Mota Singh and Others vs Prem Parkash Kaur and Others

Inder Dev Dua, J.—This is a referred case and the facts relevant for our purposes are stated in referring order and, therefore, need not be repeated here. Although the counsel for the parties stated that four questions arose for determination in this appeal, the arguments were addressed only on the first question, because, in our opinion, decision on this point is sufficient to conclude the litigation. This question is whether u/s 15 of the Punjab Pre-emption Act, as amended by the Punjab Pre-emption (Amendment) Act, No. 10 of 1960, the words "son or daughter" occurring in Sub-Section 2(b) include illegitimate son and illegitimate daughter.

On behalf of the vendees Appellants, it has been contended, to begin with, that in the Punjab the right of pre-emption has been co-related with the right of succession, with the result that if under Hindu Law an illegitimate son and an illegitimate daughter are not entitled to succeed, then they cannot be held to be entitled to pre-empt a sale effected by their parents. In this connection, our attention has been drawn to unamended Section 15 of the Punjab Preemption Act, which is in the following terms:

Person in whom right of pre-emption vests in sespect of sales of agricultural land and village immoveable property.

Subject to the provisions of Section 14 the right of pre-emption in respect of agricultural land and village immoveable property shall vest--

(a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold:

(b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly,--

firstly, in the lineal descendants of the vendor in order of succession;

secondly, in the co-sharers, if any, who are agnates in order of succession;

thirdly, in the persons, not included under firstly or secondly, above, in order of succession, who, but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold;

fourthly in the co-shares;

(c) if no person having a right of pre-emption under Clause (a) or Clause (b) seeks to exercise it,--

firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors;

secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate;

thirdly, in the owners of the estate;

fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property;

fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated.

Explanation: In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word ''agnates'' in this section shall mean the agnates of the person through whom she has so succeeded.

It is submitted by Mr. Gandhi that the basic principle underlying this section is that the property should primarily remain with the legal heirs of the vendors and failing them with the co-sharers, in the absence of the heirs and the co-sharers, the superior and inferior proprietors come on the picture, and, after them, the owners of the patti or other sub-division of the estate, within the limits of which the land or property is situated, are given the right to pre-empt. After them come the owners of the estate, followed by the occupancy tenants of such land or property. Lastly, the tenants having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated have been given the right to pre-empt the sale. It is contended that the scheme of the section shows that outside the line of heirs and the co-sharers it is the persons, who are connected either with the proprietary body in the estate or with the cultivation of the land in the estate, who have been given this right. Referring to the explanation, it is emphasised that in case of a sale by a female of the property to which she has succeeded on a life tenure through her husband, son, brother or father, it is the agnate relation of the last-male holder, who is to be traced for the purposes of interpreting the word ''agnate'' as used in the section. Reference is then made by the counsel to Section 3(j) of the Hindu Succession Act, where the word ''related'' has been denned to mean related by legitimate kinship. The counsel in the course of arguments also referred to page 921 of Rattigan''s Digest, where the learned author has recorded some introductory remarks on the origin of the law of pre-emption in the Punjab, but when it was pointed out to the counsel that these observations could be of little or no assistance in ascertaining the intention of the Legislature in enacting Section 15 of the amended Punjab Pre-emption Act, he dropped this line of argument. Mr. Gandhi then adverted to the amended Section 15, which is in the following terms:

Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property.

15.(1) The right of pre-emption in respect of agricultural land and Village immovable 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) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly,--

first, in the sons or daughters or sons'' sons or daughters'' sons of the vendor or vendors;

secondly, in the brothers or brother''s sons of the vendor or vendors;

thirdly, in the father''s brothers or father''s brother''s sons of the vendor or vendors;

fourthly; in the other co-sharers;

fifthly, in the tenants, who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;

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

first, in the sons or daughters or sons'' sons or daughters'' sons of the vendors;

secondly, in the brothers or brother''s sons of the vendors;

thirdly, in the father''s brothers or father''s brother''s sons of the vendors.

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

(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 son;

(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 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 preemption 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.

The counsel submitted that the Legislature has in this section selected only some of the heirs of the vendor for the purpose of conferring the right of pre-emption on them. He argued that if an illegitimate son or illegitimate daughter has not been included by the Legislature in the list of those heirs, who are selected for the purpose of conferring on them the right to pre-empt the sale, then Courts cannot, by process of interpretation, confer such a right on them. He has developed this point by submitting that, normally speaking, the words ''son or daughter'' are designed to, and indeed must refer to, legitimate offspring. Rules of public policy, according to the counsel, demand that in societies, where sanctity is attached to the institution of marriage, the expressions ''son and daughter'' must prima facie, and without anything to suggest to the contrary, be construed to mean legitimate son and daughter. A passing reference was also made to a Full Bench decision of this Court in Sardha Ram v. Haji Abdul Majid, etc. 1960 P.L.R. 201, in which clause sixthly of Section 16 of the Punjab Pre-emption Act, 1913, was held to be valid and intra vires and it is contended that the restrictions placed by the law of pre-emption were in that case held to be reasonable for the reasons, inter alia--

(1) that it preserved the integrity of the village and the village community, a id

(2) that it implemented the agnatic theory of law.

From this, the learned Counsel has concluded that if these be the objects of the law of pre-emption, then the expressions ''son and daughter'' must be construed to mean only legitimate son and daughter.

As against this, Shri D.C. Gupta, learned Counsel for the Respondent, has submitted that previous to the amendment of Hindu Law also sales by woman of stridhana could be pre-empted by an illegitimate son, who, according to him, was entitled to succeed to his mother. Our attention has been invited by the learned Counsel to Yeditha Venkanna Vs. Nakka Narayanamma and Others, where it is laid down that:

Neither the language of the Mitakshara text nor the application of any reasonable rule of interpretation would justify the exclusion of the illegitimate children of a Hindu married woman from succeeding to their mother''s estate. Illegitimacy is no bar to succession to woman''s stridhana. Whatever may be the rules regarding succession of illegitimate sons to their putative father''s property, in so far as illegitimate stridhana heirs are concerned, either daughter or daughter''s daughter, son or son''s son, they would be entitled to succeed to their mother''s estate in preference to the other heirs. All the illegitimate children of a woman take in accordance with Hindu Law, the daughters first; and failing them the sons, and that if a woman has a legitimate daughter and an illegitimate daughter, they will both, in conformity with the ancient Hindu texts, take equally.

Counsel has also drawn our attention to Mulla''s Hindu Law, para 163. In this para, it is stated that the illegitimate children of a Hindu woman are not excluded from inheritance to their mother''s stridhana. But when a woman dies leaving both legitimate and illegitimate children, the legitimate are preferred to the illegitimate. The counsel has developed his argument by submitting that if before the recent amendment of Section 15 all persons entitled to succeed could pre-empt and, as laid down in para 163 of Hindu Law by Mulla and in the Madras authority just cited, an illegitimate son is entitled to succeed to the stridhana of his mother, there is no justification for construing the words ''son or daughter'' as used in the amending Act to exclude illegitimate son and illegitimate daughter because under the Hindu Law they are also entitled to succeed to their mothers so far as stridhana is concerned. In this connection, it has been emphasised that the land sold in the instant case was the stridhana of Shrimati Prem Parkash Kaur, because she got this property from her husband. Reliance, in this connection, has been placed on paras 125 and 130 of Mulla''s Hindu Law. As a matter of fact, on behalf of the Respondent also, reliance has been placed on the same argument, which was advanced by Mr. Gandhi, and it has been submitted that if right to pre-empt is co-related to the right to succeed, then notwithstanding the selection of a limited number of such heirs in the amended Section 15, the word ''son'' should not be construed to exclude an illegitimate son, because the latter is, under the Hindu Law, entitled to succeed to the stridhana of his mother and would thus fall in the list of heirs so far as stridhana is concerned. The counsel has also, in this connection, sought support from the proviso added to Section 3(j) of the Hindu Succession Act, where it is stated that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly. The counsel has contended that in so far as the mother is concerned, her illegitimate children are to be deemed to be related to her and, therefore, when the words ''son or daughter'' are used in Section 15 of the amended Act, they must be construed in a wider sense so as to include illegitimate son or daughter, when the the vendor happens to be mother of the son or daughter as the case may be. The counsel then made a passing reference to Shrimati Sunder Devi and Anr. v. Jhappo Lal and Ors. AIR 1957 All 215, where a Single Bench of the Allahabad High Court held that where a Muslim woman is converted to Hinduism, she is classed as a Sudra and her illegitimate children would inherit the property of their mother which was her stridhana at the time of her death, and it is suggested, though faintly, that in the present case, Shrimati Prem Parkash Kaur being a jat her illegitimate children would apparently be entitled to succeed to her. While dealing with the Appellant''s contention that by the rules of pre-emption the property is intended by the Legislature to be retained in the family, and that an illegitimate child of the female vendor cannot be considered to be a member of her family, the counsel for the Respondent has asserted that he would be a member of her mother''s family and has also, by way of illustration, posed the question whether or not a woman''s pichh lag son would fall within the nomenclature of the vendor''s son, if her mother were to alienate the property inherited by her from her second husband. The counsel has answered the question posed by submitting that the word ''son'' would, obviously include the son of the lady from her previous husband. He has also contended that the Legislature has in the amended section not conferred this right of pre-emption on the first few heirs of the vendor in their serial order, but has merely selected the vendor''s sons, daughters, their sons, and the brothers and father''s brothers and their sons. According to the counsel, the father comes as an heir at No. 1 in class 2 of the schedule to Section 8 of the Hindu Succession Act, but he is not given the right to pre-empt the sale by his son, whereas the father''s brother, who comes at serial No. VII in class 2 has been given that right. Father''s brother''s son, however, has also been given the right, though his name neither occurs in class 1 nor in class 2 of the schedule. The counsel thus submits that it is not correct to impute to the Legislature the intention of conferring the right of pre-emption only on the immediate heirs of the vendor.

I have given my most anxious thought to the arguments addressed at the Bar. Before, however, dealing with the respective contentions of the counsel for the parties, it is desirable to state some of the basic rules relating to the law of pre-emption and the interpretation of statutes. It is by now settled beyond dispute that the right of preemption is an aggressive right. As laid down in Rati Ram and Ors. v. Mam Chand and Ors. AIR 1959 P&H 117, right of pre-emption is a piratical right and it imposes a restriction on the right of the owner to transfer his property to whomsoever he likes. It operates as a clog on the right of the owner to sell his property to a person of his own choice and thus must be strictly construed.

One of the foremost rules of guidance in interpreting statutory instruments is to try to get at the intention of the legislature as expressed by the words used. From the imperfection of the language at time it becomes impossible to know what that intention is without enquiring further and seeing what the circumstances were with reference to which the words were used and what was the object appearing from those circumstances, which the persons using them had in view, for, the meaning of words vary according to the circumstances with respect to which they are used.

In the case in hand, we are, strictly speaking, directly concerned only with Sub-section (2)(b) of the amended Section 15, but the whole of Sub-section (2) is concerned with sales by females in particular and this Sub-section operates notwithstanding anything contained in Sub-section (1). Now, reading Sub-section (2) as a whole, the predominant idea, which is discernible from its language, seems to be that the Legislature has confined the right of pre-emption to the issue of the last male-holder from whom the sold property, in fact, came by inheritance. In Clause (a) of Sub-section (2), where the property sold by female has come to her from her father or brother by succession, the right of pre-emption has been made to vest in her brother or brother''s son. It is true that the female vendor''s father has not been given the right to pre-empt, but this does not, in any way, affect the question we are called upon to determine. The predominant idea, as the language of Clause (a) discloses, appears to be that the property must not go outside the line of the last male-holder, and the right is given to his male lineal descendant. Where the sale is by the son or the daughter of such female, the right is similarly given to the same degree of relations, for example, the female-holder''s brothers or their sons. These provisions, to some extent, do indicate the principle which the Legislature seems to have kept in view while enacting Sub-Section 2(a) and that is that the person on whom the right of pre-emption is conferred must be a male lineal descendant of the last male-holder of the property sold, though the right is not extended beyond second degree. Here, it would not be irrelevant or out of place to state that in the Hindu Succession Act, reference to a brother and sister in schedule do not include brother and sisters by uterine blood. Since Sub-section (2)(a) postulates succession of the female vendor to her brother, in my opinion, it is legitimate and permissible to construe the reference to the female vendor''s brother in the same sense in which brother and sisters are understood in the Hindu Succession Act. The new legislation, as is sometimes stated, usually ties itself to past experience and prior enactments and consistency of purpose and continuity of regulation might well, generally speaking, be assumed.

Coming to Clause (b), here if a female has succeeded through her husband or through her son, who has already succeeded his father, to the property sold by her, the right of pre-emption is made to vest in the son or daughter of such female, which in my opinion, should be held to have been intended to be the son or daughter from her husband, from whom the property actually came. By placing the construction suggested on behalf of the Respondent, we would be imputing to the Legislature inconsistency or arbitrariness, which, in my humble opinion, could not legitimately have been intended. In the enactment of a statute, it would be permissible to presume that the framers of law did not act blindly or arbitrarily, but that they had in mind a reasonable, consistent and intelligible plan or scheme for the achievement of the legislative purpose. Such a plan or scheme, as is discoverable from the statutory language, may always be taken into account in interpreting the statutes. Now, it is clear that the legislative scheme in enacting Sub-section (2) of Section 15 is that it is only the sale by a female of the property which has come to her by succession from her father, brother or husband, that is made pre-emptible; in the case of her husband''s property, the same may have come to either directly or through her son, and here there can hardly be any doubt that reference to the son means her son from her husband, whose property has come to her by succession. The Legislature has selected for conferring this right, the female vendor''s brother or his son, her husband''s brother or his son and her son and daughter. It is indisputable that, except in the case of her son and daughter, the other persons on whom this right has been conferred are clearly and without doubt those who are related by blood to the original owner of the property. The question which thus poses itself is, should the Legislature have in the case of son or daughter of the female vendor as contemplated in Sub-section (2)(b) Firstly of Section 15 intended to confer the right of pre-emption on her illegitimate son or daughter as well? Now, her son or daughter have been given preference in the exercise of this right even over the female vendors husband''s brother''s son. Keeping in view the scheme of Sub-section (2), so far as it is discernible and has been stated by me earlier, I find it exceedingly difficult to impute this intention to the law-giver. On the construction, which I am adopting even a pichh lag son would, obviously, be disentitled to exercise the right of pre-emption, but on that point it is hardly necessary to express any considered opinion in the present case. I would, therefore, be inclined to hold that the ''son and daughter'', mentioned in the First clause of Sub-section (2)(b) of amended Section 15 mean the son and daughter of both the female vendor and her husband, whose property is the subject-matter of the sale, which is sought to be pre-empted.

On behalf of the Respondents, it was contended that Section 15 is meant to apply to persons of various religious faiths and it would not be proper to construe Section 15 in the light of what is stated in the Hindu Succession Act. In my opinion, this objection has no validity. It is primarily from the language of Sub-section (2) that the legislative scheme has become discernible.

Shri D.C. Gupta next contended that the construction suggested on behalf of the Appellant would operate unjustly to the illegitimate sons and daughters of the female vendor, because they would be deprived of their right of pre-emption without any justification and without any fault on their part. This contention is completely devoid of merit. There is no question of any hardship or any occasion for equitable considerations in construing the law of pre-emption, and indeed this argument is wholly unsustainable in view of the recent observations of the Supreme Court in Radhakisan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and Ors. Civil Appeal No. 167 of 1955. Speaking on behalf of the Court in the above case, Kapur J. stated:

...There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statutes.

It must never be forgotten that prima facie any restriction on a citizen''s right to dispose of his property is unconstitutional and it is only in exceptional circumstances that such a restriction is upheld on the ground of reasonable restrictions, as contemplated by Article 19 of the Constitution. In this view of the matter, all restrictions must be strictly construed and unless there is a compelling reason and a clear case is made out such restrictions must not be interpreted more widely than the circumstances and the object of the Legislature justify.

Before concluding, it may be stated that there are some decided cases both Indian and English, where while construing testamentary instruments Courts have construed references to children and issues, to mean legitimate children and legitimate issues. But, in all those cases, Courts really tried to gather the true intention of the author of the instrument by taking into account all the relevant surrounding circumstances. As a matter of fact, in our country, there is a specific provision in the Indian Succession Act, which lays down that:

In the absence of any intimation to the contrary in a will, the word ''child'', the word ''son'', the word ''daughter'', or any word which expresses relationship, is to be understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the will the reputation of being such relative." (See Section 100).

The principal underlying this section apparently appears to be that the rules of Public policy do not encourage illegitimacy with the result that there is a general reluctance to treat illegitimate children at par with legitimate children. For our present purpose, however, cases of Wills are hardly of any material assistance; I need, therefore, say nothing more with regard to such cases.

In view of this discussion, in my opinion, the words ''son or daughter'' as used in Section 15(2)(b) of the Punjab Pre-emption Act as amended in 1960 cannot be held to include an illegitimate son or daughter of Shrimati Prem Parkash Kaur. As a consequence, this appeal must succeed and the judgments and decrees of the Courts below set aside, and the Plaintiff''s suit dismissed. I order accordingly. As the question was not free from difficulty, the parties are left to bear their own costs throughout. In view of our decision the Cross Objections also fail but with no order as to costs.

D.K. Mahajan, J.

I agree.