Punjab-Haryana High Court
Savitri Devi And Others vs Gajraj Singh And Others on 11 March, 2014
Equivalent citations: AIR 2014 PUNJAB AND HARYANA 73
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
RSA No.526 of 1988 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA No.526 of 1988
Date of Decision: 11.03.2014
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Savitri Devi and others
. . . .Appellants
Versus
Gajraj Singh and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Ms.Alka Sarin, Advocate,
for the appellants.
Mr.Aman Jain, Advocate,
for the respondents.
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RAKESH KUMAR JAIN, J.
The question of law raised in this appeal is "as to Whether suit filed by the plaintiffs/appellants for possession by way of preemption on being fathers' brothers' sons of the vendors and co-sharers in the land in dispute, dismissed in view of the judgment of the Supreme Court in the case of "Jagdish and others Vs. Nathi Mal Kejriwal and others" AIR 1987 Supreme Court 68, deserves to be decreed in view of judgment of the Supreme Court in the case of "Bhikha Ram Vs. Ram Sarup and others" AIR 1992 Supreme Court 207?
The plaintiffs filed suit for possession by way of pre-emption of the sale deed dated 30.4.1984 executed by Dalip Singh son of Sardara Singh of the undivided interest in RSA No.526 of 1988 -2- the land in dispute, in favour of the defendants for a consideration of `1,36,000/- exercising his superior right being the father's brother's son of the vendor and a co-sharer.
In the written statement, the defendants denied the superior rights of the plaintiffs and after the replication was filed, issues were framed on 4.9.1985, which reads as under: -
"1. Whether plaintiff has a superior right of pre-emption qua the suit as alleged? OPP
2. Whether sale price was fixed in good faith and actually paid to the vendor, as alleged? OPP
3. If issue No.2 is not proved, what is the market value of the suit land?
OP Parties.
4. Whether the suit is bad for non-joinder of necessary parties? OPD
5. Whether the plaintiff has not deposited the 1/5th pre-emption amount in time? OPD
6. Whether the suit is bad for partial pre-emption? OPD RSA No.526 of 1988 -3-
7. Whether plaintiff has waived his right of pre-emption as alleged?
OPD
8. Whether vendees-defendants are entitled for the stamp and registration expenses, as alleged, if so to what amount? OPD.
9. Relief."
The trial Court recorded in issue No.1 that the defendants have conceded that the plaintiffs have the superior right. Ultimately, vide its judgment and decree dated 19.1.1987, the suit of the plaintiffs was decreed subject to deposit of `1,53,530/- less 1/5th pre-emption money (`27000/- deposited on 30th May, 1985) on or before 19.3.1987.
The appeal filed by the defendants was however, allowed in view of the judgment of the Supreme Court in the case of "Jagdish and others Vs. Nathi Mal Kejriwal and others" AIR 1987 Supreme Court 68, in which it has been held that "The expression 'other co-sharers' in clause 'Fourthly' of S.15(1)(b) refers to only those co-sharers who do not fall under clause 'First' or 'Secondly' or 'Thirdly' of S.15(1)(b). Consequently, where the co-sharers claiming right of pre- emption fell either under clause 'First' or under clause 'Secondly' of S.15(1)(b), they being clearly outside the scope of RSA No.526 of 1988 -4- clause 'Fourthly', suit by them for pre-emption was not maintainable".
Learned counsel for the appellants has submitted that judgment in the case of Jagdish and others (Supra) has been subsequently overruled by the Supreme Court in the case of "Bhikha Ram Vs. Ram Sarup and others" AIR 1992 Supreme Court 207. It is also submitted that even the right of co-sharer provided under Section 15(1)(b), 'Fourthly' has been abolished by Haryana Amendment Act 10 of 1995 but in the case of "Shyam Sunder and others Vs. Ram Kumar and another" 2001 (8) Supreme Court Cases 24, it has been held that the said Act would operate prospectively and would not affect the rights which had accrued to the parties on the date of the suit or on the date of the passing of the decree by Court of first instance before the amendment.
On the other hand, learned counsel for the respondents has submitted that as per Section 3 of Punjab Pre-emption (Repeal) Act, (11 of 1973) [for short 'the 1973 Act], no Court could pass a decree in any suit for pre-emption on and from the date of commencement of the 1973 Act and has referred to a decision of the Supreme Court in the case of "Sadhu Singh and another Vs. Dharam Dev and others"
1980 PLJ 530.
I have heard learned counsel for the parties, carefully considered their submissions and found that Punjab Pre-emption Act, 1913 [for short 'the Act'] was made RSA No.526 of 1988 -5- applicable to whole of Punjab and the Union Territory of 'HP' as it then was. It was repealed in respect of the State of Punjab by the Act of 1973.
In the case of Sadhu Singh (Supra) referred by the learned counsel for the respondents, it has been held that as per Section 3 of the 1973 Act, there is a statutory mandate against passing of a decree for enforcement of a right of pre-emption in the State of Punjab. In the said case, the issue involved was as to whether a decree already passed by the trial Court, challenged in appeal after the Act was passed and affirmed on appeal would fall within the mischief of Section 3 while the case was pending before the High Court. It was decided that section 3 interdicts the passing of a decree even in appeal because decree challenged in appeal is reopened and the appellate hearing is a re-hearing of the whole subject matter and when a decree is passed in appeal the first decree merges in the appellate decree and it comes within the scope of Section 3.
It may be clarified that the present suit has emerged from Gurgaon in the State of Haryana and not from the State of Punjab. Thus the arguments raised by learned counsel for the respondents has no substance at all.
In order to appreciate the submission made by learned counsel for the appellant, it would be worthwhile to refer to Section 15 of the Act, which reads as under: - RSA No.526 of 1988 -6-
"15. Person in whom right of pre-
emption vests in respect of sales of agricultural land and village immovable property.-
(1) The right of pre-emption in respect of agricultural land and village immovable and village immovable 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' son or daughters' son of the vendor or vendors;
SECONDLY, in the brothers or brothers' sons of the vendor or vendors;
RSA No.526 of 1988 -7-THIRDLY, in the father's brothers or fathers' brothers' son 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 co-sharers jointly-
FIRST, in sons or daughters or sons' sons or daughters' sons of the vendors.
SECONDLY, in the brothers or brothers' sons of the vendor;
THIRDLY, in the father's brothers or father's brothers's sons of the vendors;
FOURTHLY, in the tenants who hold under tenancy of the vendors or any 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 RSA No.526 of 1988 -8- property is by the son or daughter of such female after inheritance, the right of pre-
emption shall vest, -
(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 has 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 pre-
emption shall vest, -
FIRST, in the son or daughter of such husband of the female;
SECONDLY, in the husband's brother or husband's brother's son of such female."
The Supreme Court in its earlier decision in the case of "Atma Prakash Vs. State of Haryana" 1986 (2) SCC 249 held that the right of pre-emption given to co-sharers as well as to the tenant can be justified as they RSA No.526 of 1988 -9- constitute a class by themselves and upheld the constitutional validity of clause 'fourthly of section 15(1)(a) and clauses 'fourthly' and 'fifthly' of section 15(1)(b) and clause fourthly of section 15(1)(c), not infringing Articles 14 or 15 of the Constitution of India, but it did not find any justification for the classification contained in section 15 which conferred a right of pre-emption on the kinsfolk and the right of pre-emption based on consanguinity, was held to be ultra vires to the Constitution of India and struck down clauses 'first', 'secondly' and 'thirdly' of section 15(1)(a), clauses 'first', 'secondly', and 'thirdly' of section 15(1)(b) and clause 'first', 'secondly', and 'thirdly' of section 15(1)(c) and the entire section 15(2). In the case of Jagdish and others (Supra), relied upon by the Appellate Court, in dismissing the suit of the plaintiffs, it was held by the Supreme Court that in Clause 15(1)(b) 'Fourthly' that expression 'other co-sharers' 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 but the judgment in the case of Jagdish and others (Supra) has been specifically overruled by the Supreme Court in the case of Bhikha Ram (Supra) observing that "we find it difficult to hold that the purport of the of Court's decision in Atam Prakash's case 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 section 15(1)(b) even if they happen to be co-sharers. The expression 'other RSA No.526 of 1988 - 10 - 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-cosharers covered by the preceding clauses. If the preceding clauses 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-sharer also. What this Court disapproved as offensive to Articles 14 and 15 is the classification based on consanguinity and not on co-ownership. The right of pre-emption to co-sharers is held to be intra-vires to 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. 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".
Now, the question arises "as to whether the plaintiffs would still be entitled to decree when right of RSA No.526 of 1988 - 11 - co-sharer has been abolished by way of Haryana Act 10 of 1995?"
In this regard, it is pertinent to mention that the pre-emptor has to maintain his statutory right on the date of sale, suit and decree. The sale deed is of 30.4.1984, suit was filed on 25.9.1986 and decreed on 19.1.1987. In the case of Shyam Sunder and others (Supra), it has been held that the amendment Act is prospective in operation and would not affect the rights which had already accrued to the parties to the pre-emption suit on the date of suit or on the date of the passing of the decree by the Court of first instance. Thus, the decree passed in favour of the plaintiffs is also saved.
In view of the aforesaid discussion, the question involved in this appeal is answered in favour of the plaintiffs/appellants and it is held that the plaintiffs have right to pre-empt the sale being a co-sharer. Accordingly, the judgment and decree of the Appellate Court is set aside and that of the trial Court is restored.
Before parting, it would be quite necessary to mention that vide order dated 31.8.1988, this Court had allowed the plaintiff to withdraw 4/5th of the amount deposited by them in the trial Court with permission to deposit it again within a month of decision of this Court.
In view of the said order dated 31.8.1988, the plaintiffs/appellants are allowed to deposit the 4/5th amount RSA No.526 of 1988 - 12 - which was withdrawn from the trial Court within a period of one month from the date of passing of this order.
(RAKESH KUMAR JAIN) 11.03.2014 JUDGE Vivek Pahwa Vivek 2014.03.19 10:31 I attest to the accuracy and integrity of this document