Kirpa Ram and others vs Harnam Singh and another

Tek Chand, J.—This is defendants''s appeal from the judgment and decree of the District Judge, Barnala, affirming that of the trial Court decreeing plaintiff''s suit for possession by way of pre-emption of agricultural land.

The facts giving rise to this case are that Jai Kaur, widow of Bir Singh sold 15 bighas and 18 biswas of land in favour of Kiru Singh, Hazura Singh and Kapur Singh, sons of Mohabat Singh, by a registered deed of sale dated 4th July, 1961, for Rs. 5U00/-. Harnam Singh is the brother''s son of vendors husband the plaintiff in his plaint asserted his claim to the right of pre-emption on the ground of relationship as stated above.

In the written statement, the defendants raised an objection that the plaintiff had not indicated as to how he asserted his pre-emptive right simply stating that he is the collateral of the vendor''s husband is not enough. It was asserted that Rs. 5000/ was genuine price and was actually paid. Further a sum of Rs. 625/15 nP, was also claimed as the amount spent for the purchase of stamp paper for the sale deed and for other incidental expenses. The trial Court framed the following issues:

(1) Whether the plaintiff has a superior right of pre-emption from that of vendees-defendants ?

(2) Whether the sale price was actually paid or fixed in good faith ?

(3) If issue No. 2 be not proved, then what is the market value of the land in suit ?

(4) Whether the vendees-defendants are entitled to the sum of Rs. 62fc.50 nP. in case the decree is passed as is alleged by the vendees defendants ?

(5) Relief.

The trial Court found the relationship established and the right of preemption of the plaintiff u/s 15 (2) Secondly of the Punjab Pre-emption Act was established. Consideration was found to be proved to the extent of Rs. 4100/- only and this was also the market value. It was found on the fourth issue that the plaintiff would have to pay further a sum of Rs. 600/ besides Rs. 4100/-. Plaintiff''s suit for possession by way of pre-emption was decreed against the defendants with the direction that the plaintiff would deposit Rs. 4700/- in the Court by 29th of July, 1963.

The defendants went up in appeal before the District Judge and were unsuccessful. Before the District Judge, it was urged by the defendants that the husband of Mst. Jai Kaur had died before the enforcement of the Hindu Succession Act, 1956, and that she had inherited only limited rights and had become absolute owner later on by virtue of section 14 of the Act. It was also pointed oat by the District Judge that there was no objection in the pleadings that Bir Singh, husband of Jai-Kaur had died before the passing of the Hindu Succession Act, 1956. It was observed that any amount of evidence beyond the pleadings or the issues, as to Bir Singh having died eight or nine years ago i.e. before the Act, would not be looked at. It was also said, that the evidence of D.W. 3 and D.W. 6 could not be regarded as definite as to the time of death. The plaintiff was held to have preferential right of pre-emption as against the defendants. The sale was found to be for Rs. 4100/-. The pre emptor was required to pay the expenses in the nature of stamp duty and registration charges. The defendants'' appeal and also the cross-appeal of the plaintiff were dismissed.

Regular Second appeal has been filed on behalf of the defendants. The arguments urged on behalf of the appellants are two fold. It was submitted that it was not pleaded in the plaint that the property which was the subject of sale was inherited by Jai Kaur from her deceased husband and in the absence of allegation and proof of inheritance from her husband, the plaintiff''s light to pre-empt could not be deemed to have been established. No amount of evidence produced on a plea not taken could be looked into. The rule of Secundum allegatta et probata was invoked. Reliance was placed in support of this proposition on a number of decisions. In Bhagat Singh v. jaswam Stngh AIR 1966 S.C. 1877, it was held that the mere fact that the issuess as framed did involve the consideration of the validity of the adoption and the ancestral nature of the land in suit would not clothe the vague allegation in the written statement, with the definiteness of the requisite pleadings Where a claim has never been made in the defence presented, no amount of evidence could be looked into upon a plea which was never put forward The decision of the Privy Council in AIR 1930 57 (Privy Council) was followed. The Privy Council had held that "where claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward". In support Zora Singh v. Jagta Singh and Mutishi 88 PR. 1917 Rulia Ram v. Ram Chander Dan AIR 1933 Lah. 77 : 35 P.L.R. 96 and Nunia Mal and Another Vs. Maha Dev, were cited In the leading case of Eshenchunder Singh v. Shamachurn Bhutto, Koilaschunder Singh and others 1866 M.I.A. 7. Lord Westbury at page 23 observed,

It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at variance with the case that the plaintiff has pleaded, and, by joining issue in the cause, has undertaken to prove.

The basic principle is that a party can only succeed according to what is alleged and proved (secundum allegata et probata)- The party is bound to substantiate the case as made out by him. The foundation of the principle is that evidence produced on issues on which the parties actually went to trial ought not to be made the basis for decision of another issue which was not present to the minds of the parties, and on which, they had no opportunity of adducing evidence. But this technical rule need not be enforced, where the defendants are fully aware from the very beginning of the trial as to the case which they have to meet, and the defendants have tried to rebut that very case in their evidence. It cannot be said that the defendants are taken by surprise or that the Courts have set up a new case which the defendant had no opportunity of meeting vide Ghulam Alt v. Mohammad Ali AIR 1933 Lah. 348. The underlying object is that a party would be seriously prejudiced if his opponent is allowed to substantiate a case different from that pleaded, but every variance between pleadings and proof is not necessarily fata). The real test is whether the other party has been taken by surprise, but where there has been no surprise and parties have understood what each wanted to prove and what the real issue was, justice is better done by deciding the case on the merits as presented by the parties. The Supreme Court in Nagubai Ammal and Others Vs. B. Shama Rao and Others, held that the rule against variance between pleading and proof has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.

The principle of variance between pleading and proof ought not to be applied in the abstract, without taking into account the circumstances of the case, and without scrutinising the actual question which is being agitated in the particular case The test is whether the defendant would be taken by surprise if relief is granted on the facts established by the evidence vide Ananda Chandra Chakravarti Vs. Broja Lal Singh and Others, .

The complaint of the defendants is that in the plaint it was not alleged that Jai Kaur had succeeded to the land on the death of her husband in order to give to the plaintiff a pre-emptive right u/s 15(2) Secondly of the Punjab Pre-emption Act; and all that was alleged was that the plaintiff was the vendor''s husband''s brother''s son I was inclined to give weight to the contention of the defendants appellants and to apply the rule of secundum allegata et probata but on consideration of the statements of the defendants and his witnesses, I do not find any prejudice, or element of surprise in not taking the specific plea. D.W. 6 Kiru Singh defendant admitted in cross-examination that the vendor Jai Kaur had succeeded to the land in suit from her husband Bir Singh. To the same effect is the statement of D.W. 1 Inder Singh, D.W. 2 Paras Ram and D.W. 3 Pritam Chand. The lacuna in the pleading of the plaintiff has been supplied by the defendant and his witnesses. In Firm Sriniwas Ram Kumar v. Mahabir Prasad AIR 1961 S.C. 177 Mukherjea J. observed;

The rule undoubtedly is that Court; cannot grant relief to the pltf. on a case for which there was no foundation in the pleadings and which the ether side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft, in his written statement but was expressly put for yard as an answer to the claim which the pltf, made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft, himself makes. A demand of the pltf. based on the deft''s own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the deft in his pleadings In such circumstances, when no injustice can possibly result to the deft, it way not be proper to drive the pltf. to a separate suit.

In that case, plaintiff''s admission was based on the defendant''s own plea, and in this case on defendant''s own admission.

For reasons stated above, I do not find any adequate reason for non-suiting the plaintiff on the basis of variance between pleading and proof.

The second contention of defendants appellants is that requirements of section 15(1) or of section 15(2) of the Punjab Pre-emption Act, have not been complied with The relevant portion of section 15 is produced below:

15 (1) The right of preemption in respect of agricultural land and village immoveable property shall vest-

(a) where the sale is by a sole owner-

FIRST, in the son or daughter or son''s son or daughter''s son of the vendor;

SECONDLY, in the brother or brother''s son of the vendor;

THIRDLY, in the father''s brother or father''s brother''s son of the vendor;

FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof;

(b) * * *

(c) * * *.

(2) Notwithstanding anything contained in sub-section (1)-

(a) * * *

(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 husband of the female;

SECONDLY, in the husband''s brother or husband''s brother''s son of such female.

Section 15(1) obviously cannot be invoked by the plaintiff as the right to pre-empt does not vest in husband''s brother''s son, he not being among any one of the categories of relatives of the vendor on whom the light to pre-emption has been conferred.

The next question is whether the plaintiff can take advantage of sub-section (2) (b) Secondly. This is a non obstante clause. The expression literally signifies "not being in the way", "notwithstanding" or "regardless of''. The words non obstante once, signified the doctrine whereby the English King could dispense with the law whose violation he authorised. The Royal Grant of dispensation began with the words "non obstante aliquo statuto in contrarium" notwithstanding any Statute to the contrary. These words were used to convey a licence from the King to do anything, notwithstanding any Statute, as a dispensation from or relaxation of a rule. In its secondary sense, non obstante clause is in the nature of an exception to a rule. Subsection (2) (b) provides that notwithstanding anything contained in sub-section (1) where the sale is by a female of land or property to which she has succeeded through her husband

The right of pre-emption shall vest in the husband''s brother''s son This provision came up for construction be fore a Division Bench of our High Court in Jai Singh v. Mugla (1967) 69 P.L.R. 476 in a suit for possession by way of pre-emption at the instance of vendor''s husband''s brother''s son. The facts and circumstances were similar to this case. It was found that application of the provision was attracted. The cases of sales by females were divided chronologically and they fall into the following three categories:

(i) Where sale was effected by a female limited owner before the coming into force of the Succession Act.

(ii) Where a female owner succeeded to a limited estate but sold the property after the limited estate merged into the full ownership or the: proprietary estate, consequent upon the coming into force of the Succession Act; and

(iii) Where a female succeeds to property of her husband father, or brother as the case may be, as a full owner, in cases when the succession opens out after the coming into force of the Succession Act. The Bench expressed the view that there was no difficulty in deciding the question relating to the rights of pre-emption in cases falling in the first and the third categories. In cases falling in the first category, the unamended section 15 prior to the Punjab Act 10 of 1960 would apply. In cases falling in the third category, section 15 sub section (2) as it stands now would be applicable. The case which arose before the Bench fell in the second category and those sales were deemed to be on the same footing as sale of the self acquired property by a female on account of the doctrine of merger.

''Merger'' signifies the absorption of a thing of less importance by a greater, whereby the less ceases to exist but the greater is not increased. In this case, the merger that has followed is u/s 14 of the Hindu Succession Act by virtue of which any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, is held by her as full owner thereof and not as a limited owner.

This merger is in the nature of an enlargement or expansion of the former restricted ownership. The restrictions placed by former law on a female as a limited owner were withdrawn and she was made a "full owner". The result is that the one attribute of ownership which she did not possess before, namely of jus disponendi right to alienate the property, had been conferred The Bench expressed the view that the female vendor had not within the meaning of sub section (2) (b) "succeeded'''' to the property in question "through her husband.'' The Bench laid emphasis on the difference between what was inherited by the vendor or to what she succeed through her husband, which was merely a life estate on the one hand, and what she sold to the vendees, on the other. It was remarked that what the vendor sold to the vendees were her rights of full and absolute ownership of the property in question and to those rights, she never succeeded through her husband.

"Property" is used in law in two different senses. Firstly, it is applied to those external things which are the. objects of rights and estates i.e. to those things over which dominion is exercised. In the second sense, the term is also applied to the rights or estates which a man may acquire. In this case, the term ''property'' is to be understood in the first sense as having the same meaning as tangible property e.g. land. On the death of her husband, Jai Kaur "succeeded to" the land. The term "succeeded to" is understood to mean to come next after as by de scent or "to take the place of another as by election or appointment.'' There can be little doubt that Jai Kaur in this sense did succeed to the land of her husband. The sale no doubt was of the land which is an object of right which came to her on her husband''s death and, therefore, ''through her husband." Such a sale can be pre-empted by husband''s brother''s son. Sub section (2) (b) does not make a distinction between limited or absolute rights of ownership Property in this sub-section is to be construed, as any village immoveable property with in contemplation of section 6 or urban immoveable property referred to in section 7 of the Act. Jai Kaur succeeded to the land left by her husband and she undoubtedly became an absolute owner by virtue of section 14 of the Hindu Succession Act. The words of sub section (2) (b) do not appear to me to indicate that husband''s brother of the female vendor cannot sue for possession by way of pre-emption of land to which the female succeeded through her husband though at the time of the sale, her rights had been enlarged to those of a full owner. It was observed by the Division Bench that the widow was "not deemed to have ''succeeded'' to the absolute and full ownership of the estate in the said land or property which she acquires u/s 14(1) of the Hindu Succession Act on the coming into force of the said provision by the merger of her lesser estate into the greater one within the meaning of clause (b) of sub-section (2) of section 15 of the Pre-emption Act and that, therefore, a sale of such absolute estate by her after the coming into force of the Succession Act is pre-emptible under sub section (1), and not under subsection (2) of section 15."

Regardless of the doubts that I may entertain, I am bound to follow the decision of the Division Bench. According to this decision, as Jai Knur''s husband had died prior to the enactment of the Hindu Succession Act, 1956, she had succeeded to the limited estate of a Hindu widow, the sale of the land on her acquiring full ownership u/s 14 of'' the Hindu Succession Act could not be pre-empted.

The next question is whether Jai Kaur''s husband Bir Singh died before Hindu Succession Act was enacted i.e. before 17th June, 1956. There is evidence on the record in the statements of witnesses made in April, 1963, that Bir Singh had died eight or nine years ago which would mean that he died in 1955 or 1954 which was prior to the enactment of Hindu Succession Act. The reason given by the lower appellate Court for reflecting this piece of evidence was, that the actual date of Bir Singh''s death had not been indicated. This view, to my mind, is erroneous. If Bir Singh died in 1955 or in 1954, the actual date when he expired is immaterial. What we need know is that he died before the enactment of Hindu Succession Act, 1956, and, therefore, his widow succeeded to the land as a limited owner. There is another way of looking at this matter. The plaintiff had to prove that he was entitled to pre-empt the sale of the land and before he could do so, he had to show that Jai Kaur had succeeded to the land as absolute owner. The burden of proof lay on the plaintiff and not on the defendants and he has failed to discharge the onus of showing that he could pre-empt the sale u/s 15(2) (b).

Arguments have also been addressed on issues 2 and 3. It has been found by both the Courts that what was actually paid as sale price was Rs. 4100/- and not Rs. 5000/-. It is admitted that on the insistence of the sub-registrar Rs. 5000/- were paid but the sum of Rs. 900/- was returned by the vendor to the vendees outside the Registration Office. Therefore, actual payment was of Rs. 4100/-. The pronote for Rs. 900/- has not been produced. Moreover, the finding under issue No. 2 is of fact and cannot be disturbed in the second appeal.

Issue No. 3 relates to the market value of the land. It has been found that there is no conclusive evidence from which it can reasonably be held that the market price of the land was what was claimed by the vendee. Some effort was made to compare from other sale deeds the market price of this land but in the absence of the location of those lands, the lower Court failed to apply the same standards as the situation of a land was factor on which price would depend in a large measure.

It was then stated that the trial Court had erred in assuming that the major portion of the laid sold was dakar and not khalas chahi. It was contended that actually khalas chahi is 11 bighas while dakar is 4 bighas only. Assuming it to be so, the evidence on the record is too scanty to admit of determination of the market value. No case has been made out to disturb the finding of the lower Courts on issue No. 3 either.

Following the Division Bench decision, this appeal deserves to succeed and I order accordingly. There will, however, be no order as to costs.