Punjab-Haryana High Court
Moti Ram S/O Atma Ram And Ors. vs Bakhwant Singh And Ors. on 29 September, 1967
Equivalent citations: AIR1968P&H141
ORDER D. Falshaw, C.J.
1. The facts in this appeal under Clause 10 of the Letters Patent are that 121/2 bighas of land were sold by three joint owners, Ind Kaur, the widow, and Balkar Singh and Nichhatar Singh two sons of Tarlok Singh. The sale was preempted by the present respondents Bakhwant Singh and Mohinder Singh, minor sons of another wife of Tarlok Singh named Karam Kaur.
2. The trial Court held that the plaintiffs had a right of pre-emption under Section 15 (1)(c), secondly, of the Punjab Preemption Act as amended in 1960 in respect of the two-thirds shares of the land sold by their half-brothers and that the price paid was Rs. 3,200.00 and not Rupees 5,000.00 as showed in the sale deed, but a decree was nevertheless passed for possession of the two-thirds of the land on payment of Rs. 3,200.00.
3. The plaintiffs appealed regarding the dismissal of the suit relating to one-third share of Ind Kaur and cross-objections were filed by the vendees in which inter alia they disputed the plaintiffs right of pre-emption. The defendants' cross-objections were accepted by the learned District Judge who dismissed the suit on the finding that the plaintiffs had no right of pre-emption. This was based on the finding that it was not proved that their mother Karam Kaur was legally wedded to Tarlok Singh. When the plaintiffs appeal came before the learned Single Judge he found it necessary to obtain a report from the trial Court on the question whether the plaintiffs were the legitimate sons of Tarlok Singh, which had never been placed in issue at the trial. The correctness of the report of the lower Court to the effect that Tarlok Singh had married Karam Kaur as his second wife and that the plaintiffs were his sons born in wedlock is not now disputed. The learned Single Judge further found that while he could not go into the finding of the lower Court to the effect that the payment of Rs. 1,800,00 a few days before the registration of the sale deed was not proved, there was a finding that the market value of the land was Rs. 400.00 per bigha and that therefore the ostensible price of Rs. 5,000.00 represented the market value of the land. He also found that the plaintiffs were entitled to pre-empt the sale of the whole of the land including the share of Ind Kaur, this being on the basis of the decision of Gurdev Singh J. in Nathi Singh v. Lakhmi Chand. R.S.A. No. 1616 of 1960, D/-20-3-1962 (Punj). This decision has subsequently been upheld by Dulat and R.P. Khosla JJ. in L.P.A. No. 270 of 1962 D/-21-5-1965 (Punj). He accordingly granted the plaintiffs a decree for the whole of the land in suit on payment of Rs. 5,000.00 and the present appeal is by the vendees.
4. On behalf of the appellants it has been contended that the plaintiffs had no right of pre-emption at all, or alternatively, that even if they had a right to pre-empt the shares of their half-brothers, they could not in circumstances pre-empt the sale so far as it concerned the share of Ind Kaur. By the amendment introduced in 1960 section 15 of the old Act was remodelled and apart from the fact that a right of pre-emption based on consanguinity was generally cut down to the closest relations, sales by sole owners were separated from sales by all the joint owners of joint property and a new Sub-section (2) was introduced to deal with sales b\ females or their children, an amendment on these lines being necessary consequence of the enactment of the Hindu Succession Act of 1956 by which so-called widows' estates were converted into full ownership.
5. The present sale is by all the joint owners and the plaintiffs' right of pre-emption was based on 'secondly' in Sub-section (1) (c) "brothers or brother's sons of the vendors" It was contended that the plaintiffs are not brothers, but only half-brothers of two of the vendors. On the point T have no hesitation in holding, even in the absence of any authority, that in this context where a landowner has sons by more than one wife all the sons are brothers for the purpose of 'secondly' and therefore the plaintiffs could certainly pre-empt the sale so far as it concerned the two-thirds share? of their half brothers.
6. The more difficult part of the case arises in connection with the one-third share of Ind Kaur In Nathi Singh's case, R. S. A. No. 1616 of 1960 D/- 20-3-1962 (Punj) which was relied on by the learned Single Judge the facts were' that the impugned sale was made by a man named Sohan Lal and his two nephews Khillu and Faquiria who were the sons of Sohan Lal's deceased brother Dalip Chand The pre-emptors in the suit were a son of Khillu and a son of Faqiria and it would not appear according to the provisions of section 15 (1) (c) secondly the plaintiffs had any right of pre-emption in respect of the share of the land owned by Sohan Lal who was the brother of their grand-father The amending Act of 1960 had come into force during the pendency of the first appeal in that case and the appellate Court modified the decree of the trial Court which was under the unamended section and decreed the suit only in relation to 5/8ths of the land which was the share of the fathers of the plaintiffs on payment of 5/8ths of the sale price However, Gurdev Singh J. relied on the provisions of section 13 of the Act which reads:
"Whenever according, to the provisions of this Act a right of pre-emption vests in any class or group of persons the right may be exercised by all the members of such class or group jointly, and. if not exercised by them all jointly by any two or more of them jointly, and. if not exercised by any two or more of them jointly, by them severally."
The learned Judge before whom it does not seem any of the older decisions were cited thought that this was a sufficient ground for holding that the plaintiffs in that case were entitled to pre-empt the whole sale. It would seem from the judgment in the Letters Patent Appeal against his decision that it was affirmed without any real discussion of his reasons.
7. It seems surprising that no one thought of referring to the earlier decisions in view of the fact that, as would appear from page 122 onwards of the 1960 Edition of Ellis's 'Law of Pre-emption in the Punjab', although there was some divergence of views regarding whether a pre-emptor need bring a suit regarding the whole property sold where he only enjoys a superior right of pre-emption in respect of part of it, there was no divergence at all about the view that he could only pre-empt the sale regarding that property in respect of which he enjoyed a right of pre-emption superior to that of the vendees.
8. It seems to me that Section 13 is not intended to confer any right of preemption and that all that it means is that one out of a group of persons on whom a right of pre-emption is conferred can exercise that right alone when others are not inclined to do so, but he can only do so in respect of the whole of the land sold by joint owners if he enjoys a right of preemption in respect of each of the vendors, and the decision in Nathi Singh's case, RSA No. 1816 of 1960 D/- 20-3-1962 (Punj) appears to me to require reconsideration.
9. A difficult point also arises on the alternative case on the point whether the plaintiffs otherwise enjoyed a right of preemption in respect of the share of Ind Kaur under the provisions of Sub-section (2) of Section 15. It would seem in the present case that Ind Kaur's share of the land came to her from her husband and Sub-section (2) (b), as amended in 1960, read "where the sale is by a female of land or property to which she had succeeded through her husband or through her son in case the son has inherited the land or property sold from his father, the right of preemption shall vest--First, in the son or daughter of such female;
By Act XIII of 1964 this was amended so that now it reads "First, in the son or daughter of the husband of such female "
If the first clause is construed literally as it stood after the amendement in 1960 the plaintiffs, being only the step-sons of Ind Kaur would not enjoy a right of pre-emption regarding the land sold by her in spite of the fact that it would appear that the intention of the Legislature was that the sons in a case of this kind were entitled to derive their right of pre-emption from the fact that the land had belonged to their father The question thus arises whether the amendment of 1964 was a mere clarification of the original intention and also whether, if it was not, the existing decree could still be maintained in this appeal in favour of the plaintiffs on the basis of the amendment. I accordingly order that the case be referred to a Full Bench.
H.R. Khanna, J.
10. I agree.
JUDGMENT OF THE FULL BENCH.
Shamsher Bahadur, J.
11. Being of the view that some questions calling for decision in this Letters Patent appeal from the judgment of Mahajan J. involve points of difficulty, the Bench of Chief Justice Falshaw and Khanna J. has referrfd it to a Full Bench for disposal.
12-16. (After stating the facts and the questions raised before the Judges in the Letters Patent appeal his Lordships proceeded as under:)
17. Before us, the question on which Chief Justice Falshaw in the referring order of the Bench felt no difficulty has also been vigorously canvassed and in order to appreciate this point, as also the questions on which the Bench found itself confronted with difficulty, it is necessary to set out the relevant provisions of the Punjab Pre-emption Act, 1913, as amended by the Acts of 1960 and 1964.
18. Section 15 of the Punjab Pre-emption Act, 1913 (Punjab Act I of 1913) deals with the right of pre-emption in respect of agricultural land and village immovable property, and in cases where the sale is of share put of joint land or property the right vests in the lineal descendants of the vendor in the order of succession in the first place, and thereafter in the co-sharers who are agnates and lastly in the co-sharers. This right has been severely curtailed by the amendments introduced by Punjab Act No. 10 of 1960 (hereinafter called the Act), and the amended section reads as under:
"15. (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-
(a) where the sale is by a sole owner, -first, in the son or daughter or son's son or daughter's son of the vendor; Secondly, in the brother or brother's son of the vendor; Thirdly, in the father's brother or father's brother's son of the vendor; Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof;
(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly.--First in the sons or daughters or sons' sons or daughters' sons of the vendor or vendors;
Secondly, in the brothers or brother's sons of the vendor or vendors; Thirdly, in the father's brothers or father's brother's sons of the vendor or vendors; Fourthly, in the other co-sharers; Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;
(c) where the sale is of land or property owned jointly and is made by all the cosharers jointly,--
First, in the sons or daughters or sons' sons or daughters' sons of the vendors;
Secondly, in the brothers or brother's sons of the vendors; Thirdly, in the father's or father's brother's sons of the venders;
Fourthly, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.
(2) Notwithstanding anything contained in Sub-section (1)-
(a) Where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall rest,--
(i) if the sale is by such female, in her brother or brother's son;
(ii) if the sale is by the son or daughter of such female, in the mother's brothers or the mother's brother's sons of the vendor or vendors;
(b) Where the sale is by a female of land or property to which she had succeeded through her husband, or through her on in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest,--First, in the son or daughter of such female;
Secondly, in the husband's brother or husband's brother's son of such female."
By the Punjab Pre-emption Act, 1964 (Act 13 of 1964) paragraph 'FIRST' in Clause (b) of Sub-section (2) of section 15 now reads as under:
"First, in the son or daughter of such husband of the female."
19. The salient feature to be observed is that while in the principal Act the preemptive right is given to lineal descendants and agnates, the Act has restricted this right to the closest relations. The pre-emptive right to tenants is a new feature of the Act and in the case of sale of joint holdings co-sharers also enjoy the right when sale is of a share out of joint land or property and is not made by all the co-sharers jointly. We are, however, concerned in the present case with the sale of land under Clause (c) of Sub-section (1) of section 15 of the Act, the sale having been made by the joint owners Ind Kaur, Balkar Singh and Nachhatar Singh. The plaintiffs claim the preemptive right by virtue of Sub-clause (secondly) of Clause (c) of Sub-section (1) under which such a right vests in the brothers or brother's sons of the vendors. Chief Justice Falshaw, in the passage which has already been cited, considered that even in the absence of any authority, a brother includes half-brother, and the matter so far as the referring Bench is concerned ended there. Before us. it has been very strenuously urged by Mr. Dalip Chand Gupta, the learned counsel for the vendees appellants, that the proportion enunciated by the learned Chief Justice is not accurate and goes against the tenor and purpose of Sub-clause (secondly) of Clause (c) of Sub-section (1) of section 15 of the Act. It is first submitted by Mr. Gupta as a general proposition that no equities exist in favour of a pre-emptor whose sole object is to disturb a valid transaction by virtue of the rights created in him by a statute. He has relied on Radhakishan v. Shridhar, AIR 1960 SC 1368. in which Mr. Justice Kapur. for the Court, spoke thus at p. 1372' "To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of preemption by all lawful means, ... The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help the pre-emptor."
20. All that can be spelled out from this authority is that the pre-emptive right embodied in statute has to be construed strictly and no Court is entitled to travel beyond its ambit. The ruling of this decision does not require, in our opinion, that the language of the statute itself is to be strained in every way to give a construction which is favourable to the vendet and adverse to the pre-emptor when it said that the Court has not to go out of its way to help the pre-emptor, nor do we understand it to be the meaning of the Supreme Court authority that the statutory right of preemption given either expressly or by necessary intendment should be curbed or moderated, the right of pre-emption itself being a "weak" one.
21. Mr. Gupta on basis of another decision of the Supreme Court in Gulraj Singh y. Mota Singh, AIR 1965 S.C. 608, where it was said that "son or daughter" under section 15 (2) (b) of the Act means "only legitimate son or legitimate daughter of the female vendor and will not include illegitimate son or daughter" submits that on a parity of reasoning a step or half brother will not be included in the term "brother" in Sub-clause (secondly) of Clause (c) of Subsection (1). I think the status of an illegitimate son or daughter cannot be equated with that of a step-brother or step-sister. It has to be borne in mind that the primary purpose of the restricted right of pre-emption is to retain the property amongst the closest relatives of the vendor and it cannot acceptedly be urged that this purpose would be promoted or served by excluding step brothers or step-sisters like the illegitimate issues. It has been very forcibly pressed upon us that the Act has in contemplation a drastic curtailment of the list of prospective pre-emptors and the purpose of the Legislature was to eschew inclusion of half brother as a "brother," which term in its strict and generic sense should in the counsel's view be confined to mean a brother of the full blood. We may state at once that the extended meaning of the word "brother" is not calculated to frustrate any such objective, especially when the pre-emptive right is given under sub-clause (thirdly) of Clause (c) of Sub-section (1) of section 15 to a person like father's brother's son of the Tendor who is remoter in relationship than step-brother.
22. "Brother" in Bouvier's Law Dictionary (1914 edition) Volume I, is defined to be a person "who is born from the same father and mother with another, or from one of them only. Brothers are of the whole blood when they are born of the same father and mother, and of the half-blood when they are the issue of one of them only, when they are the children of the same father and mother, they are called brothers germain; when they descend from the same father but not the same mother, they are consanguine brothers; when they are the issue of the same mother, but not the same father, they are uterine brothers. A half-brother is one who is born of the same father or mother, but not of both. . . "
In Corpus Juris Secundum (1938) (edition) Volume XII. "brother" has been defined as "a male person who has the same father and mother with another person, or who has one of them; he who is born from the lame father and mother with another, or from one of them only."
What is of importance to note is that In Corpus Juris Secundum, it has been stated that the term, when used without any qualifying words, may include a brother of the half-blood. In Stroud's Judicial Dictionary (Third edition) Volume I, it is stated that "brother shall include a brother of the half blood" under the Marriage Act. 1949. According to Stroud, a gift to brothers and sisters includes the half-blood and so with regard to every other degree of relationship. In Halsbury's Laws of England (Third edition) Volume 19, at page 782, the relevant provisions of the Marriage Act, 1949. are cited to show that a man may not marry, inter alia, his sister and a woman may not marry her brother, and both the expressions 'brother' and 'sister' include a brother and sister of the half-blood. "Brother", according to the Shorter Oxford English Dictionary (1961 edition) Volume I, is "male being related to others (male or female) as the child of the same parents or parent. In the latter case, he is more properly called a half-brother, or brother of the half blood."
23. Section 27 of the Indian Succession Act says that-
"For the purpose of succession, there is BO distinction-
(a) between those who are related to a person deceased through his father, and those who are related to him through his mother; or
(b) between those who are related to a person deceased by the full blood, and those who are related to him by the half blood; or
(c) ...... ".
The only distinction in the matter of inheritance, according to Mulla's Hindu Law (13th edition) page 111, is that brothers of the whole blood succeed before those of the half-blood.
24. In the statute law of pre-emption there is no distinction made between a brother and a half-brother, but Mr. Gupta has contended that the Act having brought a drastic reduction in the number of persons eligible to pre-empt, it must be inferred that half-brothers are to be excluded from exercising the right. Whenever a distinction is sought to be made between a brother and a half-brother, it is so specified, otherwise the "brother" includes "half-brother" who may be either consanguine or uterine. The Legislature has been fully alive to brothers of full blood, half-blood and uterine. In fact, these terms are separately defined in Clause (e) of Sub-section (1) of section 3 of the Hindu Succession Act. As in the law of succession, the conferment of the right to purchase under the Pre-emption Act is based on the degree of relationship of the vendor with the person to whom the right is accorded, consanguinity being the test. If the right of pre-emption was intended to be confined to full brothers alone, the restriction would have been specifically noted and, as we observed before, when the father's brother's son has been given the right, there is no conceivable reason why a step-brother, who is nearer in consanguinity, should have been excluded. Such a right cannot be denied on the mere ground 'hat the right of pre-emption b piratical or that it disturbs the sanctity of contract and erodes the right of freedom to contract. The pre-emptive right has been recognised and a particular relative who is otherwise eligible to pre-empt cannot be excluded from this benefit simply for the reason that a brother of full blood has a better right in the matter of succession than a brother of the half-blood. The correct perspective to the problem, in our view, is that a step-brother is a brother not having been excluded by the Legislature from exercising his right of pre-emption.
25. Mr. Gupta has brought to our notice a recent Division Bench judgment of Mahajan and Narula JJ. in Surjan Singh v Harcharan Singh, 1967 Cur. L.J. (Pb. and Haryana) 275 : (AIR 1968 Punj 137) where it has been held that the word "brother" in section I5(1)(a) secondly denotes a "real brother" and not a "step-brother" or a "uterine brother". The Bench was considering the case of a sale by a sole owner and undoubtedly the construction placed on the word "brother" in sub-clause (secondly) would apply mutatis mutandis to Sub-clause (secondly) of Clause (e) of Sub-section (1) of Section 15, with which we are concerned in the present case. Mahajan J., with whom Narula J. concurred. considered that the expression "brother" in the context of section 15 denotes a real brother, and not a step-brother or a uterine brother, the reason being that the law of pre-emption is a piratical law and has to be strictly construed. In the view of the learned Judge, "if two interpretations are possible the one, which restricts its operation, is to be preferred rather than the interpretation which widens its operation."
Mahajan J. further relied on the later part of the definition in Bouvier's Law Dictionary, to which I have already adverted, Mahajan J. was moreover influenced by the consideration that "the expression 'brother' normally to an Indian mind, indicates a real brother, though the word has been used even for the relationship whether it is of a step or a uterine brother."
The learned Judge in the judgment observed that the conclusion was based on "first impression" as it involved a question which was bare of authority.
26. With great respect to the learned Judges, we are unable to agree with the reasons which impelled the Bench to reach the conclusion in favour of excluding the half brother from the benefit of the right of pre-emption. "Brother" includes 'half-brother' in all systems of jurisprudence that we know of and a contrary intention has expressly to be provided for. We do not see how the mere exclusion of a step-brother will further the accepted objects and restrictions on the law of pre-emption which has been described as a piratical right. Where the statute has given protection to a brother and indeed to more distant relations than a half-brother, we cannot be persuaded to think that a step-brother was the object of exclusion. Indeed, we are inclined to the view that if such was the object it should have been specifically provided for. Nor do we see our way to accede to the argument that two interpretations being there, the one in favour of restricting the right of preemption should be preferred to the one which tends to widen it. "Brother" as a category has been given the right to preempt and we do not see how two interpretations are possible and consequently the question of preference of one over the other does not arise.
27. It remains to mention that in Surjan Singh's case, 1967 Cur LJ (Punj & Haryana) 275= (AIR 1968 Punt 137) Mahajan J., speaking for the Court, had made reference to two decisions, one of AIR 1965 SC 608 of the Supreme Court, of which mention has already been made and the other of Ujagar Singh v. Rattan Singh, 1965-67 Pun LR 258, in which the learned Judge himself sitting singly held that a pichhlag son had no right to pre-empt the sale of land effected by his mother where the land was inherited by her from her husband who was not the father of the pre-emptpr. I think the case of a pichhlag son is quite distinguishable from a son of the same father, he having no claim on ground of consanguinity.
28. The next point taken by Mr. Gupta, is that even if the sale is pre-emptible at the instance of the step-brothers, the share of Ind Kaur at least was not pre-emptible. Reliance is placed on section 13 of the Punjab Pre-emption Act. 1913. according to which:
"Whenever according to the provisions of this Act a right of pre-emption vests in any class or group of persons the right may be exercised by all the members of suck class or group jointly, and, if not exercised by them all jointly by any two or more of them jointly, and, if not exercised by any two or more of them jointly, by them severally."
29. There can be no manner of doubt that a pre-emptor, in order to succeed, has to establish his relationship with the vendor and in case of a joint sale with each of the vendor. The question is whether a pre-emptor can claim the entire property sold on basis of relationship when it is found that he is not related to one or more of the vendors? In R.S.A. No. 1616 of 1960, D/- 20-3-1962 (Punj), Gurdev Singh J. was of the view that as the object of pre-emption was the sale, the entire transaction could be preempted even if the relationship with some of the vendors was not established. Sohan Lal and his nephews (brother's sons) Khillu and Faqiria in the case in point had sold their joint holding of agricultural land to Nathi Singh and others. Kiranpal son of Khillu and Lakhmi Chand son of Faqiria brought a suit for pre-emption claiming a right of pre-emption on gound of relationship with the vendors. The case was decided in favour of the plaintiffs under Clause (c) of Sub-section (1) of section 15 of the Act by the lower appellate Court but as Kiranpal and Lakhmi Chand were held entitled only to pre-empt the shares of their respective fathers, a decree was passed with respect to 5/8th share the remaining 3/8th share being that of Sohan Lal whose share the pre-emptors could not claim by relationship. Gurdev Singh J. allowed the appeal of the pre-emptors and decreed the suit for the entire property including Sohan Lal's share on the ground that each of the plaintiffs was entitled to pre-empt the entire sale. This decree was affirmed in Jangli v. Lakhmi Chand, 1965-67 Pun LR 919, by Dulat and R.P. Khosla JJ. It is the ruling of this decision whose correctness has been doubted by the referring Bench as certain earlier decisions reported in Ellis's treatise on the Law of Pre-emption have not been taken account of.
30. The proposition that the right of pre-emption is generally limited to the extent of the pre-emptor's right is not open to challenge. What flows from this doctrine is that a pre-emptor is not bound to claim the whole when his right of pre-emption extends only to a part. There is a decision of the Full Bench of the Punjab Chief Court, Sanwal Das v. Gur Parshad, (1909) 90 Pun Re 1909, where the Bench of six Judges held that when two houses which adjoin each other are sold jointly, the right of pre-emption of the owner of a house which adjoins only one of the two houses sold extends to that one house only and not to both the houses sold. The owner of the adjoining house can sue for pre-emption only in respect of the house to which his right extends. In another Division Bench case of Uttam Chand v. Lahori Mal, (1907) 112 Pun Re 1907, it was held that "a bargain of distinct properties by a person having preferential rights only to a portion of such bargain does not give him a right of pre-emption as regards the simultaneously purchased other portion." It is of course true that the pre-emptor has to take the bargain in its entirety and not in parts. From the doctrine that a pre-emptor is not bound to claim the whole of the bargain when his right of pre-emption extends only to a portion of the property sold flows another proposition that a pre-emptor is not entitled to claim more than what his right extends to. In Ram Rakha Mal v. Devi Das, (1905) 89 Pun Re 1905, decided by Chatterji and Johnstone JJ., it was held that "where a bargain consisted of several distinct properties and the pre-emptor's preferential right of purchase extended only to a portion of such bargain, the pre-emptor was not entitled to take the whole bargain but only that portion over which he had superior right."
In Dulla v. Harikishan Das, 6 Pun Re 1915= (AIR 1914 Lah 494) which is a judgment of Johnstone and Shadi Lal JJ., it was held that "where a sale, in respect of which a suit of pre-emption has been brought is by two vendors and indivisible from certain points of view inasmuch as it does not state the amount of purchase money paid to each vendor, the vendee is notwithstanding entitled to retain that part of the property sold in respect of which his rights are equal to that of the pre-emptor."
The Division Bench relied on a number of rulings and the ratio decidendi of 6 Pun Re 1915 = (AIR 1914 Lah 494) has not been dissented at any time. This principle has also been recognised by the Lahore High Court in the Full Bench decision of Ghulam Qadir v. Ditta, 1945-47 Pun LR 224 = (AIR 1945 Lah 184) (FB) where it is said that "a pre-emptor must always claim the maximum to which he is entitled or has a superior title and his failure to do so would result in a dismissal of his claim on the ground that he was suing for partial pre-emption."
The only discordant note was struck in an old ruling of the Chief Court reported in Wariam v. Dean. (1868) 64 Pun Re 1886, but this had been dissented from in the subsequent rating to which reference has been made. The language of Section 13 of the Punjab Pre-emption Act, 1913, has always been the same and it seems that the Bench of Dulat and R.P. Khosla JJ. in 1965-67 Pun LR 919, which took the view that the sale by joint owners was pre-emptible in its entirety even if the plaintiff-pre-emptor established relationship with some of the co-vendors, did not take into account the earlier decisions. Section 13 of the Punjab Pre-emption Act, 1913, has always been construed to mean that a pre-emptor is entitled to pre-empt in case of joint sale the share of the vendor or vendors through whom he claims his right. It seems to us that the decision in Jangli's case, 1965-67 Pun LR 919 being in conflict with settled principles is not correctly decided. It may be mentioned in passing that in the view which we have taken on the other aspects of the case, it is really not necessary to go into the question about the correctness of the decision in Jangli's case, 1965-67 Pun LR 919 but as in the view of the referring Bench, the case requires reconsideration, we feel bound to pronounce our views on this aspect as well.
31. The third submission raised in this appeal is whether the share of Ind Kaur can be pre-empted by the plaintiffs under paragraph (First) of Clause (b) of Sub-section (2) of section 15 of the Act. Admittedly, the sale made by Ind Kaur would be governed by Sub-section (2) which is concerned with the sales made by female of land or property to which she has succeeded either through her father or brother. It is common ground that the sale of Ind Kaur's share was in respect of property to which she had succeeded through her husband and consequently the case is governed by Clause (b) of this subsection. In such a situation the right of preemption vests in the son or daughter of such female. It is submitted on behalf of the respondents that the son or daughter claiming the right to pre-empt need not be born from the womb of the female vendor, as such a claimant though not her own issue would still be entitled to claim pre-emption in respect of property which has devolved on the vendor from "such husband" on ground of consanguinity. Support for this contention is sought from paragraph (Secondly) which vests the right in the husband's brother or husband's brother's son of the female. It is argued that if the husband's brother or the husband's brother's son of Ind Kaur had a right it is scarcely conceivable that the Legislature would have deprived the son of her husband from a different wife from claiming the right of preemption. In this context, it is pointed out that the amendment introduced by Punjab Act 13 of 1964 by adding the words "husband of the" between "such" and "female" merely clarified what had been clearly the intention though not so expressed in the Act.
32. On behalf of the appellants it is pointed out by Mr. Gupta that the well settled principle of pre-emption as recently reiterated by their Lordships of the Supreme Court in Sundar Singh v. Narain Singh, AIR 1966 SC 1977, is that "the pre-emptor must have a right of pre-emption at the date of the sale, at the date of the suit and finally at the date of the decree". It is conceded by him that on the date of sale, which took place on 23rd of December, 1959, the pre-emptors had a right of pre-emption regarding Ind Kaur's share because under the unamended law the plaintiffs were in the line of succession to the estate of Tarlok Singh. ft is, however, submitted by him that on 16th of December, 1960, when the suit was filed, the amended Act had come into force, having been published in the Official Gazette on 4th of February, 1960. Under the amendment, according to the submission of the learned counsel, the right of pre-emption does not repose in the pre-emptors. they not being the sons of Ind Kaur under paragraph (First) of Clause (b) of Sub-section (2) of section 15. Likewise, when the decree of the trial Court was passed on 31st of January, 1962, the plaintiffs suffered from the same disability. A judgment of Pandit J. in Chanan Singh v. Jai Kaur, R.S.A. No. 345 of 1960, D/- 26-10-1960 (Punj), has been relied upon for the proposition that the son, contemplated in paragraph (First) must be born of that female. Pandit J., in this judgment, was dealing with the case of a daughter and in the view held by him, "there is no escape from the conclusion that the pre-emptor must have been born from her womb, and it is only then that she can be called her daughter." Mutatis mutandis the same argument would apply in the case of sons which the plaintiffs claim to be. Though the principle of this decision was affirmed by the Letters Patent Bench of Dulat and R.P. Khosla JJ. in L.P.A. No. 91 of 1961, D/- 10-5-1965 (Punj), the appeal was allowed on account of the amendment introduced by Punjab Act 13 of 1964. the Bench having found that the plaintiff Jai Kaur answered to the description of persons in the amended clause which vested the right" in the son or daughter of such husband of the female". In the submission of Mr. Sachdeva, the amending Act has to be given retrospective operation and it should be deemed to be on the statute book when the Act came into force on 4th of February, 1960. Reliance is placed on the following principle of retrospective operation enunciated in Maxwell on Interpretation of Statutes (Eleventh edition) at page 204:--
"ft is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication."
It is submitted that though there is no express provision about the retrospective operation of Punjab Act 13 of 1964, it has to be so construed by necessary and distinct implication. It is submitted that Punjab Act 13 of 1964 is a remedial or a curative Act as is apparent from its objects and reasons, to which I would shortly advert. A curative Act is a statute passed to cure defects in a prior law and it is submitted that as the words "in the son or daughter of such female" were capable of some uncertainty the words "husband of the" were inserted between the words "such" and "female". There is undoubtedly force and cogency in this argument. A remedial or a curative Act, according to the counsel, has retroactive or retrospective operation and he has relied on the following statement of law contained in Sutherland on Statutory Construction (3rd edition) Volume 2 at page 243:--
"The presumption, however, is that all laws operate prospectively only and only when the legislature has clearly indicated its intention that the law operate retroactively will the courts so apply it. Retroactive operation will more readily be ascribed to legislation that is curative or legalizing than to legislation which may disadvantageously though legally. affect past relations and transactions."
Earlier, at page 135 of the same treatise, it is stated:--
"Where the statute affects inchoate rights or is remedial in nature, it will be construed retroactively if the legislative intent clearly indicates that retroactive operation is intended."
33. A close analysis of paragraphs (First) and (Secondly) of Clause (b) of subsection (2) of section 15 before the amendment introduced by Punjab Act No. 13 of 1964 would demonstrate that a son of the husband of a female vendor though not born from her womb would be entitled to pre-empt, particularly when the husband's brother and even the son of the husband's brother of that female are accorded the right of pre-emption. To reiterate, the right of pre-emption is accorded manifestly on the principle of consanguity. the property of the female vendor being that .of her husband, and there is no reason why the step-son should be excluded and the nephew of the husband included. From this alone it must be inferred that the Legislature had intended to include a step-son and consequently retrospective operation had to be given to the amending Act as such a construction appears to be in consonance and harmony with the purpose and purport of the Act. It is mentioned in the Statement of Objects and Reasons added to the Bill which eventually became Punjab Act 13 of 1964 that :--
"It appears that the intention of the Legislature in enacting section 15(2) of the Punjab Pre-emption (Amendment) Act, 1960 (Punjab Act No. 10 of 1960) was to vest the right of pre-emption in the off-springs of the husband in regard to the property to which a female had succeeded through such husband. But this intention is not clear from the words used in Clause (b) of section 15(2) . . . Another flaw in the provision is that the offsprings of the same husband through another wife are excluded by the wording used in existing provisions which seems to have resulted inadvertently."
Making due allowance for the language used in the Bill which was "a private member's Bill", it seems clear that the main object of passing the amending Act was to clearly what had always been intended before. It is true that the Statement of Objects and Reasons is not a permissible aid in construing the true meaning and effect of the substantive provisions of the statute as observed by Chief Justice Sinha in State of West Bengal v. Union of India, AIR 1963 SC 1241, but such a statement; as observed by Mr. Justice Shah in another Supreme Court decision in Gujarat University v. Shri Krishna, AIR 1963 SC 703, "may and dp often furnish valuable historical material in ascertaining the reasons which induced the Legislature to enact a statute." In other words, the Statement of Objects and Reasons though it cannot be used as a guide for interpretation of a statute can yet enable us to determine the raison d'etre of legislation. Viewed in this light, it appears to us that the Statement of Objects and Reasons at least makes this clear that a lacuna had existed in paragraph (First) of Clause (b) of Sub-section (2) of section 15 and the amending Act was intended to cure or remedy that defect. The theory that a son or daughter must be born from the womb of the female vendor is unsustainable as a 'pichhlag' issue though born from her womb is not an eligible pre-emptor as held by Mahafan J. in 1965-67 Pun LR 258, and the same principle has been impliedly accepted even by Pandit J. in R.S.A. No. 345 of 1960. D/- 26-10-1960 (Punj). The possibility of such a misapprehension is stated in the Objects and Reasons to be the principal aim of the Bill which culminated in Punjab Amending Act 13 of 1964.
34. Piecing together our conclusions, wt hold that the term "brother" includes step or half brother in the context of the law of pre-emption and that 1967 Cur LJ (Punjab & Haryana) 275 = (AIR 1968 Punj. 137) has not been correctly decided. We are further of the view that Ind Kaur's share was pre-emptible under First paragraph of Clause (b) of Sub-section (2) of section 15 of the Act and the amendment introduced by Punjab Act 13 of 1964 has made clear what may have been somewhat uncertain or ambiguous before and in the circumstances of the case the amendment has to be given retrospective effect. Lastly decision of 1965-67 PUN LR 919. does not seem to be correctly decided.
35. In view of these conclusions, this appeal must be dismissed. As mentioned earlier while Khasra Nos. 871 and 877 were sold the suit was brought by inadvertence for Khasra Nos. 871 and 872. The trial Judge had decreed the suit only with regard to Khasra No. 871, as in his opinion no valid suit in respect of Khasra No. 877 had been brought. The lower appellate Court held that it would have allowed the amendment but as the suit was being dismissed on other grounds no formal order was passed on the application for amendment which was actually made before it on 10th of February 1962. No ground was ever taken by the vendees against this amendment which was virtually allowed by the lower appellate Court In the circumstances, we make a formal order allowing the plaintiffs the amendment which had actually been sought in the application submitted to the lower appellate Court. There is, and indeed there can be no objection to this course and in fact neither any mention is made of it in the grounds of appeal nor in the argument addressed by Mr. Dalip Chand Gupta at the bar.
36. In the result, this appeal is dismissed and the suit of the pre-emptors is decreed in its entirety. In the circumstances, there would be no order as to costs.
P.C. Pandit, J.
37. Towards the close of the referring order, Falshaw, C. J., with whom Khanna, J. agreed, observed as under :--
[After quoting paragraph 9 of the Order of Reference His Lordship continues as under:--]
38. The question whether the plaintiffs in the instant case had a right to pre-empt the sale made by their step-mother, Ind Kaur, of the property to which she had succeeded through her husband. Tarlok Singh, was argued at considerable length before us. Its answer would depend on whether a 'step-son' was included in the word 'son' occurring in section 15(2)(b) First of the Punjab Pre-emption Act. 1913 as it stood before the amendment of this clause by Punjab Act No. XIII of 1964. Initially. I must confess, I felt some difficulty in agreeing with the submission of the learned counsel for the plaintiffs, because, according to the statute as it stood then, the right of preemption was given to the 'son or daughter of such female', and the language employed was legitimately capable of the construction that it would only be the son from the body of such Female vendor, who would have a right of pre-emption. The subsequent amendment in this clause by Punjab Act XIII of 1964 has. however, made it clear what the intention of the legislature was and now I am of the view that a step-son was also included in 'son' even in the un-amended clause. My reasons for coming to this decision are these -
(1) It is common ground that the word 'son' has not been defined in the Act and therefore, we have to go by its ordinary dictionary meaning. The Shorter Oxford Dictionary defines 'son' as 'a male child or person in relation to either or both of his parents'. Similarly in the Webster dictionary, the definition of this word is given as 'a male child in relation to his parent or parents'. Thus, it would be seen that according to its ordinary meaning, 'son' includes a 'step-son' also.
"(2) If the legislature wanted that a 'step-son' should not be included in a 'son' in this clause, it could have said so in the Act and could have specifically placed that limitation on its meaning. But that has, admittedly, not been done.
(3) The legislature was supposed to know the distinction between a 'son' and a 'step-son'. Knowing that, if it did not exclude a step-son, its intention seems to be clear that it wanted that in such circumstances, the step-son should also be able to pre-empt the sale made by his step-mother. Where the legislature wanted to exclude a step-son, it has actually said so in the statute itself. For instance, in the Hindu Succession Act, in section 18, it has been made clear that heirs related by half blood shall be preferred to heirs related by full blood, if the nature of the relationship is the same in every other respect.
(4) Section 15(2)(b) First was, for the first time, introduced in the Punjab Pre-emption Act, 1913 by Punjab Act X of 1960 Before that, the right of pre-emption in respect of agricultural land and village immovable property, where the sale was made by a sole owner, or in the case of land or property jointly owned, by all the co-sharers jointly, vested in the persons in the order of succession who, but for such sale, would have been entitled, on the death of the vendor or vendors, to inherit the land or property sold. In other words, if the sale had been made by Mst. Ind Kaur before the Act was amended by Punjab Act X of 1960. the plaintiffs could pre-empt the sale, because they were also heirs of their step-mother. The legislature was aware of this state of law, when it passed the Punjab Act X of 1960 and if it wanted to take away this right of the heirs, something more specific was needed than the language employed in this sub-clause introduced by the amendment.
(5) It is pertinent to mention that the property which was the subject-matter of the sale, in this sub-clause, was the one inherited by the female from her husband or through her son who in his turn had inherited the same from his father. The emphasis seems to be on the source from which the property sold was inherited by the female. This would further be clear from the provisions of Sub-section (2) fa) under which if the sale by the female was of property to which she had succeeded through her father or brother, the right of pre-emption had been Riven to her brother or brother's son, and if the sale of such property had been by her son or daughter after they had inherited that property from her, such a sale could be preempted by the female's brother or her brother's sons. The right of pre-emption in Sub-section (2)(b) Secondly has admittedly been given to the husband's brother and the husband's brother's son of such female, meaning thereby that the property should remain with the near relations of the husband. IB the First, the right is given to the son or the daughter and failing them, to the persons mentioned in Secondly. From that it appears that the intention of the legislature was that in First were included the sons and daughters of the husband of such female and not only in his son and daughter from the body of such female.
(6) It does not stand to reason that the legislature intended that the husband's son or daughter, though from a different wife, should not have the right to pre-empt the sale of the land inherited by the female from that husband, when admittedly in Secondly, the husband's brother or the husband's brother's son, who were distantly related to the husband than his son or daughter, had been given such a right.
(7) After the amendment made in this sub-clause by the Punjab Pre-emption (Amendment) Act XIII of 1964, the right is in the son or daughter of such husband of the female. No room for doubt is now left that the intention of the legislature from the very beginning was that the right of preemption under First should be given to the son or daughter of such husband of the female vendor. This amendment has merely clarified the position and the intention of the legislature, because the language employed previously was capable of the other interpretation as well. This would also be clear from the statement of objects and reasons of the Bill leading to this amendment, where it was stated --
"It appears that the intention of the Legislature in enacting section 15(2) of the Punjab Pre-emption (Amendment) Act 1960 (Punjab Act No. 10 of 1960), was to vest the right of pre-emption in the offsprings of the husband in regard to the property to which a female had succeeded through such husband. But this intention is not clear from the words used in Clause (b) of section 15(2). The clause as it now stands may well include the son or daughter of such female by some other husband as also the brother or brother's son of a husband of such female other than the one through whom she succeeded to the property.
Another flaw in the provision is that the offsprings of the same husband through another wife are excluded by the wording used in existing provisions which seems to have resulted inadvertently."
39. In R.S.A No. 345 of 1960, which was decided by me on 26th of October. 1961 (Punj), after the Punjab Pre-emption(Amendment) Act X of 1960 had come into force and long before the 1964 amendment was introduced, while interpreting section 15(2)(b) first, I had held that the right of pre-emption had been given only to the son or daughter from the womb of such female In that case, the step-daughter of the female was wanting to pre-empt the sale by her step-mother, and I had held that she had no such right. As I have already said the language employed in First was capable of the construction I had placed on the expression 'daughter of such female' occurring in First. It is also noteworthy that in Secondly, husband's brother's son and not the husband's brother's daughter of such female had been given the right of pre-emption. This decision of mine was confirmed by the Letters Patent Bench on 10th of May 1965. During the course of the judgment, the learned Judges observed -
"On the reading of these provisions (as they stood before the 1964 amendment) obviously the learned Single Judge had no option but to hold that the plaintiff Mst Jai Kaur not being from the body of Mst. Sobhi had no right of challenge."
The Letters Patent Appeal was, however, allowed on account of the amendment introduced by Punjab Act XIII of 1964, Riving the right of pre-emption to the son or daughter of such husband of the female.
40. After the matter had been thrashed out before we in this Full Bench. I am of the view that that decision of mine was not correct.
41. With these observations, I agree with my learned brother, Shamsher Bahadur. J. that the appeal should bp dismissed with no order as to costs.
P.D. Sharma, J.
42. I agree that the appeal should be dismissed with no order as to costs. I have nothing to add.