Punjab-Haryana High Court
Hunta Ram vs Mohan Singh And Others on 9 March, 1994
Equivalent citations: AIR1994P&H210, (1994)107PLR312, AIR 1994 PUNJAB AND HARYANA 210, (1994) 2 PUN LR 312, (1994) 2 CURLJ(CCR) 356, 1994 REVLR 2 65, (1994) 2 RRR 388, (1994) 2 LJR 63, 1994 HRR 384
JUDGMENT
1. This regular second appeal is directed against the judgment and decree of the first appellate court affirming on appeal those of the trial Court dismissing the sui of the plaintiff-appellant for possession by pre-emption.
2. The facts:--
Smt. Mamkauri widow and Udmi Ram, Hazari Ram and Asha Ram sons of late Mahna son of Panna were the owners of agricultural land measuring 51 Kanals 6 Marias situated in village Shahpur Begu, Tehsil and District Sirsa. They sold the same to Mohan Ram etc., defendant-respondents vide sale deed dated June 16, 1977 for an ostensible consideration of Rs. 32,062.50 P. The plaintiff appellant sought to pre-empt the land on the ground that he was a co-sharer and had a superior right to pre-empt qua the vendee-defendant respondents. The suit for possession by way of pre-emption was filed by him on June 15, 1978.
3. From the pleadings of the parties, the trial court framed the following issues:--
(1) Whether the plaintiff has a superior right of pre-emption? OPP (2) Whether the sale price of Rupees 32062.50 P was fixed in good faith and was actually paid at the time of sale? OPD (3) Whether the sale deed was in the knowledge of the plaintiff? OPD (4) Whether the defendants are entitled to improvement charges on the suit land? OPD (5) Relief.
4. Issue No. 1 was decided against the plaintiff-appellant and in favour of the defendant-respondents; issue No. 2 was decided in favour of the defendant-respondents and against the plaintiff-appellant; issues Nos. 3 and 4 were decided against the defendant-respondents and in favour of the plaintiff-appellant and on ultimate analysis, the suit was dismissed by the Sub Judge IInd Class, Sirsa vide judgment and decree dated June 3, 1980. Aggrieved against the judgment and decree of the trial Judge, the plaintiff challenged the same in first appeal before the Additional District Judge, Sirsa.
5. The first appellate Court, on appraisal of the evidence, came to the conclusion that the plaintiff-appellant had a superior right of pre-emption being aco-sharer in the suit land. He had purchased the land measuring 1 1/2 acres from one Smt. Chando, daughter of Mana in the same Khewat, viz. No. 1079 vide sale deed dated June 3, 1977, Ex.P.3. whereas the defendant respondents had purchased the suit land out of Khewat No. 1079 on June 16, 1977. The plaintiff-appellant was a co-sharer in the suit land on the date of sale to the defendant respondents. However, the learned Additional District Judge felt that where the sale is made jointly by males and females, the same will be covered by the provisions of Section 15(2)(b) of the Punjab Pre-emption Act, 1913 (for short, the Act) and the plaintiff cannot be deemed to have a superior right to pre-empt the sale even if he is held to be a co-sharer.
6. The view taken by the first appellate court cannot be sustained. The first appellate Court, relying upon a decision of this Court in Chander v. Chao Khan, 1980 Rev LR 126, came to the conclusion that where males and females effect sale of a joint holding and they had sold their respective shares, the sale must be treated to far as the female was concernned pre-emptible under Section 15(2) of the Act and the pre-emptor had no superior right of pre-emption.
7. The only question which arises for determination is whether the provisions of sub-section (2) of Section 15 of the Act override the provisions of sub-section (1) of Section 15 and if a sale falls within both these sub-sections, sub-section (2) must prevail notwithstanding anything contained in subsection (1) of Section 15. The validity of Section 15 of the Act, as amended by the Punjab Pre-emption (Amendment) Act, 1960, was challenged in the Supreme Court through a writ petition under Article 32 of the Constitution of India and the apex Court vide its judgments reported as Atam Prakash v. State of Haryana, AIR 1986 SC 859, declared clauses 'First', 'SecondlY' and Thirdly' of Sections 15(1)(a) and 15(1)(b) and clause 'First',' 'Secondly' and 'Thirdly' of Section 15(1)(c) and the whole of Section 15(2) of the Act as ultra vires the Constitution by observing thus:--
"A scrutiny of the list of persons in whose favour the right of pre-emption is vested under Section 15 reveals certain glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession. First we notice that neither the father nor the mother figures in the list though father's brother does. The son's daughter and the daughter's daughter do not appear though the son's son and the daughter's son do. The sister and the sister's son are excluded though the brother and the brother's son are included. Thus relatives of the same degree are excluded either because they are women or because they are related through women. It is not as if women and those related through women are altogether excluded because the daughter and daughter's son are included. If the daughter is to be treated on a par with the son and the daughter's son is treated on a par with the son's son it does not appear logical why the father's son (brother) should be included and not the father's daughter (sister). These are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in Section 15 as entitled to the right of preemption. It is ununderstandable that why a son's daughter, a daughter's daughter, a sister or a sister's son shquld have no right of preemption whereas a father's brother's son has that right. As Section 15 stands, if the sole owner of a property sells it to his own father, mother, sister, sister's son, daughter's daughter, or son's daughter, the sale can be defeated by the vendor's father's brother's son claiming a right of pre-emption.
We are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-emption Act of the kinsfolk entitled to pre-emption. The right of preemption based on consanguinity is a relic of feudal past. It is totally inconsistent with the constutitional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to preemption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and clauses 'First' 'Secondly' and 'Thirdly' of Sections 15(1)(a), 'First', 'Secondly' and Thirdly' of Section 15(1)(b), clauses 'First', 'Secondly' and Thirdly' of Section 15(1)(c) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution."
8. In Jagdish v. Nathi Mal Kejriwal, AIR 1987 SC 68, a question arose before the apex Court as to what is the true scope of the position of other co-sharers in clause 'Fourthly' of Section 15(1)(b) of the Act. The apex Court held that where a co-sharer claiming a right of pre-emption fell either under clause 'First' or clause 'Secondly' of Section 15(1)(b) of the Act, he was not entitled to pre-empt the sale. While so holding, it observed thus:--
"It is argued by the learned counsel for the petitioners that since the suit land belonged to the joint family and it had not been sold by all the co-sharers they were entitled to claim the. right of pre-emption under clause 'Fourthly' of Section 15(1)(b) of the Act because they happened to be the non-alienating co-sharers.
Although there is no specific finding that the property is the joint property in this case, we shall assume for purposes of this judgment that the suit land was joint property. In order to understand the meaning of the words 'other co-sharers' in Section 15(1)(b) we have to read the Act as it stood before the decision in Atam Prakash's case (AIR 1986 SC 859) (supra). It is seen that the expression 'other co-sharers' in clause 'Fourthly' of Section 15(1)(b) of the Act refers to only those co-sharers who do not fall under clause 'First' or 'Secondly' or Thirdly' of Section 15(1)(b) of the Act. Since the petitioners admittedly fall either under clause 'First' or under clause 'Secondly' of Section 15(1)(b) of the Act they are clearly outside the scope of clause 'Fourthly'. Therefore, the petitioners cannot claim the right of pre-emption under clause 'Fourthly'. We do not, therefore, find any substance in this contention which was urged for the first time before the High Court. The suit was, therefore, rightly dismissed by the High Court holding that the petitioners were no longer entitled to any relief under the Act. This petition, therefore, fails and it is dismissed."
9. The correctness of the judgmen rendered in Jagdish's case (AIR 1987 SC 68) (supra) was challenged in Bhikha Ram v. Ram Sarup, AIR 1992 SC 207, wherein the interpretation placed by the apex Court on clause 'Fourthly' of Section 15(1)(b) of the Act in Jagdish's case was not approved and it was held by the apex court that the right of pre-emption conferred on the co-sharers who happened to be kinsfolk also could not be denied. In the judgment rendered in Atam Prakash's case (AIR 1986 SC 859) (supra), the apex Court does not exclude the co-sharers from preempting the sale even if the co-sharers are kinsfolk specified in the preceding three clauses of S. 15(1)(b) of the Act. The apex Court in paragaph 4 of its judgment observed thus (at pp. 211, 212) :--
"....... We find it difficult to hold that the purport of this Court's decision Atam Prakash's case (AIR 1986 SC 859) was to deny the right of pre-emption to those relative or relatives of the vendor or vendors who were specified in the erstwhile first three clauses of S. 15(1)(b) even if they happen to be co-sharers. The expression 'other co-sharers' was used in the fourth clause of the said provision to ensure that no co-sharer was left out or omitted and not to deny the right to kinsfolk co-sharers covered by the preceding clauses. If the preceding claauses were not erased from the statute book as unconstitutional, the kinsfolk would have exercised the right in the order of preference, for which no justification was found. The relations in the first three clauses of Section 15(1)(b) may or may not be co-sharers. The use of the expression 'other' in clause 'Fourthly' conveys the possibility of their being co-sharers also. What this Court disapproved as offensive to Articles Hand 15 is the classification based on consanguinity and not on co-ownership. The right of preemption to co-sharers is held to be intra vires the Constitution. Therefore, it is difficult to hold that this Court intended to deny the right of pre-emption of those kinsfolk even if they happened to be co-sharers. That would clearly be discriminatory. With respect, therefore, we find it difficult to approve of the interpretation placed on clause 'fourthly' of Section 15(1)(b) of the Act by this Court in Jagdish's case (AIR 1987 SC 68). We think on a proper construction of that clause after the preceding clauses were held to be unconstitutional, the word 'other' preceding the word 'co-sharer' is rendered redundant. We, therefore, do not approve the ratio of Jagdish's case and overrule the same."
10. In the light of this authoritative pronouncement by the apex Court in Bikha Ram's case (AIR 1992 SC 207) (supra), it is to be held that where the suit land belongs to more than one co-sharers and had not been sold jointly by all the co-sharers, a co-sharer is entitled to claim the right of pre-emption under clause 'Fourthly' of S. 15(1)(b) of the Act irrespective of the fact that one of the co-sharers is a female. Thus, in the instant case, the plaintiff-appellant had a superior right of pre-emption. The view taken by this Court in Chander v. Chao Khan, 1980 Rev LR 126 and Nand Ram v. Pehlad Singh, 1979 Pun LJ 307, is no more a good law in view of the authoritative pronouncement of the apex Court in Bhika Ram's case (supra). Since the matter has been finally settled by the apex Court, I do not think it proper to refer the case to a larger Bench. The judgments rendered by this Court in Chander's and Nand Ram's cases become per incuriam.
11. The learned counsel for the plaintiff-appellan did not dispute the correctness of the finding recorded by the courts below under issue No. 2. Similarly, the counsel for the vendee-respondents did not dispute the correctness of the findings recorded under other issues, including issue No. 1. The plaintiff-appellant has been held to be a co-sharer and he is entitled to pre-empt the sale on payment of Rs. 32,062.50 P. He is also liable to pay stamp and registration charges.
12. For the reasons stated above, the appeal succeeds and the judgments and decrees of the courts below are set aside. The plaintiff-appellant is entitled to pre-empt the sale on payment of Rs. 32,062.50 P. and stamp and registration charges. He will deposit the sale price on or before May 2, 1994. There will be no order as to costs.
13. Appeal allowed.