Gian Chand etc. vs Rozi Ram and Smt. Lachhmi

D.B. Lal, J.—These two regular second appeals can be disposed of by the same judgment as a common question of law and fact arises in them. Rozi Ram tenant filed two suits in the Court of Subordinate Judge 1st . Class, Dharamsala, for pre-emption. It was contended that Rozi Ram was tenant under Smt. Lachhmi widow of one Moti Ram. On 20-7-1965 Smt. Lachhmi executed two sale deeds of two different parcels of land in favour of Gian Chand and others. The first sale deed related to 3 kanals 6 marlas and the ostensible consideration was Rs. 500/-. The other sale deed related to 5 kanals 7 marlas and the ostensible consideration was Rs. 2500/-. Rozi Ram pleaded that he was tenant in the two parcels of land under Smt. Lachhmi and as such had a preferential right to pre-empt against Gian Chand and others in view of FOURTHLY of Sub-section 1 (a) of Section 15 of the Punjab Preemption Act, 1913. It was also pleaded that the true consideration was Rs. 90/- and Rs. 500/- respectively for the two sale deeds. Rozi Ram was willing to repurchase the two parcels of land at the specified sale consideration.

Gian Chand and others contended that Smt. Lachhmi succeeded over land through her husband within the maning of Section 15(2) and as such the tenant Rozi Ram had no preferential right to pre-empt as against them. It was also pleaded that Smt. Lachhmi succeeded to the property as widow of deceased Moti Ram. The notification No. 4669 of March 6, 1917, further deprived the tenants of their right of Preemption under sub-clause FOURTHLY of Clause (a) of Section 15. As such according to them the Plaintiff Rozi Ram had no right to pre-empt. Besides that it was also pleaded that the ostensible sale consideration was real one and the two sale deeds if at all pre-emptible could only be done after payment of that amount specified in each sale deed.

The Subordinate Judge 1st Class, Dharamsala, repelled the contentions of the Defendants and decreed the two suits. The Defendants came in first appeal before the learned Additional District Judge, Dharamsala, but did not succeed. The first appeals were dismissed. Now they have appeared in this Court in second appeals.

It is contended by the learned Counsel for the Appellants that Smt. Lachhmi succeeded to the land through her husband within the meaning of Sub-section (2)(1)(6) of Section 15 which in fact does not appear to be so. In Jai Singh v. Mughla and Ors. 1967 P.L.R. 475 a Division Bench of Punjab and Haryana High Court considered a similar situation and held 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 Punjab Preemption 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. This Division Bench decision of Punjab and Haryana High Court was followed in Kirpa Ram and Ors. v. Harnam Singh and Anr. 1968 P.L.R. 809 by a learned single Judge of that Court. I am in respectful agreement with this decision of the Punjab and Haryana High Court. Smt. Lachhmi cannot be statd to have succeeded through her husband because with the advent of Section 14(1) of the Hindu Succession Act, she became absolute owner and the lesser estate inherited by her from her husband merged into the absolue estate. She cannot be held to have succeeded to that absolute estate through her husband but rather she succeeded to that estate by virtue of a statute. Thus tenants specified in Sub-section (1) of Section 15 of the Act can very well pre-empt the two sales made by her. 5. It is then contended that the notification of 1917 deprived the tenants from claiming a right of pre-emption. There is a decision of a Division Bench of Delhi High Court (Himachal Bench) in Kanshi Ram and Anr. v. Inder Singh (L.P.A. No. 19 of 1968-decided on June 10, 1969) which indicates that a tenant specified in Section 15(1)(a) FOURTHLY is entitled to pre-empt and is not deprived of that right by virtue of the notification issued in March, 1917. This was so held because the said notification deprived only tenants having rights of occupancy from claiming pre-emption. The occupancy tenants ceased to exist in Kangra district as a result to Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (Act No. 8 of 1953). When the occupancy tenants ceased to exist in the district of Kangra, the notification of 1917 will have its no effect and the amended Section 15(1) of the Punjab Preemption Act, 1913 by the amendment Act No. 10 of 1960 does not talk of occupancy tenants but talks of tenants in general who hold land under tenancy of the vendors. Therefore, in view of the decision Kanshi Ram and Anr. (supra) the Plaintiff-tenant was not deprived of his right of pre emption u/s 15(1) of the Act.

In Kaulu Ram v. Madho Ram R.S.A. No. 169 of 1967 and Behari Lal v. Lehnu Ram R.S.A. No. 108 of 1967 (I.L.R. 1972 HS 63) a Division Bench of this Court, however, held that the notification of 1917 is not impliedly repealed by the re- enacted Section 15 of the Punjab Preemption Act, 1913. That may be so but as I have stated, the re-enacted Section 15(1) talks of only tenants and occupancy tenants in Kangra district could not have been contemplated for the simple reason that the said category of tenants have ceased to exist. Therefore, the decision ILR (Himachal Series) 1972, page 63, will not stand in the way of the Plaintiff.

It is abundantly clear that Exs. P.I., P. 2 and P. 3 which are the revenue entries amply proved Rozi Ram to be the tenant of this land under Smt. Lachhmi. To that extent the finding of the two Courts below cannot be assailed. It is also a finding of fact which has to be accepted in second appeal. The learned District Judge casually mentiond about a will executed by Moti Ram and the appointment of one or two trustees who were managing the lands on behalf of Smt. Lachhmi who survived as a young widow. Neither in the plaint nor in the written statement the will was pleaded nor any appointment of trustee was mentioned. What is not to be found in the pleadings can not be the subject matter of any subsequent evidence to be adduced. The Plaintiff clearly indicated that Smt. Lachhmi was the absolute owner and did not succeed over the land through her husband. The Defendant retorted that she succeeded as widow of the deceased Moti Ram and the right of Preemption was hit by the notification of 1917. Thus neither of the party pleaded either in favour of or against the will and the learned District Judge should not have permitted the parties to raise that plea. According to the learned District Judge, the plea was sustained because the Defendants wanted to say that the Plaintiff was not tenant of Smt. Lachhmi but was a tenant of the trustees. The finding of the learned District Judge is that trustees were acting on behalf of Smt. Lachhmi and, therefore, the Plaintiff was tenant of Smt. Lachhmi and of no other person. As I have stated before, on plea could be raised regarding will as the same was not pleaded. If evidence was recorded the same was not permissible. That apart the question regarding tenancy has been set at rest by the two decisions below. A question of fact cannot be re-opened in second appeal,

The learned Counsel for the Appellant, however, submitted that the defandant no doubt pleaded that Smt. Lachhmi succeeded as widow of the deceased Moti Ram but that was an admission on a question of law. He attempted to raise the plea that she did not succeed as widow but perhaps as beneficiary under a will. No such plea can be permitted at this late stage. There is a clear pleading in the written statement that she succeeded as limited owner from her deceased husband Moti Ram . After the coming into force of the Hindu Succession Act, she became the full owner and no longer could be deemed to have succeeded to the estate through her husband. Rather she derived absolute title u/s 14(1) of the Hindu Succession Act.

In this view of the matter the findings of the two Courts below cannot be set at naught. The two appeals are, therefore, dismissed with costs.

This decision is being given in R.S.A. No. 88 of 1969 and shall form part of the decision in R.S.A. No. 89 of 1969. A copy of the judgment shall be kept on the record of the second appeal.