Karam Singh and Others vs Harnam Singh and Another

J.V. Gupta, J.—This is vendees'' second appeal in a pre-emption suit which had been decreed by the two courts below. Bhan Singh sold the suit property vide sale deed dated 1st September, 1967 to the vendee Defendant- Appellants. Two suits were filed to pre-empt the said sale. One suit was filed by Harnam Singh claiming himself to be the co-sharer and hence he had a right of preemption. The second suit was filed by Kashmir Singh on the basis of his being the grand-son of the vendor. Admittedly, Harnam Singh Plaintiff is also the brother of Bhan Singh vendor Both the suits were decreed. Kashmir Singh was given the first right to deposit the sale price failing which Harnam Singh the rival pre-emptor was to deposit the sale price.

The learned Counsel for the vendee-Appellants submitted that in view of the Supreme Court judgment in Jagdish and Others Vs. Nathi Mal Kejriwal and Others, even Harnam Singh though a co-sharer, being the brother of the vendor, was not entitled to pre-empt the sale, of course, the suit of Kashmir Singh, who cams on the basis of being grand -son of the vendor is liable to be dismissed in view of the earlier judgment of the Supreme Court in Atam Parkash v. State of Haryana (1986) 89 P. L. R. 329, In reply to the learned Counsel for pre-emptor Harnam Singh submitted that even though he is the brother of the vendor but he never claimed the right of pre-emption on that account. Right of pre-emption was claimed being the co-sharer and, therefore, said Supreme Court judgment was not applicable. In any case argued the learned Counsel that Section 22 of the Hindu Succession Act also provides a preferential right to acquire the property and, therefore, on that account as well Harnam Singh was entitled to pre-empt the sale.

After hearing the learned Counsel for the parties in view of the Supreme Court judgment rendered in Jagdish s case (supra) the suit of Harnam Singh is also liable to be dismissed because admettdly he is the brother of the vendor and, therefore, he falls in clause secondly of Section 15 (b) of the Pre emotion Act. Consequently, this appeal succeeds. The judgment and decrees of the courts below are set aside and the suit of Harnam Singh as well as of Kashmir Singh stands dismissed with no order as to costs. However, the amount, if any, deposited by the pre-emptors will be refunded to them.