Barkha Ram vs Balvinder Singh and Others

D.S. Tewatia, J.—The short and the only question that falls for consideration in this appeal is as to whether a female of the category mentioned in Sub-section (2) of Section 15 of the Punjab Pre-emption Act, 1913, hereinafter referred to as the Act, who received the land in dispute through a will from a male of the category mentioned in that Sub-section is to be treated to have succeeded to that property in terms of the said provision.

Before examining the legal proposition aforementioned, facts bearing thereon deserve noticing. Smt. Mela Devi, widow of Thakur Dass, had got the property in dispute by a will executed by her said husband. She alienated the same by registered sale-deed to the Defendant-Respondents, hereinafter referred to as the vendees. This sale was pre-empted by the Appellant-tenant, hereinafter referred to as the tenant-pre-emptor. His claim to pre-emption was refuted by the vendees with the plea that the sale in question was pre-emptible only u/s 15(2) of the Act and not u/s 15(1) and that the provisions of Section 15(2) do not envisage a tenant as one of the pre-emptor.

The trial Court held that to the facts of the case in hand the provisions of Section 15(2) of the Act were attracted and, therefore, the tenant had no right to pre-empt the sale. This decision of the trial Court was sustained by the appellate Court and the appeal of the tenant-pre-emptor was dismissed. Hence, the present second appeal at his instance which at the motion stage itself was admitted to a Division Bench by my learned brother Goyal, J. and that is how this case is before us.

It appears the appeal was admitted to Division Bench, as there seemed to be holding the field two seemingly conflicting judgments of coordinate jurisdiction, one delivered by Tek Chand, J. in Mohinder Singh and Ors. v. Balbir Kaur and Anr. 1968 P.L.R. 752, and the other delivered by Dhillon, J. in Mahan Singh and Anr. v. Haryana State and Ors. 1978 P.L.R. 553.

In Mohinder Singh and Ors.'' case, the facts were that a father had executed a will in favour of his five daughters stating that they were to take his property in equal shares after his death. He died in 1949. Gurmit Kaur, one of the five daughters, sold her share of the land. Balbir Kaur, her other sister, filed a suit for possession by pre-emption on the ground that she was a co-sharer and as such could pre-empt the sale u/s 15 of the Act. The question that directly arose in that case was as to whether Gurmit Kaur had succeeded to the property in dispute through her father. The answer to that depended on the determination of the fact as to whether the securing of the given property on the strength of a will would amount to succeeding thereto in terms of the provision of Sub-section (2) of Section 15 of the Act which provision is in the following terms:

15 (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 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 brother 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 preemption 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.

Tek Chand, J. held that Gurmit Kaur vendor succeeded to the property in dispute in terms of Sub-Section 15(2)(a) of the Act. In this regard, his following observations can be noticed with advantage:

The next question is whether in this case it can be said in the language of Section 15(2)(a) of the Act that Gurmit Kaur, vendor, had succeeded to the land through her father. The expression ''succeeded'' means to come next after, as by descent, or to take the place of another as by election or appointment''. Succession has been defined as the act or right of legal or official investment with a predecessor''s office, dignity, position or functions; also the legal or actual order of so succeeding. In its technical sense, it denotes the devolution of title to property under the laws of descent,--vide 83 C.J. S. 769. The term ''descent'' is sometime used synonymously, with ''inheritance'' but ''succession'' is a term of wider dimensions than ''descent'', though frequently succession and descent are used synonymously. Succession may be hereditary, intestate or testamentary. The word ''succession'' excludes those who take by deed, grant, gift or any form of purchase or contract. The term ''succession'' refers to persons who succeed'' deceased persons whether by will or on intestacy. ''Succession'' ''is broadly used to denote the devolution of title to any real estate including disposition by will or by laws or descent. The law in India refers to both intestate and testamentary succession. The Indian Succession Act of 1925 was ''an Act'' to consolidate the law applicable to intestate and testamentary succession" and Part V containing Sections 29 to 56 deals with ''intestate succession'' and Part VI containing Sections 57 to 191 relates to ''testamentary succession''. The Hindu Succession Act of 1956 also refers to intestate succession,--vide Chapter II and testamentary succession,--vide Chapter III. It cannot, therefore, be argued with reason that the word ''succeeded'' in Section 15 of the Act or its cognate expressions are confined to succession on intestacy. In Kahla Singh v. Rajinder Singh (1966) 68 P.L.R. 589 a Division Bench while considering Section 15(2) of the Punjab Pre-emption Act observed that the word ''succeeded'' as used in the Sub-section indicated that the property was such as a female got on the death of relatives mentioned therein. The word clearly conveyed the idea of succession and not of transfers inter-vivos, including gifts. The word ''succession'' in the Indian enactments related to devolution of property on the death of a person. It was further said that ''succession'' referred to those who by, descent or will took the property of a descendant. Reference may also be made to Girdhari Lal Gangrade v. Fateh Chand Gangrade AIR 1955 M.P. 148, Dixit, J. said:

The word ''succession'' in its generic meaning no doubt includes devolution of a person''s property whether by survivorship, devise or inheritance. In its narrow and technical sense, it is confined only to the modes of devolution by device or inheritance.

Stress was laid by the learned Counsel for the Respondent on the use of the word (''through'' occurring in Section 15(2)(a) referring to a female having "succeeded through her father or brother...''. It was urged that daughters under the will of Bagga Singh had succeeded ''to him'' but not ''through him''. It was said that the use of the word ''through'' indicated that the succession was by way of inheritance, but not under the will. It was further said that the use of the word ''through'' indicated next heirs and the daughters in this case Were not the next heirs of Bagga Singh, but the two widows who outlived him. It was urged that Section 15(2), therefore, did not apply whether the daughters had received that property under the will or by gift as in either case, that was in the nature of a transfer. I am not impressed by this argument.

The Supreme Court while considering this section treated the word ''through'' as meaning ''from'' in Gulraj Singh Vs. Mota Singh, , Ayyangar, J. said:

Take, for instance, the case where a female succeeds to property through her father or brother dealt with in Section 15(2)(a) of the Pre-emption Act. Her heir under the Hindu Succession Act would be, if the property was inherited from her father, her son or daughter (including the children of any pre-deceased son or daughter) and in their absence the heirs of the father. If, however, the property was inherited from her brother, the devolution is different,--vide Section 15(1) and (2).

The word ''through'' in this context means ''medium'', ''agency'', ''instrument'', ''by means of, by the action of, ''by the instrumentality of etc. It also means ''on account of, ''owing to'', ''from'' and by reason of. I cannot read the word ''through'' in any other sense. The section would not have applied if the will in this case in favour of Gurmit Kaur and her four sisters had been by Bagga Singh''s father, in the event Bagga Singh had predeceased his father. In that case, the will being of the grandfather the grand-daughters could not be said to have succeeded ''through'' father".

From Mahan Singh and Anr.''s case (supra), the learned Counsel for the Appellant pointed out the observations of the learned Judge in paragraph 6 in support of his contention. These are in the following terms:

As regards the first contention the same is also without any merit. The short question to be considered is whether the Petitioners are entitled to the benefit of the provisions of Section 10-A(b) of the Act or not. The said benefit can only be made available if the land is acquired by the State Government under any law for the time being in force or by an heir by inheritance. Disposition of property by will in no sense can be termed as inheritance. Thus Mahan Singh and Pritpal Singh who became owners of the property in view of the will made by Smt. Parbati cannot be termed as heirs by inheritance. That being the case no fault can be found with the finding of the Collector and the learned Financial Commissioner in this regard.

The provisions of Section 10-A(b) of the Punjab Security of Land Tenures Act, hereinafter referred to as the Tenures Act, which came up for consideration in Mahan Singh and Anr.''s case (supra), are in the following terms:

10-A (b) Notwithstanding anything contained in any other law for the time being in force and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in surplus area, at the commencement of this Act, shall affect the utilization thereof in Clause (a)....

The facts of Mahan Singh and Anr.''s case (supra) were that a mother-in-law willed away her property in favour of her son-in-law and the son-in-law thus sought to take the benefit of the provisions of Section 10-A(b) of the Tenures Act. A perusal of the said provisions would, however, show that a person, inter-alia, who seeks to take the benefit of the said provision should be an heir who should succeed to the property by inheritance. The expression ''heir'' has not been defined in the Tenures Act and, therefore, it must be taken to have been used in the sense in which an ''heir'' has been defined by a statute dealing with succession of the property, in the case of Hindus, obviously the Hindu Succession Act, 1956. In the Hindu Succession Act, the expression ''heir'' has been defined by Section 3(1)(f) as under:

3(1) In this Act, unless the context otherwise require:

* * * * *

(f) ''heir'' means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;

A perusal of the said definition would show that a son-in-law in Mahan Singh and Anr.''s case (supra) could not be considered to be an ''heir'' of his mother-in-law, with the result that he did not satisfy the major requirement of the said provision that he should be an ''heir'' and, secondly, he should have succeeded to the property by inheritance. He was, therefore, not entitled to take benefit of the provisions of the Tenures Act. The expression ''inheritance'' in the said provision has been used in the restricted sense of ''succeeding to someone''s property as an heir''. Disposition by will, therefore, in that case in favour of son-in-law could not confer upon them the Status of an ''heir''.

In view of the above, the ratio of Mahan Singh and another''s case (supra) is not attracted to the facts of the present case.

A Division Bench of this Court in Kahla Singh and Ors. v. Rajinder Singh and Ors. (supra) had to construe the amplitude of the expression ''succeeded'' appearing in Sub-section (2) of Section 15 of the Act while examining in a pre-emption suit the contention that the female vendor who had got the property in dispute by gift from her father should be treated as having succeeded thereto through her father and, therefore, pre-emption suit launched by her two sisters claiming right of pre-emption on the ground that they were her co-sharers must fail, because it was the provisions of Sub-section (2) of Section 15 of the Act that were applicable and not those of Sub-section (1) of Section 15. Khanna, J. (as he then was), who delivered the opinion for the Bench, while repelling the contention, had the following to say:

According to Mr. Anand Sarup, as the female vendors got their share in the property in dispute by gift from their father, brother or husband ft should be held that the property was such to which the female vendors succeeded through their father, brother or husband, as the case may be and, therefore, qua the share of the female vendors, the Plaintiffs have no superior right of pre-emption. In our opinion, the above contention is not well-founded. The word ''succeeded'', as used in the above Sub-section, indicates that the property is such as a female gets on the death of relatives mentioned therein. The word clearly conveys the idea of succession and not transfers inter-vivos including gifts. As observed on page 1230 of the Law Lexicon by Aiyar, 1940 Edition:

The word ''succession'' is a word of technical meaning, and refers to those who by descent or will take the property of a descendant. It is a word which clearly excludes those who take by deed, grant, or any form of purchase or contract''.

The word ''succession'' has a definite connotation in the context of Indian enactments and has been taken to devolution of property on the death of a person. Reference in this connection may be made to Indian Succession Act and Hindu Succession Act, both of which enactments deal with devolution of property after the death of last holder. As against that, the subject of gifts and other inter-vivos transfers like sales and mortgages are dealt with in the Transfer of Property Act. There can, therefore, be no hesitation to reject the contention that succession would include transfer by gift. We, accordingly, hold that where a female gets property by gift from her father, brother or husband, it cannot be said that the property is of a kind to which the female has succeeded through her father, brother or husband as the case may be. Sub-section (2) of Section 15 of the Punjab Pre-emption Act, in the circumstances, would not get attracted to the sale in dispute.

A perusal of the aforesaid observations would show that the Division Bench approved the definition of the word ''succession'' occurring at page 1230 of the Law of Lexicon by Aiyar, 1940, Edition, which included ''succession by descent or will'' and further observed that the said connotation of the word ''succession'' had to be taken to relate to the devolution of a property on the death of a person and that Indian Succession Act and Hindu Succession Act too were, inter'' alia, intended to deal with the devolution of property after the death of last folder, whereas gifts and other inter-vivos transfers like sales and mortgages are dealt with in the Transfer of Property Act.

We entirely concur in the view that Tek Chand, J. in Mohinder Singh and Ors.'' case (supra) and Khanna, J. in Kahla Singh and Ors.'' case (supra) has taken of the word ''succeeded'' occurring in Sub-section (2) of Section 15 of the Act.

In view of the above, we find no merit in this appeal and the same is hereby dismissed, but with no order as to costs.