Parja Ram vs Ganga Ram

Falshaw, C.J.—This is a second appeal which has been referred to a larger Bench by Shamsher Bahadur, J.

The suit from which the appeal has arisen was instituted by Ganga Ram respondent to pre-empt the sale of 94 Kanals 7 marlas of land and two houses by a number of vendors in favour of the appellant Parja Ram for Rs. 11,500 00 by a deed registered on the 22nd of February 1961. The plaintiff based his right of pre-emption regarding the land on the allegation that he was in occupation of 67 kanals 18 marlas of the land sold as a tenant under the vendors and he claimed that the vendors were not the owners of the houses. The plaintiff''s right of preemption was denied by the defendants and the suit was dismissed on the finding that the plaintiff had no right of pre-emption, the issue on this point being treated as a preliminary issue. However, this rinding was reversed by the learned Additional District Judge in appeal and the suit was remanded to the trial Court for a decision on the other points which arose. That order was challenged in the present appeal.

The property in dispute is situated in the village of Tappe Jassi in the Hamirpur Tehsil of Kangra District, and the finding of the trial Court that no right of pre-emption existed was based entirely on the terms of a Government notification dated the 6th of March 1916 which reads -

In the District of Kangra, the right of preemption in respect of agricultural land and village immovable property shall be limited;

(1) in the case of a sale falling u/s 15(a) to the persons mentioned in the said clause;

(2) in the case of a sale filling u/s 15(b) to the persons mentioned in sub-clauses firstly, secondly and thirdly of the said clause. The persons mentioned in sub-clause fourthly of clause (b) and in clause (c) of section 15 shall not exercise any right of pre-emption in respect of sales described in this notification.

At the time when this notification was promulgated the relevant portion of section 15 of the Punjab Pre-emption Act read-

Subject to the provisions of section 14, 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 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-sharers:

(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;

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In other words no right of pre-emption whatever was conferred by virtue of the enjoyment of tenancy rights except in clause (c) firstly, by which an occupancy tenant was given a right of pre-emption in the case of a sale by the superior owner of the land. It is in fact only as the result of an amending Act, Punjab Act, 10 of 1960, that a tenant has been granted the right of pre-emption, and this is a revolutionary change since the right is given to tenants at will, occupancy tenants having practically disappeared in consequence of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act of I9.i4. By the amendments introduced by the Act of 1960 the whole shape of section 15 has been recast, since as the result of the amendments some of the more distant relations who had rights under the old section 15 have been deprived of such rights, and as I have said there is the new departure of granting the right of pre-emption to tenants of the vendor, which is in accordance with the general policy of contemporary agrarian reforms to place ceilings on land holdings and confer proprietary rights on tenants. Section 15 in its present form reads-

(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, FIRSTLY, 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 the 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

FIRSTLY, in the sons or daughters or sons* sons or daughters'' sons of the vendor or vendors;

SECONDLY, in the brothers or brothers'' sons of the vendor or vendors;

THIRDLY, in the father''s brothers or father''s brothers'' 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 or is made by all the co-sharers jointly-

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

SECONDLY, in the brothers or brothers'' sons of the vendors;

THIRDLY, in the father''s brothers or father''s brothers'' 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 there-There is also a completely new sub-section (2) which deals exclusively with sales by females, and which has obviously been necessitated by the acquisition of full proprietary rights instead of limited rights by females resulting from the provisions of the Hindu Succession Act of 1956. It will be seen that in sub-section (1) which virtually replaces the whole of the old section 15, the old provisions of clause (c) have been completely wiped out, partly in consequence of the conversion of occupancy rights into full ownership, and the old clause (a) has been sub-divided into the present clauses (a) and (c). Moreover in sub-section (l)(a), (b) and (c) tenants at will have been given rights of pre-emption immediately below the nearest relations of the vendor to whom the right of pre-emption based on relationship is now confined. In the circumstances it would seem to be the result of a mere oversight that the notification regarding Kangra District of 1916 has not either been completely cancelled or suitably modified so as to make it applicable to the provisions of section 15 as amended by the Act of 1960. It is in fact obviously completely impossible to apply the notification to the section in its present form. If it was sought to be applied it would produce some absurd results such as that whereas a tenant, now appearing at fourthly in clause (a), would enjoy the right of pre-emption under the terms of the notification in the case of a sale by a sole owner, covered by the old (a) he would not enjoy it in a sale covered by clause (b) of a share of joint land not made by all the co-sharers jointly or covered by the new (c) which is subdivision of the old (a). In my opinion it must be held that the terms of the notification are impliedly cancelled by the amendment of the Act in 1960 and that it has become a piece of dead wood which must be ignored. The result is that I am of the opinion that the learned Additional District Judge correctly decided that the notification had ceased to have any force and that the suit was rightly remanded to the trial Court for a decision on the merits. I would accordingly dismiss the appeal, but leave the patties to bear their own costs.

Harbans Singh, J.

I agree.

Appeal dismissed.