Gurbachan Singh and Others vs Mohinder Singh

Dua, J.—This appeal was directed by the learned Single Judge admitting it at the motion stage to be heard by a Division Bench because the point involved was considered likely to arise frequently. It is for this reason that it has been placed before us for disposal. The point raised has also since been decided by a Division Bench of this Court in Jang Singh v. Hardayal Singh (1962) 64 P.L.R. 1152: I.L.R.(1983)P&H 97: 1962 Ct. L.J. 512. The point involved is short but it is desirable to state the facts giving rise to the present litigation.

Hardial Singh alias Dial Singh, Tara Singh and Charan Singh sold their agricultural land along with the shamilat and other rights in May, 1958 to the five Defendants Gurbachan Singh, Bawa Singh, Darshan Singh, Hari Singh and Lakha Singh sons of Bela Singh for an ostensible sale consideration of Rs. 3000/-. Mohinder Singh son of Dial Singh vendor instituted the suit out of which this appeal has arisen to pre-empt the said sale. According to him the sale consideration actually paid was Rs. 1,900/- only which also represents the market price of the suit land. The amount over and above Rs. 1,900/- is stated to be ficti-tious.

This suit was resisted by the vendees and the trial Court holding the sale to be indivisible and Hari Singh Defendant having been proved to be a tenant of a major portion of the suit land held the sale transaction in its entirety to be exempt from pre-emption by virtue of Section 17-A of he Punjab Security of Land Tenures Act No. 10 of 1953 (hereinafter called the Act). The suit was on this ground dismissed.

On appeal the learned Additional District- Judge, however, took a different view and holding Section 17-A of the Act to have been inten-ded to protect the sale of land comprising the tenancy of Hari Singh to him reversed the decision of the Court of first instance and decreed the pre-emptor''s suit in respect of the land sold except one-fifth of 32 kanals and 7 marlas which had been found to be with Hari Singh on lease. The one-fifth share was arrived at because the five vendees were stated to have purchased the land in equal shares. It was, however, made clear that the pre-emptor could not claim any corresponding reduction in the sale price and that he was bound to pay full sale price before be could succeed in claiming pre-emption of any part of the land sold. The parties were directed to bear their own costs throughout.

On second appeal Shri Shamair Chand, the learned Counsel for the Appellants, has contended that Section 17-A of the Act protects sale of land comprising the tenancy of a tenant made to him by the landowner and that, therefore, the sale in question must be held not to be pre-emptible under the Punjab Pre-emption Act, 1913 and that the Court below has erred in law in decreeing the present suit. In the alternative he has contended that in any case the entire area of 32 kanals and 7 marlas should have been held to be exempt from the claim of pre-emption under the Punjab Pre-emption Act, this being the area admittedly comprising the lenancy of Hari Singh.

The matter, as already stated, is not res integra and has been the subject of judicial determination by a Division Bench of this Court in Jang Singh''s case (1962) 64 P.L.R. 1152 : I.L.R.(1983)P&H 97: 1962 Ct. L.J. 512 mentioned above. Though there the provision of law which came up for consideration is Section 8-A of the Pepsu Tenancy and Agricultural Lands Act, 1955 (Pepsu Act No. 13 of 1955) the language of that section appears to be in identical terms with that of Section 17-A of the Act, so far as relevant for our purposes. 1 he Bench held that it is the tenant who is protected and not the sale as such and consequently the interest of a tenant in the land sold has to be determined whenever there is a sale by the owner in favour of the tenant along with others.

Shri Shamair -Chand has, however, submitted that this decision requires reconsideration. To begin with he has referred us to a Bench decision of the Lahore High Court in AIR 1928 784 (Lahore) where Shadi Lal C.J. speaking for the Bench while considering the effect of the sale-deed there observed:

The deed specifies only the area sold to each of the vendees, but makes no mention of the price to be paid by him. There can be no doubt that all these plots were not of the same quality and it cannot, therefore, be said that the price to be paid by each of the vendees was a matter of mere calculation and must be deemed to be proportionate to the area to be taken by him. In these circumstances the transaction must be held to be an indivisible one, and the proprietors having associated strangers with them in the purchase cannot defeat the rights of the Plaintiffs.

It may be mentioned that in the reported case the argument raised on behalf of vendees was that the sale sought to be pre-empted was a divisible transaction and should be construed to embody 96 sales in favour of 90 vendees and as some of the vendees were themselves proprietors in the villages, they were entitled to defeat the suits tor preemption in so far as the areas sold to them were concerned, and that they should not be held to be affected by the rule which lays down that a pre-emptor by associating with himself a stranger in the purchase reduces himself to the status of that stranger and loses his preferential right to purchase the property. It was this contention which was repelled by the learned Chief Justice. In my view, the observations taken in their context do not advance the Appellant''s case. In fairness to the leaned counsel, however, I must state that according to him this rule, which was relied upon by the counsel for the vendees in the reported case, namely, that a pre-emptor by associating with himself a stranger in the purchase reduces himself to the status of his co-vendees and thereby loses his preferential right to purchase the property cannot and should not be incorporated into the consideration of Section 17-A of the Act. The learned Counsel only wanted to seek support from this decision for the proposition that in the present case also the sale should be considered to be an indivisible one and, therefore, within the exemption created by Section 17-A which protects the sale as such. I cannot agree with the counsel, for in my view, it is a question of fact in each case whether a transaction is indivisible or not and the reported case as an illustration is of little assistance. The next decision cited at the bar is AIR 1934 429 (Lahore) , in which Tek Chand, J. observed that "where a sale is in favour of two vendees, who are to take the property in equal shares but the sale is a single and indivisible transaction, and a suit for preemption in respect of it is dismissed and one of the vendees dies pending the appeal but his legal representative is not brought on record within the prescribed time and the appeal abates as against him, the plaintifi''s suit must be dismissed as a whole, even though he has prayed in the appeal for possession of whole property on payment of full price and impleaded both the vendees in the appeal." This dictum is based on the proposition that a pre-emption suit must embrace the entire property sold and a suit (or partial pre-emption is not competent under the general law of pre-emption. This decision would perhaps be inapplicable to our case on the argument of the learned Counsel for the Appellant himself that the various rules applicable to the law of pre-emption generally cannot and should not be held to be attracted to the case covered by Section 17-A of the Act: Lastly, we have been referred to Ghulam Qadir v. Ditta AIR 1945 184: (1954)47 P.L.R. 724 (F.B.), a Full Bench decision, and particular reliance has been placed on the following passage at page 186:

Specifications of shares in such a case should not make such a contract of sale to be divisible or to consist of a number of transactions embodied in a single document. The position might have been materially different if the price of all the specified shares had also been separately fixed and the vendor would have been bound to recover the price mentioned for each share from each vendee separately.

There can be no dispute that the above dicta which so far as it goes seems to be unexceptionable, but the question is as to how far it can be held to effect the decision of this Court in Jang Singh''s case (1962) 64 P.L.R. 1152: I.L.R.(1983)P&H 97: 1962 Ct. L.J. 512. In my opinion, the ratio of the decision in Jang Singh''s case (1962) 64 P.L.R. 1152: I.L.R.(1983)P&H 97: 1962 Ct. L.J. 512 directly controls the present controversy and the observations in Ghulum Qadir''s case AIR 1945 184: (1954)47 P.L.R. 724 (F.B.) reproduced above do not touch the statutory provision dealt with in the former which bears a close resemblance to the case in hand. As at present advised, therefore, I am not persuaded by the Appellants'' learned Counsel to entertain any serious doubt about its correctness.

Following the decision mentioned above, we dismiss this appeal but without costs.

Grover, J.

I agree.