Bhagat Ram and Another vs Hazara Ram

D.B. Lal, J.—This second appeal is directed against the judgment of the District Judge, Kangra in a suit for pre-emption which was decreed by the trial Judge as well as by the first appellate Judge. The Respondent Hazara Ram filed the suit and claimed title of pre-emption on the basis that he was co-sharer with the vendor Daya Wanti. Bhagat Ram is the vendee and is the present Appellant. Besides other pleas it was also contended by Hazara Ram that the sale consideration was fictitious. In reply to the suit it was stated that Daya Wanti succeded to the property through her husband. As such the claim for pre-emption was covered u/s 15(2)(b) of the Punjab Pre-emption Act (1 of 1913) and as such the Plaintiff Hazara Ram although a co-sharer could not pre-empt. It was also pleaded that the suit was time barred.

The trial Judge decreed the suit and thereafter the first appeal was filed which too was dismissed. At that stage a second appeal was preferred in the High Court and the case was remitted to the trial Judge and fresh opportunity was given to the parties to adduce evidence. When the case went back to the trial Judge, an amendment application was made which was allowed and the vires of the Section 15(2) as amended by the Punjab Pre-emption Act, 1960 were questioned. However, the amendment was allowed and after considering the fresh evidence adduced by the parties the suit was again decreed. Thereafter the first appeal was preferred before the District Judge, Kangra and that too has failed. The present is the second appeal from that judgment of the learned District Judge.

The sole point canvassed before the learned District Judge was as to whether Section 15(1) or Section 15(2) of the Act applied and as to whether Daya Wanti could be stated to have succeeded through her husband within the meaning of Section 15(2)(b). If it could be stated that she succeeded to the absolute estate through her husband the case would naturally fall u/s 15(2)(b) and Hazara Ram although a co-sharer will not be entitled to pre-empt the sale. However, if the case of Hazara Ram falls u/s 15(1) he would get the right of pre-emption. That was the sole question agitated before the learned District Judge and so has been done in the second appeal.

In view of the decision Jai Singh v. Mughla and Ors. 1967 PLR 475, it was held by a Division Bench 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 therefore the sale of such absolute estate by her after the coming into force of the Succession Act, is pre-emptible under Sub-section (1) and not under Sub-section (2) of Section 15 of the Act. In view of this authority which must be followed and could not be distinguished in any manner, Daya Wanti cannot be stated to have succeeded to the absolute estate through here husband. It is admitted case that she acquired absolute estate by virtue of Section 14(1) of the Hindu Successtion Act. As such the case fell u/s 15(1) and Hazara Ram being a co-sharer was entitled to pre-empt.

With this finding the appeal is prima facie without any merit. As such the judgment of the learned District Judge cannot be assailed on any such ground. Regarding the other grounds the same were given up before the learned District Judge.

The appeal is dismissed with costs.