Kandhir Singh and another vs Balbir Singh and others

A.D. Koshal, J.

1.By this judgment we shall dispose of five appeals, namely Regular Second Appeals Nos. 628 to 632 of 1967, all of which have been filed by Randhir Singh and his brother Sukhdev Singh against Balbir Singh and his father Pala Singh and in every one of which the answer to the sole question for determination depends on an interpretation of subclause fourthly (hereinafter to be referred to as the sub-clause) of Clause (c) of Sub-section (1) of Section 15 of the Punjab Pre-emption Act (hereinafter called the Act.)

The facts in all these appeals are practically identical and undisputed. Balbir Singh and Pala Singh Respondents were in possession of five parcels of land as tenants under the owners thereof who sold the same by five different registered sale deeds to Randhir Singh and Sukhdev Singh Appellants. In May, 1965, the two Respondents brought five suits for possession by pre-emption of the said parcels on the on the ground that they held them as tenants under the tenancy of the vendor. The Appellants denied that the Respondents were such tenants and also put forth other pleas regarding actual payment of the sale price with which we are no longer concerned. All the five suits were dismissed by the Subordinate Judge, Muktsar, on the 21st of November, 1966, with the finding that although the Respondents holding the said parcels as tenants on the dates on which they were respectively sold to the Appellants, they ceased to hold that qualification before the institution of the suits which qualification, under the law of pre-emption, they were bound to fulfil till the date of the decree in the trial Court.

In each of the cases the Respondents filed an appeal which was accepted by the Senior Sub-Judge, Ferozepur, on the basis of the interpretation of the sub-clause by P.C. Pandit J. in Sohan Singh v. Udho Ram in which it was held that in view of the language of the subclause the otherwise accepted principle of the law of pre-emption according to which the Plaintiff pre-emptor must continue to hold the qualification which entitles him to pre-empt a sale upto the date of the decree, was not applicable to cases covered by the sub-clause. The learned Senior Sub. Judge decreed each of the five suits on the condition that the price mentioned in the relevant sale deed along with the expenses incurred in purchasing the necessary stamp paper was deposited in the trial Court on or before the 1st of August, 1967, failing which the suit was to be dismissed. It is against the decrees passed by him that the present appeals have been filed.

These appeals came up for admission before my learned brother Mahajan, J., who noted that he had interpreted the sub-clause in Chuhar Ram v. Kasmiri Lal R.S.A. 425 of 1964, decided on the 21st of December 1964 in the same manner as P.C. Pandit, J. in Sohan Singh v. Udho Ram and Ors. (1967) 69 P.L.R. 414 (supra) but that P.D. Sharma, J., had taken a contrary view in Baru Ram v. Manji Ram (1967) 69 P.L.R. 608, In view of this conflict of opinion Mahajan, J. admitted all the five appeals (or hearing by a Division Fench and that is how they are before us now for disposal.

before I take up the contentions raised by Mr. N.L. Dhingra, learned Counsel for the Appellants, in support of the view taken in Baru Ram v. Manji Ram (1967) 69 P.L.R. 608 (supra), it would facilitate matters if I give a resume of the chain of authorities in which the sub-clause or another similar provision contained in sub clause FOURTHLY of Clause (c) of Sub-section (1937) 63 P.L.R. 414 of sect ion 15 of the Act came up for discussion.

In Chuhar Ram v. Kashmiri LalR.S.A. 425 of 1964 (supra) which appears to be the first case of the type, Mahajan, J. , held that under the sub-clause and and sub clause FOURTHLY of Clause (c) of Sub-section (1) of Section 15 of the Act a Plaintiff pre-emptor was required to prove only that he was a tenant of the property sought to be pre-empted under the vendors on the date of the sale and not at any time thereafter, as he could not, in the very nature of things, remain a tenant under the vendors after the tatter had sold the property and that it was not necessary for him to prove further that he continued to be a tenant under the vendors up to the date of the decree. It was observed by Mahajan, J.

The requirement of the statute is that a tenant when he wants to pre-empt the sale has only to show that he is the tenant of the vendor and not that he must continue to be a tenant of the vendee. Therefore, the argument of the learned Counsel that the Plaintiff did not possess the requisite qualification on the date of the decree is pointless.

This view was accepted as correct by P.C. Pandit, J., in Sohan Singh v, Udho Ram and Ors. (supra) wherein also the Plaintiff pre-em-ptor who depended on the qualification covered by the sub-clause had cease to hold the land in question as a tenant before the institution of the suit by him. Pandit, J., decreed the suit with the following observations:

The Punjab Pre-emption Act nowhere says that the pre-emptor should retain his qualifications for pre-empting the land till the date of the decree, ft is true that the decisions have laid down that the Plaintiff''s preferential right must exist on the three important dates viz., of sale, suit and decree. These rulings were however, given before the legislature gave the right of pre-emption to a tenant of the vendor. It is undisputed that after the sale the tenant cannot hold the land sold under the tenancy of the vendor because the vendor no longer remains the owner of the property and the title in the same passes to the vendee. It is a different matter that after the sale the vendee may still retain him as his own tenant, but even if he becomes the tenant of the vendee that does not afford him a ground for preempting the land, because as already mentioned above, it is only the tenant of the vendor who holds the land sold who has a right of preemption. If the well settled principle of law relied upon by the Courts below were to be applied to the case of a tenant pre-emptor as well, then it would be depriving him of his right of pre-emption given by the statute. The legislature could not have intended this result, because it is supposed to know the well settled principle of law when it amended the Punjab Pre-emption Act and gave the right of pre-emption to the tenant of the vendor. As I have said, it would not have made any difference if at the date of the institution of the suit, the Plaintiff had become the tenant of the vendee instead of the vendor, as perhaps the learned Additional District Judge seemed to think. Similarly, even if the Plaintiff had been forcibly dispossessed from the land, that too would not change the situation, because in that case also it could not be said that he was the tenant of the vendor at the time of the institution of the suit. Thus, the tenant who holds the land sold under the tenancy of the vendor had a right of pre-emption and in order to succeed he has not to retain this qualification on the date of the institution of the suit or at the time of the decree.

The reasoning adopted by P.D. Sharma, J. in holding a contrary view in Baru Ram v. Manji Ram (supra) was:

The learned Senior Subordinate Judge conceded and rightly too, as held in Ram Lal v. Raja Ram (1960) 62, P.L.R 291. Surjit Singh v. Gurnam Singh, (1964) 66, P.L.R.1063 and Ramji Lal v. The Slate of Punjab (1966) 68, P.L.R. 345, that the right of pre-emption had to subsist in the Plaintiff pre-emptor not only at the time when the sale sought to be pre-empted was effected but up to the date of the decree. He, however, added that this well-settled principle of law could not be made applicable to the case of the present category because in the nature of things a pre-emptor after the sale could not have held the land under the vendor whose title therein after the sale vested in the vendee. The learned Counsel for the Appellant contested the correctness of this finding and in doing so argued that what the law required was that the Plaintiff-pre-emptor in order to succeed should have held the land at the time of (a) sale, (b) institution of the suit and (c) passing of the decrte by the trial Court on the basis of the right which he had acquired as tenant of the vendor. His argument is indeed unexceptionable. What the law contempt ates is that the Plaintiff pre-emptor who has based his right to preempt the sale on the provisions made in Section 15(1)(c) must be holding the land under tenancy of the vendor at the time of the sale and continue to hold it on the basis of the same right up to the date of the decree. The sale alone could not have divested him of his right to hold the land which he had acquired as tenant of the vendor. It was, therefore, not correct for the learned Senior Subordinate Judge to observe that the well-settled principle of the pre-emption law as enunciated in the above three cases could not be made applicable to the present case.

Sub-clause fourthly of Clause (c) of Sub-section (1) of Section 15 of the Act came up for interpretation before Gurdev Singh, J. in Gurbachan Singh and Ors. v. Bhagat Singh, (1968)70 P. L. R. 553. That sub-clause lays down:

15.(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-

(c) Where the sale is of land or property owned jointly and is made by all the co sharers jointly-

Fourthly, in the tenants who hold under tenancy of the vendors or any of them the land or property sold or a part thereof.

Gurdev Singh, J., interpreted this sub-clause in confirmity with the view taken by Mahajan, J., and P.C. Pandit, J., and observed:

This clause applies to the sale of the joint land or property made by all the co-sharers jointly. Obviously, as a result of such a sale, all co-sharers cease to have any interest in the joint property. Accordingly, the tenant or tenants holding the tenancy under the vendors would cease to be tenants of the vendors from the date of the sale. It, therefore, follows that a tenant of the vendors, who was holding the tenancy under the vendors on the date of the sale, would cease to occupy that status as soon as the sale is completed and the title passes to the vendee. Consequently subsequent to the sale a tenant of the vendors in whom right of pre-emption vests under clause fourthly of Section 15 (i) (c) with which we are concerned, cannot by very nature of things satisfy the condition of being a tenant who holds under tenancy of the vendors or any one of them the land or property sold or part thereof. In other words, it will be impossible for a tenant exercising the right of pre-emption under this clause to satisfy the condition of retaining that qualification of his being a tenant under the vendors or any one of them on the date of the suit and the date of the decree Insistence on his retaining that qualification subsequent to the sale would thus deprive the tenant of the right of pre-emption which the legislature has expressly cenferred on him under clause FOURTHLY of Section 15(1) (c). Such an interpretation would render the provision nugatory and result in depriving the tenants in a joint tenancy of their right to pre-empt which the legislature has given him (them?).

All the judgments referred to above were considered in Bhag Singh v. Bhajan Singh (1968) 70 P.L.R. 1046 by Mahajan, J., who dissented from the view taken by P.D. Sharma, J., in Baru Ram v. Manji Ram (1966) 70 P.L.R. 1046 (supra).

From the judgment of Mahajan, J., in Chuhar Ram v. Kashmiri Lal (supra), the unsuccessful vendee (Kashmiri Lal) preferred Letters patent Appeal No 71 of 1965 which was decided on the 19th of November, 1969, by Mehar Singh, C.J., and B.R. Tuli, J., who considered all the authorities above mentioned and agreed with the view taken by Mahajan, J., Pandit, J., and Gurdev Singh, J., and overruled that of P.D. Sharma, J., in Baru Ram v. Manji Ram (supra).

The first contention of Mr. Dhingra is based on the dicta in Hans Nath v. Ragho Pershad Singh, AIR 1932 PC 57 and Ramji Lal v. The State of Punjab In the Privy Council case it was held that a pre-emptor''s claim may be defeated by his losing his preferential qualification to pre-empt after the sale end "at any time before the adjudication of the suit. '' This dictum was followed by the full Bench in Ramji Lal and Anr. v. The State of Punjab (supra) for holding that it was the settled rule in pre-emption law that a pre-emptor must maintain his qualification to pre-empt up-to the date of the decree of the first Court. It is argued by Mr. Dhingra that there was nothing in the language of the sub cause which would warrant a departure from the rule just enunciated. According to him, the argument adopted by P.C. Pandit, J., in Sohan Singh, v. Udho Ram (supra) that the sub clause would be rendered nugatory if the pre-emptor was required to retain his qulification of being a tenant under the vendor up-to the date of the decree is not correct. He maintains that the word "vendor" occurring in the sub-clause does not mean merely the person actually bringing about to be pre-empted but also his successors-in-interest, i.e., the vendee or vendees and their transferees. Reliance by him is placed on the provisions of Section 3(6) of the Act read with Sub-section (4) of Section 3 of the Land Revenue Act and Sub-sections (6) and (7) of Section 4 of the Punjab Tenancy Act. These provisions may be reproduced for facility of reference:- Section 3(6) of the Act.

In this Act, unless a different intention appears from the subject or context,-

(6) any expression which is defined by Section 3 of the Punjab Land Revenue Act, 1867, (XVII of 1887) shall, subject to the provisions of this Act, have the meaning assigned so it in the said section.

Section 3 (4) of the Land Revenue Act.

In this Act, unless there is something ropugnant in the subject or context,

(4) ''rent'',''tenant'',''lardlord'', and ''tenancy'', have the meanings, respectively, assigned to those words in the Punjab Tenancy Act, 1887;

Section 4 (6) & (7) of the Punjab Tenancy Act.

In this Act, unless there is something repugnant in the subject or context -

(6) ''landlord'' means a person under whom a tenant holds land,

and to whom the tenant is, or bat for a special contract would be, liable to pay rent for that land:

(7) ''tenant'' and ''landlord'' include the predecessors and successors in interest of a tenant and landlord, respectively.

The argument of Mr. Dhingra is that in relation to a tenant covered by the sub-clause his vendor is his landlord, that the successor in-inter-est of such landlord are also covered by the term "landlord" as defined in Sub-section (7) of Section 4 of the Punjab Tenancy Act and that this definition must be applied in construing the word "vendor" occurring in the sub-clause. The argument is wholly fallacious. According to the subclause, it is the vendor under whom a tenant must hold his tenancy in order to acquire the necessary pre-emptive qualification. The word "landlord" is not so much as referred to in the sub-clause although the word "tenant" is. In view of the provisions of Sub-section (6) of Section 3 of the Act it is permissible to refer to the definition of the word "tenant" as given in the Punjab Tenancy Act while construing that word as occurring in the sub-clause; but then those provisions go no further and do not say that in order to construe the word "Vendor" occurring therein recourse may be had to the definition of the word "landlord" given in the Punjab Tenancy Act. The word "vendor", in the absence of any special definition given by the Act must be given its plain meaning which cannot be said to include the successors-in-interest of the author of a site sought to be pre-empted. In this view of the matter the reasoning of P.C. Pandit, J., in Sohan Singh v. Udho Ram (as also that of Mahajan, J., in Chuhar Ram v. Kashmiri Lal -while interpreting the sub-clause as meaning that a pre-emptor banking on the qualification mentioned therein has to be a tenant of the vendor and that as soon as the sale takes place, be ceases to have that qualification, cannot be said to suffer from any defect.

Nor is there any inherent incongruity in the rejection by the legislature of the general principle of the law of pre-emption enunciated in Ramji Lal and Anr. v. The Stale of Punjab (supra) that a pre-emptor must retain his superior qualification up-to the date of the decree it is not contested that it is open to the legislature to confer the right of pre-emption on a class of persons in derogation of that principle and that once a right is so conferred, it will be enforceable notwithstanding that principle. The provisions of the sub-clause, in my opinion, do confer such a right and the said principle cannot override them.

Here, however, I may advert to another aspect of the case according, to which there is really no conflict between the principle just above mentioned and the ratio of the decisions in Sohan Singh v. Udho Ram and Chuhar Ram v. Kashmiri Lal A person who is a tenant of the vendor even though he is ejected from the land alter the sale continues to retain the qualification covered by the sub-clause up to the date of his death. That qualification is his holding land under the tenancy of the vendor. This qualification is not lost and cannot be lost at any time after the sale because in the very nature of things it has reference to a particular point of time, i.e., the date of the sale, whereafter nobody can held the said land under the tenancy of the vendor who. on that date, parts with all rights in the land. Whenever, therefore, a question arises about the existence of a person "who holds under the ten incv(sic) of the vendor of the land or property sold" a reference will have to be made to the date of the sale and the person, if any. then in occupation of the land as a tenant under the vendor determined. In the present case the Respondents even now fulfil the character of persons who held land under the vendor and from the stand point just mentioned it cannot be said that they ever lost or could lose the status which conferred on them the qualification covered by the subclause.

In view of what I have so far said, I cannot agree with the decision in Baru Ram v. Manji Ram (supra) which in my opinion, was rightly overruled by the Division Beach deciding Kashmiri Lal v. Chuhar Ram (supra).

Another contention raised by Mr. Dhingra is based on Shri Audh Behari Singh v. Gajadhar Jaipuria(10) and Hazari v. Nekill, which lay down that the right of pre-emption is not a personal right but a right attaching to the land. In Hazari and Ors. v. Nekill (supra) their Lordships observed:

It is not correct to say that the right of pre emption is a par-sonal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre-emotion becomes enforceable only when there is a sale but the right exists antecedently to the sale the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner''s right of Sale and compels him to sell the prop?rty to the person entitled to pre-emption under the statute In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to preempt.

Mr. Dhingra urges that because the right of preemption attaches to land it follows that what the sub clause means is that if a person is a tenant under the vendor at the time of the sale and so acquires a right of pre emption, that right must go with the land and he held to continue in him as a tenant of the vendee. This argument is, if I may say so, based on a misreading of the dicta of their Lordships of the Supreme Court. All that was meant by their Lordships was that the right of pre emption attaches to the land and is not a personal right in the sense that it derogates from the full rights of ownership and just as a vendor cannot sell his land free from the right of pre-emption, his vendee cannot acquire it except subject to such a right. Those dicta do not mean that once a right of pre emption is acquired, it will enure for the benefit of the acquirer so long as he holds the land by reason of the possession or ownership of which he acquired it. Were it otherwise, no right of pre-emption could be acquired on the basis of mere relationship, apart from the ownership or possession of land. It is however, clear from a bare perusal of Section 15 of the Act itself that it is not merely possession or ownership of the land which clothes persons with a right of preemption but that relationship by blood is the main criterion for the conferment of such a right.

There is another very good reason why I cannot accept the contention of Mr. Dhingra that the right of pre-emption of a tenant covered by the sub clause would go with the land in the sense in which he says it does. If the contention were to be accepted, the words under tenancy of the vendor" occurring in the sub-clause would become redundant which result would militate against the accepted principle of interpretation of statutes that the legislature does not ordinarily use 3 superficial word. If the intention of the legislature was to confer the right of pre-emption on a person occupying the land as a tenant with-out refference to the person under whom he hold his tenancy, the sub-clause would simply read:

FOURTHLY, in the tenant who holds the land or property sold or a part thereof.

Reliance was also placed by Mr. Dhingra on a Single Bench decision of this Court by H.K. Khanna, J., (as he then was) in Sant Singh etc. v. Sucha Singh 1963. C.L.J. (P&H.) 62. That case, however, is not in point as it proceeds on an interpretation of the word "tenant" as occurring in section 17-A of the Punjab Security of Land Tenures Act, 19513, which runs thus:

Notwithstanding anything to the contrary contained in this Act or the Punjab Pre-emption Act, 1913, a sale of land comprising the tenancy of a tenant made to him by the landowner shall not be pre-emptible under the Punjab Pre emption Act, 1913, and no decree of pre-enption passed after the commencement of this Act in respect of any such sale of land shall be executed by any Court .

Section 2(6) of the Punjab Security of land Tenures Act adopts the definition of the word "tenant" given in Section 4(7) of the Punjab Tenancy Act which states that a tenant includes his successor in-interest. It was on the basis of this definition that Khanna, J., held:

I, therefore, have no doubt in my mind that the Appellants became the tenants of the land in dispute before the filing of the suit. Indeed they became the tenants even before the sale deed in their favour was entered in the register of Sub-Registrar. The vendee-Appellants improved their status as a result of becoming the tenants of the land in dispute and in my opinion the effect of that was that the sale, which had taken place in their favour, became not pre-emp-tible.

Sant Singh etc. v. Sucha Singh, etc., is clearly distinguishable and has no application to the facts of the present case.

For the reasons stated, I would hold that the sub-clause was correctly interpreted by Mahajan, J., in Chuhar Ram v. Kashmiri Lal, (supra) and Bhag Singh v, Bhajan Singh (supra) and by P.C. Pandit, J. , in Sohan Singh v. Udho Ram, (supra) as also, if I may say so with respect, by the Division Bench in Kashmiri Lal v. Chuhar Ram (Supra), and that the contrary view expressed by P.D. Sharma, J., in Baru Ram v. Manp Ram (supra) is erroneous and was rightly overruled by the said Division Bench.

In the result, I would dismiss all the five appeals with no order as to costs.