Banta Singh and another vs Smt. Harbhajan Kaur and others

Gurdev Singh, J.—By means of a registered sale deed, dated 20th August, 1964, Exhibit P. 2, Arjan Singh, Surjan Singh, Amar Singh, Gurmej Singh, sons of Bhag Singh, and their mother Shrimati Khem Kaur sold 307 Kanals 6 Marias of land jointly owned by them at Patti Dogran, Kaithal, alongwith kothas etc., to the appellants Banta Singh, Inder Singh, Ujagar Singh and Sandagar Singh for Rs. 36,605/-. Shrimati Harbhajan Kaur claiming to be the daughter of Arjan Singh, one of the vendors, brought a suit to pre-empt this sale. In resisting her claim, it was not admitted that she was the daughter of Arjan Singh vendor, and it was pleaded inter alia that she had no superior right of pre-emption, that the suit was bad for partial pre-emption, and that the vendees were entitled to cost of improvements and expenses of the sale. Though the learned trial Judge found that the plaintiff Shrimati Harbhajan Kaur was the daughter of Arjan Singh, one of the vendors and thus she had right of pre emption superior to that of the vendees, he dismissed the suit on the finding that the suit as instituted was for partial pre-emption in as much as one of the six kothas sold along-with the land had not been included in the subject matter of the suit. In the appeal preferred by the pre-emptor, the Additional District Jugde, Karnal, while agreeing with the finding of the trial Court that one of the kothas covered by the sale deed had not been included in the suit permitted the plaintiff to amend the plaint so as to include the entire property to which the sale related. The amendment having been made, the learned Additional District Judge decreed Shrimati Harbhajan Kaur''s suit in its entirety on payment of Rs. 38605/- together with the expenses incurred by the vendees on the sale amounting to Rs 4839.75 P. It is against this appellate decree, dated 4th December, 1967, that the vendees have now come up in second appeal

Three contentions have been raised by their learned counsel. He urges:

(1) That the suit was liable to dismissal in its entirety as one-fifth of the sale-price was not deposited within the time fixed by the trial Court,

(2) that the suit as instituted did not embrace the entire property covered by the sale deed, and being thus for partial pre-emption had to be thrown out, and the learned Additional District Judge had no jurisdiction to remedy the defect by permitting the amendment, and

(3) that, in any case, the plaintiff Shrimati Harbhajan Kaur being the daughter of one of the vendors only was entitled to claim decree only in respect of the share of her father in that property, and she had no right to pre-empt the rest of the property sold.

On reference to the record, I find that originally the trial Court had ordered one-fifth of the sale-price to he deposited in Court up-till 8th October, 1935. Though the plaintiff failed to make the necessary deposit by that date on 13th October, 1995, she applied to the Court for extension of time, stating :

The plaintiff had gone to a relation at Amritsar, and there she fell ill and due to hestilities as well, she could not come and deposit any money so far. The defendant has not appeared so far. No issues have been struck and there is sufficient cause to extend time.

Accepting her request, the learned Subordinate Judge by his order, dated 14th November, 1965, extended the time till 15th November, 1965, on 15th November, 1965, the plaintiff found that she could not make the deposit as the bank had closed. She there-upon promptly approached the Court either to accept the money or to extend the time for making the deposit by another ten days. The Court did not agree to take the money, but all the same, by its order, dated 15th November, 1965, extended the time till 17th November, 1966. Availing of this order, the plaintiff deposited the requisite amount on 16th November, 1965.

From the facts set out above, it is evident that though the requisite deposit u/s 22 of the Punjab Pre-emption Act was not made within the time originally fixed by the trial Court, the amount was deposited within the time extended by the trial Court. That the Court has the power to extend time for making such deposit is not disputed. Mr. Tirath Singh, appearing for the appellant, has, however, contended that the discretion in extending the time has been wrongly exercised and on insufficient grounds He argues that the provisions of section 22 of the Punjab Pre-emption Act (hereinafter called the Act) have to be strictly construed, and the Court is not entitled to extend the time where the default in making the deposit by the date originally fixed is not due to any circumstance beyond the control of the litigant concerned. In support of his contention, he has placed reliance on Inayat v. Darbara Singh 55 I.C. 621, Gian Chand v. Hem Rap and Karnail Singh and others v. Pran Nath3. In earliest of these cases, Inyat v. Darbara Singh 55 I.C. 621, though the trial Court had refused to grant the plaintiff''s application to extend the time on his failure to deposit the amount by the date fixed, on appeal the District Judge extended the time for making the deposit, and, accordingly, set aside the trial Court''s order rejecting the plaint. The relevant part of the District Judge''s order, as it appears in the judgment of the High Court, was in these, words :

I hold that the first Court''s order is perfectly correct, legal and just, but nevertheless as the plaintiffs are minors, I will give one more opportunity, on condition that Rs. 50/- be paid as compensation for the defendants.

Abdul Raoof J. held that the extension of time was not justified in the circumstances of that case, and the mere fact that the appellants were minors was absolutely no ground for extending the time. In this connection, the learned Judge observed:

The learned Judge in making the observation altogether forgot that the minors'' adult brother Darbara Singh was also a co-plaintiff in the case and had kept behind the scene. It is easy to perceive that he was as much interested in the appeal as his two minor brother. In my opinion, the learned Judge of the Court below exercised his discretion in an arbitrary manner in accepting the appeal and thereby extending the time for the deposit of the one-fifth of the sale price. The mere fact that the appellants were minors was absolutely no ground for interference in a suit for pre-emption, for while minors have been treated with leniency as regards limitation, with respect to other matters no exception has been made in their favour in the matter of claims for pre-emption.

This is the authority that has been followed by the same High Court in Gian Chand v. Hem Rap 105 I. C. 533 wherein Addison J agreed with the dictum that the fact that the plaintiff is a minor does not constitute a reason for extension of time for making the deposit u/s 22 of the Punjab Pre-emption Act which has to be strictly construed.

In Karnail Singh and others v. Pran Nath 1963 Cur L. J. 315, which is a decision of this Court, Shamsher Bahadur J, relied upon the decision of the Lahore High Court in Inayat v. Darbara Singh and others (supra) and held that though it is the discretion of the Court to grant extension of time to make a deposit, this discretion has to be exercised judicially, and a pre-emptor has to exercise a greater degree of caution when the requirement of the statute for making the deposit is mandatory. On reference to the facts of that case, it will be found that the extension of time was prayed for on the plea that the order regarding deposit was never conveyed to the plaintiff by the Court, and it was not passed in his presence. In up setting the order of extension of time, Shamsher Bahadur J observed as follows:

The learned Judge in the impugned order made no attempt to justify the grant of extension of time on the assertions made by the counsel in his affidavit, but observed that the lawyer may have been inattentive to the order when it was pronounced, the Court was influenced mainly by the consideration the it the litigant should not be permitted to suffer for the negligence of the counsel.

I am afraid, it is not possible to accede to the reasoning adopted by the learned Judge. No doubt, it is in the discretion of the Court to grant extension of time to make a deposit. This discretion, however, has to be exercised judicially. It seems to me that the counsel did not make out any case at all for the Court to grant him indulgence.

While I respectfully agree with the dictum that the provisions of section 22 of the Act with regard to the deposit are mandatory and have to be strictly complied with, I find that the authorities relied upon by the appellant''s learned counsel are clearly distinguishable on facts. It is not disputed, and it is well-settled, that under this provision the Court has discretion to extend the time originally fixed. Of course, the discretion has to be exercised judicially, and whether or not there is judicial exercise of the discretion would depend upon the facts of each case. On reference to the facts of the case in hand, I find that on the averments made by the plaintiff in her application for extension of time, the discretion cannot be said to have been exercised capriciously or for no adequate reasons. In dealing with this matter, it may be pointed out that though the appellant had taken an objection in her written statement that one-fifth of the sale price had not been deposited within the time allowed by law, this objection does not seem to have been pressed either before the trial Court or in the Court of first appeal, and no attempt was made to challenge the order extending the time for deposit by way of revision to this Court. In fact, the grievance voiced in the memorandum of appeal filed in this Court is not that the discretion had been wrongly exercised by the trial Court in extending the time, but merely that one-fifth of the sale-price was not deposited in time." I thus find no merit in the contention that the suit was liable to dismissal for the plaintiff''s failure to comply with the provisions of section 22 of the Punjab Pre-emption Act.

So far as the second contention raised on behalf of the appellant is concerned, there is no doubt that the suit as originally instituted did not include one of the kothas, which formed part of the property purchased by the appellant, and a suit for pre-emption is liable to dismissal if it is for partial pre-emption of the property covered by the sale sought to be pre-empted. In this case, however, the defect in the plaint has been remedied by the learned Additional District Judge permitting its amendment so as to include one of the kothas that had been inadvertently left out. The contention raised on behalf of the appellant is that the learned Additional District Judge was not justified in permitting the amendment so as to avoid the dismissal of the plaintiff''s suit, and that too when the period of limitation prescribed for a suit for pre-emption had long expired. Relying upon (Banarsi Dass v. Haji Abdul Ghani) 24 P.L.R 1909 page 103, it is urged that the rule that a suit for pre-emption must include the entire property comprised in the sale to which the pre-emptor''s right of pre-emption extends must be enforced in all cases, and if on the defendant''s objection the plaintiff persists in proceeding with the suit as originally framed, he must face the consequences. In that case, with which the learned Judges of the Punjab Chief Court were dealing, the plaintiff had not only persisted in proceeding with the suit despite the objection that it was for part all preemption but even in the appellate Count they never asked for leave to amend the plaint and persisted in proceeding with the suit as originally framed. It was in those circumstances that the High Court declined to permit amendment of the plaint in second appeal, observing as under:

The law regarding pre-emptors being required to sue to acquire the bargain of sale to the fullest extent of their right being a stringent one, he disobeyed it or omitted to comply with it at his peril. He fought out the question of his right to sue as he did in two Courts, and never so much as hinted at amendment until at all events his contention was over ruled by the Court of appeal. Is it right in the circumstances to allow him to amend ? Without attempting to lay down a hard and fast rule or to unduly fetter the discretion of the Court, we think, on the whole that he ought not to have been given permission. The scope of the suit has been changed considerably, and the value of it largely enhanced. Defendant is entitled to ask that he should get the benefit of the decision on the plea advanced by him after the strenuous fight he has had to make in order to make it good.

Allah Rakhia Khan v. Kala Ram 67 I C. 872, is not of much help to the appellant. Though Chevis, J. in that case had ruled that if in a suit for pre-emption the plaintiff intentionally sues for less than what is covered by the sale, he loses his right of pre-emption, yet he held that in cases where the error is merely accidental and relates only to the description of the property, the pre-emptor is always allowed to amend his claim. It is under this latter part of the rule stated by Chevis, J. that the case of the present pre-emptor falls. This is evident from the observation made by the learned Additional District Judge while permitting the amendment. He has recorded the finding that it was a case of mis-discreption of property and it was because of bona fide mistake that one of the kothas was not mentioned in the plaint. This conclusion is amply supported by the fact that the description of the property given in the plaint is the same as in the opening part of the sale-deed wherein it is stated that the land sold alongwith all the ancillary rights contains four kothas kham and one kotha pucca. It is only in the closing portion of the sate deed that the error in the description of the property as given in the opening part of the sale deed appears to have been corrected by stating "At the spot there are six kothas, and they have been sold." The plea put forward on behalf of the pre-emptor that she had been misled by the description of the property is given in the opening part of the sale deed is thus not without force, and the learned Additional District Judge was perfectly justified in accepting the same. In quite a number of cases the amendment to correct the description of the property even in a pre-emption suit has been allowed and this power has been exercised notwithstanding the fact that the period of limitation prescribed for the suit had long run out. In Jalal Din and others v. Qaim Din 62 P. R. 1914, it was held that in case of inadvertence and mis-description claimed in a pre-emption suit, amendment of the plaint can be allowed, though not in a case where the omission to include a part of the property is intentional. In dealing with this matter, Johnston J., with whom Shadi Lal, J. (as he then was) concurred, said :

The Allahabad ruling is met by the contention that there the defect in the original plaint was the omission of a minute fractional share in describing the share of the land sued for, while here the part omitted was distinct property different in kind from that included in the original prayer. This distinction certainly exists; but in our opinion this distinction is immaterial, the real test being, in our opinion, whether the omission was intentional or merely inadvertent. Nor do we think that the mere fact that on the plaint as originally framed Court-fee was paid only on the land mentioned in it is proof that plaintiff did not, in reality, want the whole bargain.

This authority has been followed in this Court by Shamsher Bahadur J. in Sodhi Singh and others v. Basant Singh (1962) 64 P. L R. 633, and it was held that when in a suit for pre-emption of the total area of land sold the plaintiff inadvertently omitted to mention one Khasra number, the Court was justified in allowing the amendment of the plaint by inclusion of the Khasra number, which was only a detailed description of the property sold. The ratio of this case fully applies to the case in hand as the plaintiff had at the very outset made it clear that what was sought to be pre empted was the entire land measuring 307 Kanals 6 Marias alongwith all rights therein and ancillary property. Recently, P. C. Pandit J. in Deep Chand v. Bahadur Chand (1968) 70 P. L. R. 416, permitted amendment of the plaint in a pre-emption suit to correct the areas of some of the Khasra numbers. The question of allowing amendment in such case has been dealt with at considerable length in Suhe Ram v. Ram Dia and others C. R. 457 of 1957 (C.R. 457 of 1957, decided on 10th September, 1959, by Mehar Singh J. (as he then was). After referring to the various authorities, including the decision of their Lordships of the Supreme Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., and Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, , the learned Judge summed up the legal position in these words:

Now, it is no doubt true that the learned trial Judge obviously refers to the observations of their Lordships. But he apparently has ignored one aspect of the case and that is that where the facts of the case establish that the in ention of the plaintiff in a pre emption suit is to pre-empt the whole of the bargain and there is only unintentional and inadvertent omission to refer to part of the property sold in the plaint, then it follows that the relief claimed by the plaintiff in the beginning is pre-empting the whole of the sale and the amendment will not alter the quality and the quantity of the relief claimed by him. It is this that was the basis of the decision of the learned Judges in 62 P. R. 1914. And I consider that the learned trial Judge has thus not correctly applied the principle underlying the rules on the basis of which amendment should be allowed in a suit like the present. He has, therefore, been in error in the application of the law to the present case. It he had properly understood what was the question to be decided by him on the principles approved by their Lordships in the cases cited above and as has been explained by the learned Judges in 62 P. R. 1914, it would have been clear to him at once that the real question for decision in the amendment application of the plaintiff was whether or not the omission of a part of the property sold in the plaint was unintentional and inadvertent as alleged by the plaintiff and in the plaint what the plaintiff intended was to seek to pre-empt the whole of the bargain? This question is obviously a question of fact.

The correctness of the legal position stated above with regard to the power to allow amendment of a plaint cannot be doubted. The general rule, as recently stated in A.K. Gupta and Sons Vs. Damodar Valley Corporation, is that a party is not allowed to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. The cause of action in the present case is the sale and it remains the same after the amendment that has been allowed by the learned Additional District Judge. By amending the plaint, the plaintiff has merely corrected an inadvertent mistake in the description of the property, to which the sale related, and has not introduced any fresh claim or a new case. I thus, find that the amendment was rightly allowed by the Additional District Judge and the plea of partial preemption must, accordingly, fail.

The only other matter which requires to be considered is the extent to which the plaintiff is entitled to decree on the basis of her pre-emptive right. As has been noticed earlier, the sale was made by four sons of Bhag Singh and his widow Shrimati Khem Kaur. The sale deed itself recites that in this property Shrimati Khem Kaur holds one-third share, the rest being held by her four sons. Shrimati Harbhajan Kaur has claimed superior right of pre-emption on the plea that she is the daughter of one of the vendors, namely, Arjan Singh. A Full Bench of this Court in Moti Rom and others v. Bakhwant Singh and others (1967) 69 P. L. R. 1041, while interpreting section 15 of the Punjab Pre-emption Act under which the pre-emptor before me claims, has held that a pre emptor cannot claim the entire property sold on the basis of relationship when it is found that he is not related to one or more of the vendors. Under clause (c) of sub-section (1) of section 15, on which Shrimati Harbhajan Kaur bases her right to pre-empt the property, no right of pre-emption is bestowed upon a niece or a grand-daughter. Shrimati Harbhajan Kaur, no doubt, is the daughter of Arjan Singh vendor, but she is the niece of the other three male-vendors, namely, Surjan Singh, Amar Singh and Gurmej Singh, and grand-daughter of Shrimati Khem Kaur. According to the rule laid down by the Full Bench, she is thus entitled to pre-empt only that share in the suit property which belongs to her father. According to the sale deed, all the four brothers including her father had only 2/3rd share in the entire property sold. The property being jointly held by them, her father''s share comes only to one-sixth.

At this stage, the appellant''s learned counsel, Mr. Tirath Singh, has pointed out that out of an area of 307 Kanals 6 Marias of land, which is referred to in the opening part of the sale deed, 8 Kanals had been previously sold by the plaintiff''s father Arjan Singh, himself out of his share to respondents Surjan Singh Amar Singh and Gurmej Singh, as specifically stated in the sale-deed itself. Arjan Singh had one sixth share in the entire land measuring 307 Kanals 6 Marias, which comes to 51 Kanals 4 Marias. As he had a previously alienated 8 Kanals out of his share at the time of the pre-empted sale, he was entitled only to 43 Kanals 4 Marias in the rest of the property, and it is only to this extent that the plaintiff''s claims for pre-emption succeeds. Thus, in fact, the pre-empted sale related to 299 Kanals 6 Marlas of land alongwith kothas etc., and not to 307 Kanals 6 Marias, and it is only to the extent of 43 Kanals 4 Marias of land that his daughter Shrimati Harbhajan Kaur is entitled to a decree. In view of the finding that the consideration for the sale was Rs. 38605/- and the vendees had incurred Rs. 4839.75 P. as expenses, to which they have been entitled if the entire sale was open to pre-emption, the plaintiff must pay Rs. 6227/-, being the amount proportionate to the area of the property to which her right of pre-emption has been found to exist. Accordingly, the decree under appeal is modified and the plaintiff''s suits decreed to the extent of 43 Kanals 4 Marias on payment of Rs. 6227/-. If the amount has not already been deposited, it shall be paid within 30 days. In case the plaintiff fails to deposit this amount within the time specified above, her suit shall stand dismissed. In view of the divided success of the parties and the peculiar circumstances of the case, they are left to bear their own costs.