Dhara Singh vs Ramjit Lal

V.K. Bali, J. (Oral)

Plaintiffpreemptor lost his cause before brother''s Courts as even though he was a cosharer but being brother of vendor he was denied the relief asked for by him in view of judgment passed by the Supreme Court in Atam Parkash v. State of Haryana and others, 1986(2) Supreme Court Cases page 249 : 1987 RRR 116 (SC) and Jagdish and others v. Nathi Mal Kejriwal and others,'''' 1987 RRR 65 (SC) : 1987 PLJ 14. In a later decision, however, recorded in ``Bhikha Ram v. Ram Sarup and others,'''' 1991(2) RRR 532 (SC) : 1991 PLJ 721 the matter was reconsidered by the Supreme Court and it was held thus :

``Read in the context, it becomes clear that the legislature desired to confer the right of preemption on specified family members of the vendor or vendors in the first three clauses of Section 15(1)(b) and with a view to covering all the remaining cosharers not specifically mentioned in the preceding clauses it used the expression `other cosharers'' in the fourth clause which was meant to serve as a residuary clause to ensure that no co sharer is left out. Since this Court found certain intrinsic contradictions in the list of relatives covered by the first three clauses, it saw, no justification for the classification contained in the said provision conferring a right based on consanguinity and, therefore, struck down those clauses as discriminatory and violative of Articles 14 and 15 of the Constitution. At the same time it upheld the right conferred on cosharers for reasons stated earlier. Thus the purport of Atam Parkash''s case (supra) was that while cosharers were entitled to preempt, the conferment of that right on certain kinsfolk based on the rule of consanguinity being a relic of the feudal past could not be tolerated. This Court never intended to exclude any specified coowners from the scope of clause Fourthly of Section 15(1)(b) of the Act. Once conferment of the right of preemption in favour of co sharers was considered to be a reasonable restriction on the right to hold, acquire and dispose of property under Article 19(1)(f), the same restriction was held to be valid when tested on the touchstone of Articles 14 and 15 of the Constitution. We find it difficult to hold that the purport of this Court''s decision in Atam Parkash''s case was to deny the right of preemption 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 cosharers. The expression `other cosharers'' was used in the Fourth clauses of the said provision to ensure that no cosharer 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 kins folk 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 cosharers. The use of the expression `other'' in clause Fourthly conveys the possibility of their being cosharers also. What this Court disapproved as offensive to Articles 14 and 15 is the classification based on consanguinity and not on coownership. The right of preemption to cosharers is held to be intra vires the Constitution. Therefore, it is difficult to hold that this Court intended to deny the right of preemption of those kinsfolk even if they happened to be cosharers. 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 cosharer is rendered redundant. We, therefore, do not approve the ratio of Jagdish''s case and overrule the same.''''

The extracted paragraph would demonstrate that the decisions on which the trial Court and the "Appellate Court based their decisions and in particular Jagdish''s case (supra) have not been approved and in fact that the ratio in Jagdish''s case (supra) has been overruled.

The learned counsel appearing for the respondentvendee, however, contends that when the case was decided by the Courts below, decisions of Supreme Court in Atma Parkash and Jagdish (supra) held the field and subsequent change in law cannot result in allowing the present appeal as the law then holding the field was applied by the Courts below. There is no substance whatsoever in this contention as appeal is continuation of suit.

For the reasons recorded above, this appeal is allowed. Judgment and decree passed by the trial Court and so confirmed by the Appellant Court are set aside. The suit of plaintiff is decreed on payment of Rs. 83,000/ plus registration changes and other expenses that might have been incurred in getting the sale deed registered. The suit shall, however, stand decreed subject to payment of amount aforesaid within two months failing which the suit shall stand dismissed. Parties are, however, left to bear their own costs.