Ram Chand and Another vs Parman and Others

R.S. Pathak, C.J.—This is a Defendants'' second appeal arising out of a suit for possession by pre-emption.

On May 18, 1964 Gian Chand executed a sale-deed of the property in dispute in favour of the Appellants. The Respondents filed a suit, out of which the present appeal arises, claiming to be reversionary of the vendor and asserting that they were not bound by the sale transaction on the death of the vendor inasmuch as the sale was without consideration and legal necessity. Alternatively, they claimed possession of the property by preemption on the ground that they were agnates of the vendor and co-sharers in the property. During the pendency of the suit the Respondents rested their claim entirely on the basis of the right of pre-emption. The trial-court decreed the suit, holding that the Respondents enjoyed the right of pre-emption claimed by them. An appeal against the decree has been dismissed by the learned Additional District Judge, Kangra by his judgment and decree dated October 10, 1969. And now this second appeal.

Section 15 of the Punjab Pre-emption Act, 1913, as it stood before its amendment in 1960, provided:

Subject to the provisions of Sections 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, the 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;

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 estate;

Fourthly, in the case of a sale of the proprietary right in such land or property in the tenants (if any) having rights to the 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.

On March 6, 1917 Notification No. 4669 was issued, providing:

In the District of Kangra, the right of pre-emption in respect of agricultural land and village immovable property shall be limited-

(1) in the case of a sale falling under Clause (a) of Section 15 to the person mentioned in the said clause;

(2) in the case of a sale falling under Clause (b) of Section 15 to the persons mentioned in the sub-clause firstly, secondly and thirdly of the said clause;

(3) the person mentioned in sub-clause fourthly of Clause (b) and Clause (c) of Section 15 shall not exercise any right of pre-emption in respect of sales described in this notification".

It is apparent from reading the notification with Section 15 set out above that while it preserves the right of pre-emption conferred by Clause (a) of Section 15 and the first, second and third sub-clauses of Clause (b) of Section 15 on the class of persons mentioned therein, it removes the right of pre-emption from the class of persons mentioned in the fourth sub-clause of Clause (b) of Section 15 and in Clause (c) of Section 15. In other words, while agnate co-sharers continued to enjoy the right of pre-emption, co-sharers falling in the residuary fourth sub-clause of Clause (b) did not.

In 1960, the original Section 15 was replaced by a new provision, which is set forth below:

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

(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 sons 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 pre-emption 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.

It will be noticed that unlike Clause (b) of the original Section 15, Clause (b) of the new Section 15(1) did not separately provide for agnate co-sharers and they were all included in the residuary fourth Sub-clause.

It was contended before the lower appellate court that by reason of the notification dated March, 6, 1917 the Respondents were excluded from exercising the right of pre-emption inasmuch as they were co-sharers falling in the fourth sub-clause of Clause (b) of the new Section 15, and reference to the notification shows that the persons mentioned in the fourth sub-clause of Clause (b) Section 15 were deprived of the right of pre-emption. The lower appellate court has held that the notification did not result in taking away the right of pre-emption enjoyed by the agnate co-sharers under the original Section 15 and it did not have that effect even after the enactment of the new Section 15. Accordingly he upheld the view taken by the trial court that the Respondents had a right of pre-emption and dismissed the appeal.

Learned Counsel for the Appellants urges that the view taken by the lower appellate court is erroneous, and reliance is placed on Kalu Ram v. Madho Ram ILR 1972 Him. 63. The question considered in the case was whether the notification dated March 6, 1917 survived the substitution of the original Section 15 by the new Section 15, and therefore whether it could be read so as to apply to the provisions of the now Section 15. The learned Judges took the view that the notification still held good and could be read with the re-enacted Section 15. They also specifically observed that the right of pre-emption conferred on an agnate co-sharer was taken away by the amended Section 15. A perusal of their judgment shows that they were not concerned with a claim to pre-emption made by agnate co-sharers. The observation, it seems to me, must be construed as a mere obiter.

The point raised in this appeal can be disposed of shortly. The notification of 1917 dealt with the classes of persons mentioned in the original Section 15, and as has been mentioned above, it did not exclude the right of pre-emption enjoyed by aguate co-sharers by virtue of the second sub-clause of Clause (b) of the original Section 15. What it did, inter alia, was to deprive those co-sharers of the right of pre-emption who fell in the fourth sub-clause of Clause (b) of that section. If the notification can be said to apply to the new Section 15 also a point on which I need express no opinion here then having regard to its original intent it cannot be construed as depriving the agnate co-sharers of the right to pre-emption, notwithstanding that they are new included in the fourth sub-clause of Clause (b) of Section 15(1). The scope of the notification cannot be enlarged; it must continue confined to its original limits. It is clear from a comparison of the corresponding provisions of the original Section 15 and the new Section 15 that the classes of persons set out in the different sub-clauses of the two sections have been re-assembled. In other words, classes of persons mentioned in the provisions of the original Section 15 do not correspond exactly with the classes of parsons mentioned in the corresponding sub-clauses of the new Section 15. It is necessary that reference be made to the classes of persons under the original Section 15 for the purpose of determining which of those classes were intended to be deprived of the right of pre-emption by the notification. When issued in 1917, the notification did not exclude agnate co-shears. If the notification can be read with the new Section 15, that intention must be given effect to, and the notification must be so applied in relation to the new Section 15 that agnate co-sharers are not excluded from the right of pre-emption. To accept the contention of the Appellants that agnate co-sharers are now also deprived of the right of pre-emption on the enactment of the new Section 15 would be to give effect to an intention in the notification of 1817 which was never originally present there.

I am of opinion that even if the notification of 1917 can be said to apply to the new Section 15 of the Punjab Pre-emption Act, 1913, it does not have the effect of depriving agnate co-sharers of the right of pre-emption.

It is not necessary for me to express any opinion in this case whether the notification of 1917 survives the repeal of the original Section 15 and its replacement by the new Section 15. If the notification does not survive, it is apparent that without anything more the Respondents as co-sharers would be entitled to the right of pre-emption under the fourth sub-clause of Clause (b) of the new Section 15.

Accordingly, the appeal has no force and is dismissed. But in the circumstances, there is no order as to costs.