Bachan Singh vs Jas Kaur

A.D. Koshal, J.—The following pedigree-table lends assistance in appreciating the facts involved in this plaintiff''s second appeal which has arisen from a suit for pre-emption:

Mehma Singh was the last male holder of the land in dispute which has an area of 67 bighas 14 biswas. On his death, his widow Shrimati Basanti succeed to the land. Shrimati Basanti herself died on the 16th of July, 1956, i.e., about a month after the enforcement of the Hindu Succession Act and her daughters Kartaro and Angrezo became owners of the land as her heirs. On the 18th March, 1964, Kartaro and Augrezo sold the disputed land to Shrimati Jas Kaur and others, respondents Nos. 1 to 10, for Rs. 20,000/- by a registered sale deed. The appellant brought a suit for possession of the land on the basis of pre-emption with the allegations that he was the son of the vendors'' father''s brother and was also a cosharer in the khata of which the disputed land formed a part and that these two qualifications gave him a right of pre-emption in respect of the sale as against respondents Nos. 1 to 10. It was also pleaded by him that the actual price paid for the land in dispute was Rs. 12,000/- and that the balance had been fictitiously added merely to scarce away prospective pre emptors.

Respondents Nos. 1 to 10 resisted the suit and pleaded that the entire ostensible price had actually been paid, that the appellant was no relation of the vendors or a cosharer in the said khata and had, therefore, no right to pre-empt the sale and that the suit was liable to dismissal as it was for partial pre-emption. Another plea raised was that respondents Nos. 1 to 10 were entitled to the expenses incidental to the sale in the event of the suit being decreed.

The parties went to trial on the following issues:

Is the suit for partial pre-emption as alleged? If so, with what effect? O.P.D.

Is the plaintiff possessed of preferential right of pre-emption? O.P.P.

Was the sale consideration of Rs. 20,000/- fixed in good faith or actually paid? O.P.D.

In case issue No. 3 is not proved, what is the market value of the disputed property? O.P. Parties.

5 Are the defendants entitled to registration expenses besides sale consideration? O.P.D.

Relief.

Later on, respondents Nos. 1 to 10 amended their written statement and added an objection that the appellant had no right to pre-empt the sale in dispute because the land covered by it had been inherited by the venders from their mother. Additional issue No. 5-A was, therefore, framed by the trial Court and is in the following terms:

5-A. Whether the vendors-defendants inherited the suit-land from their mother ? If so, its effect ? O.D.

The suit was decreed on the 19th of March, 1966, by Shri D.K. Mahajan, Subordinate Judge 1st Class, Rajpura, who held that although the disputed land was inherited by Kartaro and Angrezo vendors from their mother, Shrimati Basanti, that fact did not disentitle the appellant to pre-emption as his case was covered not by sub-section (2) but by sub-section (1) of section 15 of the Punjab-Pre-emption Act as amended in 1960. That section is in the following terms:

(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'' son of the vendor orvendors;

SECONDLY, in the brothers or brothers'' sons of the vendor or vendors;

THIRDLY, in the father''s brothers or fathers'' brothers'' sons of the vendor or vendors;

FOURTHLY, in the other co-shares;

FIFTHLY, in the tenants who hold under tenancy of the vendor or vendors the land or property or a part thereof;

(c) where the sale is of land or property owned jointly and is made by all the co-shares 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 vendor;

THIRDLY, in the father''s brothers or father''s brother''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 property is ay 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 learned trial Judge found it proved that the appellant was the father''s brother''s son 0f the vendors and also a co-sharer in the khata above-mentioned and that he had, therefore, a right of pre-emption under Thirdly and Fourthly of clause (b) of sub-section (1) of section 15. Accordingly, issue No. 2 was decided in favour of the appellant and issue No. 5-A against respondents Nos. 1 to 10. No arguments were addressed to him on issue No. 1 which was decided in the negative.

* * *this view of the matter, issue No. 4 was held not to arise. Under issue No. 5 the finding was that respondents Nos. 1 to 10 were entitled to an amount of Rs. 2,400/- on account of expenses incidental to the sale, in case of the suit being decreed. It was in view of these findings that the learned trial Judge passed a decree in favour of the appellant for possession of the land in dispute by pre-emption on payment of Rs. 22,400/-. The parties were left to bear their own costs but a direction was given that if the appellant did not pay the amount of Rs. 22,400/- on or before the 15th of June, 1966, his suit would stand dismissed with costs.

The matter was re-agitated by respondents Nos. 1 to 10 in an appeal which was accepted on the 21st of March, 1967, by Shri Fauja Singh Gill, Additional District Judge, Patiala, who was of the opinion that the case was governed not by sub-section (1) but by sub-section (2) of section 15 of the Punjab Pre-emption Act inasmuch as, according to him, the vendors had succeeded to the land in dispute through their father even though their predecessor-in-title was only their mother from whom they inherited the same. He held, therefore, that the appellant did not hold any qualification entitling him to pre-empt the sale. No other point having been argued before him on behalf of the parties, he reversed the findings of the trial Court on issues Nos. 2 and 5-A and dismissed the appellant''s suit, leaving the parties to bear their own costs of the proceedings in both the Courts. It is the decree passed by the learned Additional District Judge against which the appeal before me has been filed.

Learned counsel for the appellant has contended that there was no proof on the record that the vendors had succeeded to the disputed land through their father even though the latter did hold the same at one time. His case is that Shrimati Basanti held the land as a full owner, that the vendors inherited the land from her but that there was no proof that Shrimati Basanti inherited rights of full ownership in the land from her husband. According to him, unless it was proved by respondents Nos. 1 to 10 that Shrimati Basanti succeeded to her husband after the enforcement of the Hindu Succession Act which was in June, 1956, i.e., only about a month before her death, she could not be said to have inherited the property sold from her husband because before the said enforcement a widow was entitled only to succeed to a life estate without any rights of alienation in respect of immovable property which devolved on her from her husband. It is contended that in such a situation the widow must be held to have gained the rights of full ownership in the land in dispute by operation of law and not by succession from her husband, that it were such rights which passed on her death to the vendors, that such rights never came to Shrimati Basanti from her husband and that, therefore, the vendors could not be said to have succeeded to those rights through their father I find myself in full agreement with this part of the appellant''s case. While interpreting section 15(2) of the Punjab Pre-emption Act, Mahajan and Narula, JJ. held in Jai Singh v. Mughla 1937 P.L.R. 475, that "a widow who originally succeeded to some land or property through her husband as a limited owner under the Hindu Law, is not deemed to have ''succeeded'' to the absolute and full ownership of the estate in the said land or property, which she acquires u/s 14(1) of the Hindu Succession Act, on the coming into force of the said provision, by the merger of her lesser estate into the greater one, within the meaning of clause (b) of sub-section (2) of section 15 of the Pre-emption Act, and that, therefore, a sale of such absolute estate by her after coming into force of the Succession Act, is pre-emptible under sub-section (1), and not under sub section (2) of section 15". That was a case of a sale by the widow herself but the decision therein applies fully to the present case inasmuch as Shrimati Basanti, must be held to have acquired rights of absolute ownership over the land in dispute, which rights the vendors sold to respondents Nos. 1 to 10, by operation of law and not through her husband. It were those rights, as already stated, which devolved on the vendors after her death. If Shrimati Basanti never got those rights from her husband but acquired them otherwise and passed them on by succession to her daughters the latter cannot be said to have succeeded to those rights through their father. Section 15(2) would thus not come into play and the case would be governed by section 15(1).

Learned counsel for the respondents raised the following two contentions in order to get out of the situation which the above finding would entail:

(1) Had the vendors been illegitimate daughters of Shrimati Basanti they would not have had any right of pre-emption u/s 15 of the Punjab Pre-emption Act as laid down in Gulraj Singh v. Mota Singh. They succeeded to Shrimati Basanti not because they were her daughters but because they were born to her from the loins of Mehma Singh and ware his daughters. It follows that they succeeded to the land in dispute through their father, even though they got it from their mother.

(2) It was for the appellant to prove that Shrimati Basanti inherited the land from her husband on a life estate, i.e., before the enforcement of the Hindu Succession Act. He not having done so his case could not fall u/s 15(1) but would fall u/s 15(2) of the Punjab Pre-emption Act. Both the contentions are fallacious and without substance. With regard to the first contention, there is no dispute that the words "son of daughter" occurring in section 15 of the Punjab Pre-emption Act refer to only a legitimate son and a legitimate daughter as laid down in Gulraj Singh v. Mota Singh (Supra). But then I do not see how we are concerned with that aspect of the matter in the present case. It is not Kartaro and Angrezo who are seeking pre-emption but quite a different person, namely, Bachan Singh appellant who is (now admittedly) the brother''s son of Shrimati Basanti''s husband Mehma Singh. The legitimacy or otherwise of Kartaro and Angrezo, therefore, is not at all a relevant point. Nor can it be said that they have succeeded to Shrimati Basanti by reason of the fact that they were her daughters from the loins of her husband Mehma Singh. Even if they were her illegitimate daughters, they would succeed to the estate of their mother under the provisions of the Hindu Succession Act. It cannot thus be said, therefore, that they have succeeded to the disputed land through Mehma Singh merely because they are his legitimate daughters.

With regard to the other contention, it may be stated that sub-section (2) of section 15 of the Punjab Pre-emption Act clearly enacts an exception to the provisions of sub-section (1) of that section. If a person proves that his case falls within sub-section (1), his duty is at an end and he is not bound to show further that he is not a person covered by sub-section (2). Any person who sets up an exception must prove facts which make the same applicable. In this view of the matter, it is clearly for respondents Nos. 1 to 10 to show that the vendors succeeded to the disputed land through their father and that this was so because Shrimati Basanti succeeded to that land after the passing of the Hindu Succession Act. The matter may be looked upon from another angle. Section 101 of the Indian Evidence Act lays down that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. The appellant having proved those facts which bring his case within the ambit of sub-section (1) has no further responsibility in the matter before he can be held entitled to a decree. It is respondents Nos. 1 to 10 who assert the existence of facts (that the vendors succeeded to the disputed land through their father and that they did so because Shrimati Basanti got it before the passing of the Hindu Succession Act as an heir to her husband) which would, if proved, bring the case under sub-section (2) and would take it out of the ambit of sub-section (1). According to the provisions of section 101 of the Indian Evidence Act, therefore, it is their duty to prove such existence. They having failed in that duty, it must be held that the appellant is entitled to take advantage of the qualifications covered by sub-section (1) with which he is proved to have been clothed.

No other point has been urged before me and, for the reasons stated, I reverse the findings of the learned Additional District Judge on issues Nos. 2 and 5-A. In the result, the appeal succeeds and is accepted and the decree passed by the trial Court is restored. There will be no order as to cots.