Kahla Singh and Others vs Rajinder Singh and Others

H.R. Khanna, J.—Where a gift is made of property in favour of a female by her father, brother or husband, can it be said to be property to which the female has succeeded through her father, brother or husband as the case may be under Sub-section (2) of Section 115 of the Punjab Pre-emption Act (No. 1 of 1913)(as amended by Act 10 of 1960), is the question which arises for determination in this Letters Patent Appeal filed by Kahla Singh and 11 other Defendant-vendees against the judgment and decree of learned Single Judge whereby he dismissed the regular second appeal of Defendant-vendees against the decision of the District Judge. Patiala modifying that of the trial Court.

The brief facts of the case are that Bhagwan Singh and 15 others, who are related to each other and some of whom are females, sold land in dispute measuring 1,160 Bighas situated in village Galoli in District Patiala, in favour of Dayal Singh and 13 others as per registered sale-deed, dated 13th May, 1959, for an ostensible consideration of Rs. 1,16,000. Rajinder Singh and his two daughters. Surinder Kaur and Shavinder Kaur, brought suit for possession of the land in dispute by pre-emption on the allegation that they were co-sharers in the property in dispute. There was some controversy about the price paid. The trial Court decreed the suit on payment of Rs 99.557. On appeal the learned District Judge enhanced the amount, on payment of which the Plaintiffs were to get possession of the property, from Rs. 99.557 to Rs. 1,03,040 On second appeal the amount on payment of which the suit had been ordered to be decreed, was not challenged. Submission was, however, made that the sale in so far as it related to the share of female vendors was covered by Sub-section (2) of Section 15 of the Punjab Pre-emption Act and as the Plaintiffs were merely co-sharers and not the heirs mentioned in Sub-section (2) of Section 15, the sale to the extent of the share of female vendors was not pre-emptable. The above submission did not find favour with the learned Single Judge. He, accordingly, dismissed the appeal filed by the vendees.

In Letters Patent Appeal Mr. Anand Sarup on behalf of the Appellants has argued, as he did before the learned Single Judge, that the sale, in so far as it related to the share of female vendors in the property in dispute, is covered by Sub-section (2) of Section 15 of the Punjab Pre-emption Act which reads as under:

(2) Notwithstanding anything contained in Sub-section (1),--

(a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest,--

(i)if the sale is by such female, in her brother or brother''s sons;

(ii) if the sale is by the son or daughter of such female, in the mother''s brothers or the mother''s brother''s sons of the vendor or vendors;

(b) where the sale is by a female of land or property to which she had 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.

According to Mr. Anand Sarup, as the female vendors got their share in the property in dispute by gift from their father, brother or husband it should be held that the property was such to which the female vendors succeeded through their father, brother or husband PS the case may be and therefore, ova the share of the female vendors, the Plaintiffs have no superior right of pre-emption. In our opinion the above contention is not well-founded. The word "succeeded" as used in the above sub-section, indicates that the property is such as a female frets on the death of relatives mentioned therein. The word clearly conveys the idea of succession and not of transfers inter vivos including gifts. As observed on page 1230 of the Law Lexicon by Aiyar, 1940 Edition.--

The word ''succession'' is a word of technical meaning and refers to those who by descent or will take the property of a ascendent. It is a word which clearly excludes those who take by deed, grant, gift, or any form of purchase or contract.

The word "succession" has a definite connotation in the context of Indian enactments and has been taken to relate to devolution of property on the death of a person. Reference in this connection may be made to Indian Succession Act and Hindu Succession Act both of which enactments deal with devolution of property after the death of last holder. As against that, the subject, of gifts and other inter vivos transfers like sales and mortgages are dealt within the Transfer of Property Act. There can, therefore, be no hesitation to reject the contention that succession would include transfer by gift. We, accordingly, hold that where a female gets property by gift from her father, brother or husband, it cannot be said that the property is of a kind to which the female has succeeded through her father, brother or husband as the case may be. Sub-section (2) of Section 15 of the Punjab Pre-emption Act, in the circumstances, would not get attracted to the sale in dispute.

The appeal, consequently, fails and is dismissed, but without costs.

D. Falshaw, C.J.

I agree.