The present legislation is a typical illustration of the concept of distributive justice, as modern jurisprudents know it. Legislators, Judges and administrators are now familiar with the concept of distributive justice. Our Constitution permits and even directs the State to administer what may be termed ‘distributive justice’. The concept of distributive justice in the sphere of law-making connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle: ‘From each according to his capacity, to each according to his needs.’ Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargains should be restored their property. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements.”

38Copy pinpoint38. In Maneklal Chhotalal v. M.G. Makwana 44 the constitutional validity of the Bombay Town Planning Act, 1954 as amended by Gujarat Act 52 of 1963 was put in issue. The legislation fell within Entry 18 of List II. The Court also held after elaborately referring to the various provisions contained in the Act that it was passed with a view to regulate the development of certain areas 44 AIR 1967 SC 1373 : (1967) 3 SCR 65 H

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A with the general object of framing proper schemes for the healthy and orderly development of the area in question and it is with a view to achieve this purpose that a very elaborate procedure and machinery have been prescribed under the Act. For this reason it was held that the competency of the State legislation aimed at equitable distribution of landed property resulting in partial B deprivation of proprietary rights can also be rested under Entry 20 of List III which is “economic and social planning”.

29. The validity of Sections 13 to 16 of the Maharashtra Control of Organised Crime Act, 1999 was struck down by the Bombay High Court as being beyond the legislative competence of the State Legislature. C While upholding the validity, this Court re-stated the principles in State of Maharashtra vs. Bharat Shanti Lal Shah and Others45 as under:- “37. It is a well-established rule of interpretation that the entries in the List being fields of legislation must receive liberal construction inspired by a broad and generous spirit and not in a D narrow pedantic sense. Each general word should extend to all ancillary and subsidiary matters which can fairly and reasonably be comprehended within it.

38. In Navinchandra Mafatlal v. CIT46 this Court observed as under: (AIR p. 61, para 6) E “6. … As pointed out by Gwyer, C.J. in United Provinces v. Atiqa Begum39, FCR at p. 134 none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It is, therefore, clear—and it is acknowledged by Chief Justice Chagla—that in construing an entry in a List conferring legislative powers the widest possible construction according to their ordinary meaning must be put upon the words used therein … The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put

45 (2008) 13 SCC 5 46 H AIR 1955 SC 58

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upon the words so that the same may have effect in their widest amplitude.”

39Copy pinpoint39. Similar were the observations of a five-Judge Bench of this Court in Godfrey Phillips India Ltd. v. State of U.P47, which are as follows: (SCC p. 541, paras 49-50) “49. … Where there is the possibility of legislative overlap, courts have resolved the issue according to settled principles of construction of entries in the Legislative Lists.

50. The first of such settled principles is that legislative entries should be liberally interpreted, that none of the items in the List is to be read in a narrow or restricted sense and that each general word should be held to extend to ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it (United Provinces v. Atiqa Begum39, Western India Theatres Ltd. v. Cantonment Board48, SCR at p. 69 and Elel Hotels & Investments Ltd. v. Union of D India 49).”

40Copy pinpoint40. It is also a cardinal rule of interpretation that there shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the State E Legislature. In Burrakur Coal Co. Ltd. v. Union of India50 this Court held the same in the following manner: (AIR p. 963, para 25) “25. … Where the validity of a law made by a competent legislature is challenged in a court of law that court is bound to F presume in favour of its validity. Further while considering the validity of the law the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained.” G

41Copy pinpoint41. In CST v. Radhakrishan51 this Court while dealing with the question of constitutional validity of a statute held that the 47 (2005) 2 SCC 515 48 AIR 1959 SC 582 : 1959 Supp (2) SCR 63 49 (1989) 3 SCC 698 50 AIR 1961 SC 954 : (1962) 1 SCR 44 H 51 (1979) 2 SCC 249 : 1979 SCC (Tax) 108

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A presumption is always on the constitutionality and the burden is upon the person who attacks it to show that there has been transgression of constitutional principles. It was held in that decision that for sustaining the constitutionality of an Act, a court may take into consideration matters of common knowledge, reports, Preamble, history of the times, object of the legislation and all B other facts which are relevant and that it must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations.

42Copy pinpoint42. In this regard we may also refer to a three-Judge Bench C decision of this Court titled Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.52 In the said decision one of the issues that was raised was “whether the State Legislature is competent to enact legislation in respect of cooperative societies incidentally transacting business of banking, in the light of Entry D 32, List II of the Seventh Schedule of the Constitution”. While deciding the said issue reference was made and reliance was placed on the following passage contained in the earlier decision of this Court in State of Bihar v. Bihar Distillery Ltd.53 about the nature of approach which the court should adopt while examining the constitutional validity of a provision (vide para 85 E of United Yarn case52): (Bihar Distillery Ltd53, SCC p. 466, para 17) “17. … The approach of the court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ignored out as part of the attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality 52 (2007) 6 SCC 236 53 H (1997) 2 SCC 453

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must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application. … The court must recognise the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and the executive are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognises and gives effect to the concept of equality between the three wings of the State and the concept of ‘checks and balances’ inherent in such scheme.”

43Copy pinpoint43. One of the proven methods of examining the legislative competence of an enactment is by the application of doctrine of pith and substance. This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to the field of legislation allotted to the respective legislature under the constitutional scheme. The E said doctrine has come to be established in India and is recognised in various pronouncements of this Court as also of the High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the court has to look to the substance of the State F Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on topics in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the topics in the Union List. G

44Copy pinpoint44. A five-Judge Bench of this Court in A.S. Krishna v. State of Madras54 held as under: (AIR p. 301, para 8)

54 AIR 1957 SC 297 : 1957 SCR 399 H

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A “8. … But then, it must be remembered that we are construing a federal Constitution. It is of the essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces. The scheme of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the Centre and the States could legislate, some overlapping of the fields of legislation is inevitable. The British North America Act, 1867, which established a federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped, and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial Legislatures. It was in this situation that the D Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within it competence, the legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.”

45Copy pinpoint45. Again a five-Judge Bench of this Court while discussing the said doctrine in Kartar Singh v. State of Punjab55 observed as under: (SCC p. 630, para 60) “60. This doctrine of ‘pith and substance’ is applied when the legislative competence of a legislature with regard to a

H 55 (1994) 3 SCC 569 : 1994 SCC (Cri) 899

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particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden.”

46Copy pinpoint46. Though it is true that the State Legislature would not have power to legislate upon any of the matters enumerated in the Union List but as per the doctrine of pith and substance there could not be any dispute with regard to the fact that if it could be shown that the area and subject of the legislation is also covered within the purview of the entry of the State List and the Concurrent D List, in that event incidental encroachment to an entry in the Union List will not make a law invalid and such an incidental encroachment will not make the legislation ultra vires the Constitution.”

30. In Girnar Traders (3) vs State of Maharashtra and Others56, E the Constitution Bench of this Court was called upon to consider, inter alia, the competence of the State Legislature to enact certain provisions of the Maharashtra Regional and Town Planning Act, 1966, stated to be in conflict with Section 11A of the Land Acquisition Act, 1894, a Central Legislation. While rejecting the submission, this Court observed: - F “183. We have already discussed in great detail that the State Act being a code in itself can take within its ambit provisions of the Central Act related to acquisition, while excluding the provisions which offend and frustrate the object of the State Act. It will not be necessary to create, or read into the legislations, an imaginary conflict or repugnancy between the two legislations, particularly, G when they can be enforced in their respective fields without conflict. Even if they are examined from the point of view that repugnancy is implied between Section 11-A of the Land

56 (2011) 3 SCC 1 H

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A Acquisition Act and Sections 126 and 127 of the MRTP Act, then in our considered view, they would fall within the permissible limits of doctrine of “incidental encroachment” without rendering any part of the State law invalid.

184. Once the doctrine of pith and substance is applied to B the facts of the present case, it is more than clear that in substance the State Act is aimed at planned development unlike the Central Act where the object is to acquire land and disburse compensation in accordance with law. Paramount purpose and object of the State Act being planned development and acquisition being incidental thereto, the question of repugnancy does not arise. The C State, in terms of Entry 5 of List II of Schedule VII, is competent to enact such a law. It is a settled canon of law that courts normally would make every effort to save the legislation and resolve the conflict/repugnancy, if any, rather than invalidating the statute. Therefore, it will be the purposive approach to permit both the enactments to operate in their own fields by applying them harmoniously. Thus, in our view, the ground of repugnancy raised by the appellants, in the present appeals, merits rejection.

185. A self-contained code is an exception to the rule of referential legislation. The various legal concepts covering the relevant issues have been discussed by us in detail above. The schemes of the MRTP Act and the Land Acquisition Act do not admit any conflict or repugnancy in their implementation. The slight overlapping would not take the colour of repugnancy. In such cases, the doctrine of pith and substance would squarely be applicable and rigours of Article 254(1) would not be attracted. F Besides that, the reference is limited to specific provisions of the Land Acquisition Act, in the State Act. Unambiguous language of the provisions of the MRTP Act and the legislative intent clearly mandates that it is a case of legislation by incorporation in contradistinction to legislation by reference.

G 186. Only those provisions of the Central Act which precisely apply to acquisition of land, determination and disbursement of compensation in accordance with law, can be read into the State Act. But with the specific exceptions that the provisions of the Central Act relating to default and consequences H thereof, including lapsing of acquisition proceedings, cannot be

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read into the State Act. It is for the reason that neither have they A been specifically incorporated into the State law nor can they be absorbed objectively into that statute. If such provisions (Section 11-A being one of such sections) are read as part of the State enactment, they are bound to produce undesirable results as they would destroy the very essence, object and purpose of the MRTP B Act.

187. Even if fractional overlapping is accepted between the two statutes, then it will be saved by the doctrine of incidental encroachment, and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative competence and, moreover, both the statutes can C eloquently co-exist and operate with compatibility. It will be in consonance with the established canons of law to tilt the balance in favour of the legislation rather than invalidating the same, particularly, when the Central and State law can be enforced symbiotically to achieve the ultimate goal of planned development.” D

31. If the provisions referred to in Section 43 of the Act and allied provisions are considered in light of the settled principles extracted earlier, it emerges that the primary concern of those provisions is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land. The provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation. Even if by the process of construction, the expression “assignment” is construed to include testamentary disposition, in keeping with the settled principles, the incidental encroachment cannot render the said provisions invalid. In pith and substance, the legislation and the concerned provisions are completely within the competence of the State Legislature and by placing the construction upon the expression “assignment” to include testamentary disposition, no transgression will ensue.

32. We, therefore, reject the submissions advanced by Mr. Srivatsa, learned Counsel. H

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A 33. In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must therefore be rejected. We must also observe that the decision of this Court in Mahadeo8 which had failed to notice the earlier decisions in Sangappa4 and Jayamma5 and which is inconsistent with the decisions referred to hereinabove and B what we have concluded, must be held to be incorrectly decided.

34. Accordingly, all these appeals are dismissed without any order as to costs.

C Divya Pandey Appeals dismissed.