Gobind Ram vs Rikhi Ram and Others

Chet Ram Thakur, J.—In this second appeal by the Plaintiff the main question that arises is whether the Plaintiff who is a tenant has got a superior right of pre-emption when the sale is of a share of a joint property by several co-sharers including a female, who has succeeded to the property through her son.

The facts of the case giving rise to this second appeal may briefly be mentioned as.

The suit land was 1/3rd share of the entire land measuring 73 kanals and 1 marla situate in village Oyc. Sarvshri Chuhru Ram, 15eli Ram, Naulu Ram, Lachhi Ram, Pohlo Ram and Smt. Mahanti sold their 1/3rd share in favour of Rikhi Ram and others for a sum of Rs. 2,000 vide a registered sale-deed, dated 26th March, 1965. The plaintiff alleged himself to be a tenant of the land and he had, therefore, filed a suit for pre-emption. The defendants denied the plaintiff''s right of pre-emption. Further it had also been specifically pleaded in the written statement that one of the vendors was one Mahanti, who was a female and as such the plaintiff could not under law exercise the right of pre-emption in respect of the entire land.

The trial Court found that the plaintiff was a tenant of the suit land. It further held that Smt. Mahanti one of the vendors succeeded to the property through her son, Shri Jaishi Ram. u/s 15(2)(b) of the Punjab Pre-emption Act, a tenant was not conferred the right to pre-empt a sale made by a female vendor. Hence it dismissed the suit qua the 1/6th share of Smt. Mahanti but decreed the suit qua the 5/6th share of other vendors on payment of Rs. 1833.31 paise.

Against this decree for possession of 5/6th share in the suit land the defendant vendees went in appeal to the District Judge. He held that in view of the fact that the share of Smt. Mahanti was not pre-emptible, they had become the co-sharers in the Khata and being the co-sharers they had a superior right than the tenant, who comes in Section 15(1)(b) fifthly of the Act, whereas co-sharers fall in clause fourthly of Section 15(1)(b) of the Act. Hence the plaintiff had no right to pre-empt the sale of a share of the joint property in the presence of the co-sharers and he, therefore, accepted the appeal, reversed the judgment and decree of the trial court and dismissed the suit of the plaintiff.

In this appeal the learned Counsel for the appellant urges that it was nowhere pleaded by the defendants that they had a superior right by virtue of being the co-sharers in the land but this submission of his appears to have been made simply to be rejected. A perusal of para No. 3 of the written statement of the defendants Nos. 1 and 2 would reveal that they had taken up this plea that this land had been sold by several co-sharers out of whom one Smt. Mahanti was a female and under the law the plaintiff had no right of pre-emption. I do not think what more the plaintiff wanted the defendants to plead. Therefore, the argument advanced by the learned Counsel for the appellant that the plaintiff was prejudiced or he was not allowed any opportunity to lead any evidence is not of any substance. Section 15(2)(b) reads as:

15(2)(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 pre-emption shall vest,

First, in the son or daughter of such female; Secondly, in the husband''s brother or husband''s brother''s son of such female.

It clearly shows that in the case of the sale by a female whether she had succeeded to the property through her husband or a son the sale of such a property can be pre-empted only by the persons given in clauses firstly and secondly of Sub-section (2)(b) of Section 15. A tenant in these circumstances has no such a right.

The vendees in view of the sale by the female became the co-sharers in respect of the property. The trial Court also recorded a finding against the plaintiff in this behalf. The plaintiff did not file any appeal against that and the judgment of the trial court had, therefore, become final. As the vendees have become the co-sharers because of having acquired the share of Suit. Mahanti, therefore, they had a right to purchase the other 5/6th share of the other co-sharers in the property and the plaintiff who was a tenant could not exercise that right in the presence of the other co-sharers. The arguments of the learned Counsel for the Appellant that the defendants could not improve his status during the pendency of the suit is also not sound. He argues that in order to defeat the right of the plaintiff pre-emptor, the vendee should be a co-sharcr prior to the sale and he could not improve his title after the sale and he relies on Slier Singh v. Nand Lal AIR 1947 Lah 184 and Rajindra Singh v. Umrao Singh AIR 1925 Lah 223. In the first authority the land sold was the sole property of the vendor in which the pre-emptor had no share whatsoever. On sale of the property the plaintiff filed a suit for pre-emption on the ground that he was a co-sharer in the land sold. The first court dismissed the suit. On an appeal it was decreed in his favour and the defendants went in second appeal where the sole point for consideration was whether the plaintiff had shown himself to be a co-sharer. It was held by the court that the word "co-sharer" signifies persons owning a share or shares in the whole of the property or properties of which another share or other shares were the subject of sale. In other words, the word "co-sharer" denotes a person who holds an existing joint proprietary interest whether absolute or limited in an undivided property. The plaintiff, therefore, was held not to be a co-sharer.

In the second authority it was held that clause "firstly" in Section 16 should apply only to the sale of an undivided share in joint urban immovable property and that ''co-sharer'' should signify persons owning a share or shares in the whole of the property or properties of which another share or other shares were the subjects of sale. A person who is a part owner of a small portion of one of the walls of a house but has no rights of any kind in any other part whatsoever either of the building or of the site is not entitled to call himself a co-sharer in the whole property within the meaning of Section 16 of the Act.

Therefore, in view of these facts both these cases are distinguishable. In the instant case the 1/6th share of Smt. Mahanti being non-pre-emptible, the vendees became co-sharers in the entire joint property including the subject-matter of the suit. Therefore, in these circumstances they were co-sharers in the property which was joint and undivided.

According to Bishan Singh and Others Vs. Khazan Singh and Another, the right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. Hence the plaintiff is bound to show not only that his right is as good as that of the vendee but it is superior to that of the vendee. Thus from this authority it can be clearly inferred that the vendee can improve his status or he can defeat the right of the pre-emptor by alienating the property or improving his status even after the sale. In the instant case before us the vendees became the co-sharers in the other suit property by virtue of the sale of the share by Smt. Mahanti which was non-pre-emptible. Hence they were co-sharers in the entire property and the plaintiff though a tenant did not have any superior right over the vendees who were the co-sharers. In Phul Chand v. Mehta Sunder Das and Ors AIR 1946 Lah 345 it was laid down:

A vendee, in a suit brought to enforce, on the ground of vicinage, a right of pre-emption in respect of one of the properties purchased by him, can successfully resist the suit on the strength of his title to an adjoining property conveyed to him by means of the same sale deed.

The argument of the learned Counsel for the appellant, therefore, that a person must be a co-sharer before the sale which is sought to be pre-empted is not valid. The vendee can successfully resist the suit on the strength of an acquisition made by him simultaneously with the purchase which is the subject-matter of the preemption suit. Therefore, in the present case the vendees have become the co-sharers in the entire joint property on the ground that they had purchased the share of Smt. Mahanti which was non-pre-emptible. Section 21-A of the Pre-emption Act also does not assist the pre-emptor because the vendees did not improve their status after the institution of the suit. They improved the status simultaneously with the sale effected in their favour by the vendors. Therefore, there is no question of improving the status by the vendees after the institution of the suit by the pre-emptor. The vendees could defeat the right of the pre-emptor by all legitimate means as is held in Bishan Singh and Others Vs. Khazan Singh and Another, .

Here it may be observed that by virtue of the purchase of the share of Smt. Mahanti which was non-preemptible the vendees who had taken a transfer from a co-owner had stepped into the shoes of their transferor and they were clothed with all the rights and became subject to all the liabilities of their transferors i.e. they became as much co-owners or co-sharers as the transferor i.e. Smt. Mahanti was before the transfer. In view of these facts it is manifest that the vendees were co-sharers in the entire property by virtue of this purchase from Smt. Mahanti. To the similar effect is Chenganakattil Moideen and Others Vs. Pottengal Kunhalikutti and Others, and Akbar v. Shamma ( AIR 1969 J&K 121).

Thus it becomes all the more clear that the plaintiff had no superior right over the vendees who had become co-sharers in the land by virtue of the acquisition of the non-pre-emptible 1/5th share of Smt. Mahanti in the joint property.

The appeal, therefore, fails and is hereby dismissed with no orders as to costs.