Malhu and Others vs Sham Lal and Others

Capoor, J.—This second appeal arises from a decree for possession by pre-emption of certain land made by the Subordinate Judge First Class, Palwal, in favour of the plaintiff-respondents on the 23rd May, 1961, and confirmed on appeal by the Additional District judge, Gurgaon, on the 9th March, 1962.

The appellants are Malhu, Budhi and Jaishi, who were defendants Nos. 8 to 10 in the suit. The original vendor was Nathi (defendant No. 7), who jointly owned half share of agricultural land in village Khajuka, Tehsil Palwal, which he sold for Rs. 10,000/- in favour of Charan Singh etc. (defendants Nos. 1 to 6) on the 9th June, 1959. The document (Exhibit D. 1) was registered on the 19th September, 1959. On the 29th June, 1960, the plaintiffs Sham Lal etc. instituted the suit for pre-emption claiming a superior right of pre-emption on account of their being co-sharers in the land in suit and additionally on the ground on their being the sons of the vendor''s brother. It is an admitted fact that on the 10th August, 1960, defendants Nos. 1 to 6 sold this land to the present appellants, that is, defendants Nos. 8 to 10. It is also not disputed that these defendants (defendants Nos. 8 to 10) were tenants of the land under Nathi, the original vendor. Again it is not disputed that on the 7th September, 1960 the defendants Nos. 8 to 10 purchased some land from Jawala Parshad, who was a co-sharer along with Nathi in the joint holding and thereby they also became co-sharers in it.

The question for determination is whether in these circumstances defendants Nos. 8 to 10 can defeat the plaintiff''s right of pre-emption.

The Punjab Pre-emption Act, 1913 (Act No. I of 1913), was extensively amended by the Punjab Preemption (Amendment) Act, 1960 (Act No. 10 of 1960), which came into force on the 4th February, 1960. At the time when this suit was filed the principal Act was in force. Under the original Act, so far as tenants were concerned, the right of pre-emption was recognised only in a tenant having a right of occupancy either in the land sold or in any agricultural land in the estate within the limits of which the land or property is situated. It is not disputed that defendants Nos. 8 to 10 as tenants would have no right of pre-emption u/s 15 of the Act as it originally stood. However, such a right has been given in the amended provisions. The sale being of a share out of joint land and not having been made by all the co-sharers jointly, it will be clause (b) of sub-section (1) of section 15 (as amended) which would be applicable In this clause, the fifth item is that of tenants who bold under tenancy of the vendor or vendors the land or property sold or a part thereof, and they come after the co-sharers in the joint holding. In the capacity of tenants the right of pre-emption of defendants Nos. 8 to 10 comes after that of the plaintiffs.

However, it was contended on behalf of the defendant-appellants that in view of the provisions of section 17-A of the Punjab Security of Land Tenures Act, 1953 (Punjab Act No. 10 of 1953), the sale could not be preemptible against them. This provision, so far as material, is as follows :

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-emption passed after the commencement of this Act, in respect of any such sale of land shall be executed by any Court.

Both the Courts below have concurred in holding that the defendant-appellants cannot take advantage of this provision and after hearing the learned counsel for the parties, I agree that the view of the Courts below was correct. The sale, to pre-empt which the suit was brought was by Nathi, and it was not in favour of the tenants. Section 17-A of Act No. 10 of 1953 in terms applies only to suits and decrees for preemption in respect of sale made by the land-owner to the tenant. The concluding words narrated above emphasise that the making of a decree of pre-emption is barred only in respect of such sales of land. This provision contains a ground of defence and not of attack. The interpretation, which the learned counsel for the defendant-appellants seeks to place on this provision, would be that if there are tenants on some land, that owner would not be competent to sell it except to those tenants. This is much too wide an interpretation which cannot reasonably be placed on the statute.

It was next contended on behalf of the appellants that under the well recognised principles of the law of pre-emption in the Punjab, the plaintiffs'' superior right of pre-emption must subsist not only at the time of the existence of the suit but at the time of the passing of the decree vide Bishan Singh and Others Vs. Khazan Singh and Another, . However, in the same authority (at page 844) it has been laid down that it is only if the subsequent sale is a tansfer in recognition of a pre-existing subsisting right that it would not be affected by the doctrine of his pendens, as the subsequent transfer did not create a new right pendente lite. In the case before me at the time of the institution of the suit, defendants Nos. 1 to 8 did not have any right of pre-emption as to the sale in question and such a right was only conferred on them by the amendment made during the pendency of the litigation. Hence, it would be hit by the doctrine of pendente lite.

The last point urged on behalf of the appellants was that by purchasing some part of the joint holding from Jawala Parshad on the 10th August, 1960, they had become co-sharers in the joint holding and as such had a right of pre-emption equal to that of the plaintiff. It was pointed out that sale by Nathi was made on the 29th June, 1959, the sale deed was registered on the 19th September, 1959, and as the sale by Jawala Parshad in favour of the appellants was within one year of the latter date, the suit by them to impugn that sale could still be within time under Article 10 of the First Schedule to the Indian Limitation Act, (Act No. 9 of 1908). This argument cannot, however, be allowed to prevail. Section 21-A of the Punjab Pre-emption Act provides that any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre emption shall not affect the right of the pre-emptor plaintiff in such suit. Thus even if the vendee, that is defendants Nos. 1 to 6, had subsequent to the institution of the suit become co-sharers.n the joint holding by purchase from another co sharer, section 21A would have prevented them from defeating the plaintiffs right of pre-emption. Ipso facto, the venders (defendants Nos. 8 to 10) cannot derive any advantage from the purchase mule by them from Jawala Parshad pendente lite. In tact, this argument was not pressed on their behalf in the trial Court.

Mr. Manchanda, learned counsel far the appellants, cited in this connection certain observations of Dua J. in Ram Nath v. Rim Chand (1960) 62 P.L.R 247. It was held in that case that section 21A of the Punjab Pre-emption Act has nothing to do with cases where vendees have transferred the property in favour of persons having a superior right of pre-emption. This authority has no application because in the case before me the appellants were not co-sharers in the joint holding when defendants Nos. 1 to 6 sold the land to them.

In the result, the decree of the lower appellate Court is upheld and the appeal dismissed with costs.