Mt. Shanti vs Walaiti Ram

Teja Singh, C.J.—This appeal arises out of a pre-emption case. A sale of 41 bighas & 7 biswas of agricultural land was made by Chet Rarn, Chanan Ram. Hari Ram & Chiranji Lal, sons of Nathu Ram, to Walaiti Ram for Rs. 2,800. Mt. Shanti, wife of Chanan Ram pre-empted the sale. Her position was that she was an heir of the vendors & since the vendee was a stranger she bad the pre-emptive right. The suit was resisted by (sic) Ram. In the first place he denied that the pltf. had the right to pre-empt & secondly he urged that the suit was collusive. The trial Ct. found against the contesting deft. as regards the collusive nature of the suit but accepted his plea that the pltf. was not an heir of the vendors & she had no right to maintain the action. Accordingly it dismissed the suit. The pltf. after having unsuccessfully appealed to the Dist. J. preferred a second appeal in the H.C. The learned single Judge maintained the decisions of the Cts. below & dismissed the appeal but certified that it was a fit case for appeal to a D.B.; hence this appeal by the pltf.

Both sides are agreed that the case is governed by of Clause (a) of Section 15, Pre-emption Act, which law down that subject to the provisions of Section 14 the right of pre-emption in respect of agricultural land & village Immovable property shall vest, where the sale is by a sole owner of 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.

The vendors are Brahmans & the land sold was owned by them jointly. The lower Cts. have taken the view that since they were governed by Hindu Law & they constituted a joint family, according to the principle of survivorship the pltf. who is the wife of one of them, could not inherit the land, not even the share of her husband, & accordingly she could not successfully pre-empt the sale. That the vendors are governed by Hindu Law cannot be denied. Apart from the fact that they are high class Hindus & the presumption is that their personal law applies to them, it was not even alleged by the pltf. that they were governed by custom. Shri Atma Ram, learned Counsel for the pltf. applt. made an effort to challenge the finding of the Cts below that the vendors constituted a joint Hindu family & with a view to showing that they were separate from one Anr. , he drew our attention to the entries in the revenue records in which the share of each vendor was specified. I am inclined to think that since the presumption in case of every normal Hindu family is in favour of jointness, it was for the pltf. to allege & prove that in this case the vendors family had disrupted, but she did nothing of the kind. Specification of share in the revenue papers does not raise any presumption of separation, because it is common knowledge that even in case of persons who admittedly constitute a joint Hindu family, the revenue authorities specify their shares probably with a view to make them individually liable for their respective shares of land revenue. It is, however, unnecessary to pursue this matter further, because as I shall show hereafter, even if it be taken for granted that the vendors were not members of a joint family & each one of them was a complete owner of his share, this would not make any difference regarding the pltf''s. right to preempt the sale, which I have already pointed out is the joint sale by all of them.

Now as regards the operation of Section 15, Clause (a). The words of the clause clearly show that only those persons are entitled to pre-empt a sale jointly made by all the co-sharers of a joint property who would have got the property if no sale had taken place & the vendors had died. In order to find out who these persons are, all we have to do is to suppose for a moment that the vendors are dead & the property belonged to them at the time of death. The persons to whom the property would in that case go according to the law by which the vendors are governed, are the persons who can pre-empt the sale. It must here be pointed out that the section confers the right of pre-emption upon the whole line of heirs of the vendors & not merely on the nearest heir at the time of sale, though the priority of right between the claimants is to be determined according to the order of succession. Reference in this connection may be made to the dictum of their Lordships of the P.C. in Sabz Ali Khan v. Khair Muhammad Khan 3 Lah. 48 : AIR 1922 P.C. 139. That was a case u/s 12, Clause (a), Punjab Pre-emption Act, II [2] of 1905, which read as follows:

In the case of the sale of such land or property by a sols owner or occupancy tenant, or, when such land or property is held jointly by the co-sharers, in the persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession.

This is what Lord Buckmaster observed:

It is important to notice that the section does not contemplate merely inheritance by one person, or even by a group of people, who at the critical moment would be together equally entitled to inherit the property sold, if the vendor were dead, but it assumes that there will be different priorities as between the different claimants & that such priorities shall be determined In due order of succession.

The other point which must be emphasized is that the right given to each share-holder is a several right & not a joint right of all the heirs. In cases governed by Clause (a) of Section 12, Punjab Pre-emption Act, II [2] of 1905, some difficulty was felt on this point & it was argued that the right given by the clause could only be exercised by all the heirs jointly. Sir Shadi Lal discussed this aspect of the matter in his well known commentary on the said Act, but observed that if all the heirs did not join in bringing a suit it was open to some of them to sue. His observations are:

These words (''in the persons'' in Clause (a) of Section 12, Pre-emption Act, 1905) are likely to cause a good deal of difficulty in practice. Do they mean that two or more persons who have equal rights as heirs, must corns in jointly; & if they do not come in jointly, one of them has not locus standi to sue. To put a concrete case, suppose the vendor has four sons who are entitled to succeed equally. Three of them do not bring a suit, but one of them does. Is his suit going to be dismissed, because the right vests in all the heirs.... It seems to me that the difficulty could have been avoided by introducing in this clause the provision as to the right being exorcised severally, in case it is not exercised jointly. Such a provision is absolutely essential in all cases in which the right vests in two or more persons jointly. But it seems to me that what the Legislature intended was that, if all the heirs are equally entitled to sue, they will get the property jointly otherwise one or more of them who sue.

In Jang Bahadur Khan v. Karam Kahan 21 P.R. 1908 : 144 P.L.R. 1908 which was also a suit to enforce a right of pre-emption on a sale of agricultural land, the vendor bad sons & brOrs. , who had not claimed to pre. empt & who were admittedly nearer in succession to the vendor than the pltf. was, it was held by the Chief Ct.:

That Clause (a) of Section 12, Punjab Pre-emption Act, II [2] of 1905, was applicable to the case & though the nearer heirs bad not sued for pre-emption, the pltf. was (sic) to sue.

It may be mentioned that Section 15 of our Act is in identically the same terms as Section 15, Punjab Pre-emption Act, I [1] of 1913, which replaced the Punjab Act of 1905. In Clause (a) of Section 15, words "in order of succession" were inserted, after the words "in the persons" obviously with a view to meet the difficulty pointed out by Sir Shadi Lal, & there cannot be the slightest; doubt now that if heirs with better right do not come forward to exercise the right, it is open to a remote heir to sue for pre-emption.

The right of pre-emption being the right of a person to acquire property in preference to other persons, it follows from all that I have said above that if the pre-emptor & the vendee are both heirs of the vendor, the pre-emptor must succeed if his right to inherit under Clause (a) is superior to that of the vendee. That there are in existence other heirs of the vendor or vendors nearer than the pre-emptor & the vendees & they have not come forward to exercise the right of pre emption, is entirely immaterial. The Ct. is only concerned with the comparative rights of the pltf. & the vendee & if the pltf''s right to inherit is superior to that of the vendee, his suit must be decreed. If the pltf is one of the heirs of the vendor or vendors, but the vendee is an utter stranger with no right of inheritance whatsoever, the fact that the former is a remote heir cannot prevent him from pre-empting the sale.

Mohd Ali Khan v. Mt. Zewar Nisa AIR 1942 Pesh 22 : 199 I.C. 353 was also a case u/s 15, Punjab Pre-emption Act, I [1] of 1913. The following remarks made by the learned Judge support the view that I have taken:

It is an accepted principle of law that when deciding the question of the superiority of the right of preemption under Clause (b) thirdly, the Cts. have only to keep in view the pltf. & the vendee & no other relations of the vendor. They have to take it that the vendor has died & have to find out as to who of the parties before them the pre-emptor & the vendee - is entitled to inherit his property to the exclusion of the other. the person who is so entitled has a superior right of preemption.

The words of Clause (b) thirdly of Section 15, Punjab Act, are similar to those of Clause (a): the difference between the two is that while the latter relates to the case of a sale by a sole owner or by all the joint owners when the property is owned by more than one person, the former relates to the sale by a co-sharer of his own share. As regards the right of the vendor''s heirs to sue for pre-emption, there is no difference between the two clauses & consequently the principle enunciated above applies with equal force in the case of a sale by all the co-sharers of a property jointly. This means that what has to be determined in the present case is whether the pltf. is one of the heirs of all the vendors or of any one of them. For this we must turn to the provisions of the Hindu Law. I concede that she was not a member of joint Hindu family with her husband & other brOrs. & so she could not claim the right to succeed to them by virtue of survivorship. This, however, does not mean that she would have no right of inheritance in any case. As was pointed out in the Peshawar case, we should suppose that none of the heirs of the vendors, excepting the pltf. was in existence & we are then to find out whether if the vendors were to die, the pltf. would have a right to inherit the land. The existence of the joint family would have no bearing at all, since if the vendors were to die & we had to suppose that all their heirs except the pltf. were also dead, the right of inheritance will have to be determined in respect of the shares of the vendors.

As regards the share of the pltf.''s husband I see no difficulty at all, because Hindu Law recognizes her as an heir to him. The fact that when a man dies his widow is entitled to a life tenure, cannot make any difference. See in this connection Mt. Ishar Devi v. Sheo Ram 5 Lah. 435 : AIR 1925 Lah. 83 wherein it was held that a woman is not pre eluded from maintaining a suit for pre-emption if she is by law entitled to inherit even though it may be to a life estate.

What we have now to consider is whether she is an heir even to her husband''s brOrs. . According to the Banaras School of Mitakshara, which is prevalent in this part of the country, the first to succeed to the property left by him are his Gotraja sapindas, then samanodakas & last of all come bandhus. Most of the text writers are also agreed that the wife of a sapinda is also a sapinda & for this reason the right of the widow of a Gotraja sapinda of a deceased person to inherit his property in the absence of nearer heirs is recognized in Bombay. See in this connection Lallubhai Bapubhai v. Mankuvarbhai 2 Bom. 388, where it was held that

In the Presidency & Island of Bombay the wife is a sapinda as well as a gotraja of her husband, & if he dies (without leaving a son or grandson), she, on the subsequent death of his separated sapinda, & in the absence of any specially designated heir entitled to preference, ranks in the same place in the order of succession to the property of such separated sapinda as her husband would have occupied if be were living.

This decision was affirmed by their Lordships of the P.C. in Lallubhai v. Cassibai 5 Bom. 110 : 7 I.A. 212 P.C.

A similar view was taken in Lukshmi Bai v. Jayram Hari 6 Bom. H.C.R. 152 in which it was held that wives of Gotraja sapindas have rights of inheritance co extensive with those of their husbands, & that they succeed after them, In that case, the competition was between the widow of the great-grandson of the deceased''s paternal grandfather''s grandfather, & the male heirs who were fifth in descent from the father of the same ancestor. In decreeing the widow''s claim, Melville J. referred first to Mitakshara, Ch. II, S.V. sloka 5, wherein the paternal great grandmother is declared to be an heir, & then to the opinion of the commentator, Visvesvara Bhatta, the author of the Subodhini, viz., that by a logical interpretation of the Mitakshara, the wives of all sapindas & samanodakas have rights of inheritance co-extensive with those of their husbands.

A different rule is however, followed in Provinces other than Bombay where the prevalent view is that only those females can be allowed to succeed as gotraja sapindas who are speoi6oally mentioned in the text. See in this connection the F.B. decision of the Mad. H.C. in Mari v. Chinnamal 8 Mad. 107 F.B. in which both the Bombay cases mentioned above were discussed. The question was whether under the Hindu Law which obtained in the Presidency of Madras a step-mother was entitled to succeed to the estate of the deceased in preference to the paternal uncle. The Bench answered the question in the negative. While referring to the P.C. case & after quoting a passage from the judgment of their Lordships, this is what Turner, C.J., observed:

It will be seen that their Lordships were of opinion that no certain inference was to be derived from the text of the Mitakshara, & that their decision rests on the interpretation accepted by the Bombay School & mainly on the usage prevailing in that Presidency.

The law on the point was discussed by a D.B. of the Calcutta H.C. in Jogdamba Koer v. Secretary of State 16 Cal. 367. The suit property originally belonged to a joint family consisting of two brOrs. . On the death of one brother the other became the exclusive owner according to the rule of survivorship & on his death, the property devolved on his daughter & then on his daughter''s son. When the daughter''s son died without any heir, the Govt. took possession of the property. On this the widow of the brother, who had died first, sued the Secretary of State for posseesion of the property. The learned Judges held that according to the law & usage of the Banaras School of Hindu law, a brother''s widow had no place in the line of heirs. The following observations made by them can be quoted with advantage:

The Mitakshara lends no direct support to the applt.''s contention. It divides the remoter heirs after the brother''s son into three classes, (1) the gotrajas; (2) the bandhus; (3) certain specified strangers, viz., the preceptor, the pupil, & the fellow student in the Vedas; these classes come in the order in which they are named above &, in default of all these, the King takes the property, except in the case of Brahmans.... Now the only class under which the applt. can come is the first, she being a gotraja of her husband''s brother in this sense, that she has by her marriage become of the same gotra as her husband & his brother; & she is also a sapinda of her brother-in-law according to the meaning assigned to that term in the Mitakshara. But neither the brother''s widow, nor the widow of any other collateral agnate, is mentioned as an heir.

Later on they observed:

The preponderance of reason seems to be in favour of the view that the Mitakshara is opposed to the applt.''s claim. As the P.C. observed in the case of Lallubhai Bapubhai v. Cassibai 5 Bom. 110 : 7 I.A. 212 P.C. perhaps the most that can be said is that the Mitakshara is not inconsistent with the applt.''s claim, if such claim is otherwise made out. One thing, however, is clear; the Mitakshara lends no support to the applt.''s contention that, though, in consequence of texts & decisions adverse to women''s heritable rights, the applt.''s claim has to be postponed in favour of every male heir, whether a gotraja or a bandhu, she may yet come in as an heir in default of all male gotrajaa & bandhus. It the applt. can come in as an heir at all under the Mitakshara, it must be as a gotraja sapinda; & if, therefore, her claim has to be postponed in favour of a bandhu, it must, so far as the Mitakshara is concerned, be postponed for ever. For it is only upon failure of gotrajaa that bandua inherit.

The applt.''s counsel has not been able to quote a single authority in which a brother''s widow has been recognised to be an heir under the School of Hindu Law which prevails in this part of the country. I, therefore, hold that the pltf. could only pre-empt the sale in be far as it related to the share of her husband which is one fourth & not in respect of the shares of other vendors.

As regards the price, there is no difference between the parties & since the pltf. is to get only one fourth share of the land that forms the subject-matter of the sale, the price that she will have to pay will also be one-fourth share, i.e., Rs. 700.

The result is that I would allow this appeal to the extent that I could grant the pltf. a decree for possession by pre-emption of one-fourth share of the suit land on payment of Rs 700 which shall be paid to the vendee or deposited in Ct. within two months of this date. Because of the difficult question involved in the case, I would leave the parties to bear their own costs in all the Courts. In case the pltf. fails to pay or deposit the amount during the time allowed to her, her suit shall stand dismissed with costs.

Gurnam Singh, J.

I agree.