Partap Singh and Others vs Vidya Devi

V.P. Bhatnagar, J.—The facts, out of which the present Regular Second Appeal has arisen, are that one Smt. Kubja transferred by sale her half share in the land in dispute in favour of Defendants-Appellants. Vidya Devi, Plaintiff-Respondent, instituted a suit for possession by preemption. She claimed superior right of preemption on the ground of relationship (being the daughter of Smt. Kubja) and also as a co-sharer.

Her suit was dismissed by the learned Subordinate Judge, Rajgarh, by his judgment dated July 18, 1984, but the appeal preferred by her was accepted by the learned District Judge, Solan and Sirmaur Districts at Nahan, vide impugned judgment announced on December 30, 1986. Hence, the present Regular Second Appeal.

The main point which requires determination in this appeal is as to whether the Respondent has a superior right of preemption notwithstanding the ratio of the decision handed over by the Supreme Court in Jagdish and Others Vs. Nathi Mal Kejriwal and Others, .

Miss Kamlesh Sharma, learned Counsel for the Respondent, has taken me through the provisions of Section 15 of the Punjab Pre-emption Act, 1913, as applicable to the State of Himachal Pradesh, and has tried to distinguish the law laid down in Jagdish v. Nathi Mal Kejriwal (supra) on the ground that Vidya Devi, in her capacity as a vendor''s daughter, claimed her right of pre-emption u/s 15(2)(b) which is a specific provision pertaining to the sale made by a female of land or property to which she has succeeded through her husband, and not u/s 15(1)(b), clauses First, Secondly and Thirdly of which have been declared ultra vires the Constitution and clause Fourthly of which has been interpretted by the Supreme Court so as to exclude those co-sharers who also fall under the first three clauses on the ground of consanguinity. Thus, the argument is that Vidya Devi is not a co-sharer who falls under the clauses First, Secondly and Thirdly of Section 15(1)(b) and, therefore, she would be deemed to be included in "other co-sharers" as given in clause Fourthly thereof.

The argument, as stated above, does appear to be somewhat attractive but, in my opinion, cannot withstand close scrutiny. This is because the rationale behind excluding co-sharers who fall under clauses First, or Secondly, or Thirdly of Section 15(1)(b) is that they are also related to the vendors in a manner so as to be entitled to claim pre-emption. Such non-alienating co-sharers have been held not to have any right of pre-emption. If so, there appears no good reason why the co-sharers who are covered u/s 15(2)(b), should also not be excluded from the list of those co-sharers who can pre-empt. In other words, co-sharers who are entitled to pre-empt would only be those who are not related to the vendor and cannot come forward to pre-empt on the ground of consanguinity. This being not the case with respect to Vidya Devi, I am of the opinion that she has no longer any superior right of pre-emption vested in her and, therefore, she must fail in her suit for possession through pre-emption.

As a sequel, this appeal is accepted and the impugned judgment and decree of the learned District Judge set aside. The parties are, however, left to bear their own costs.