Santa Singh vs Hazara Singh and Others

D.K. Mahajan, J.

This second appeal is directed against the concurrent decisions of the Courts below decreeing the plaintiff''s suit for pre-emption. The plaintiff claimed pre-emption on ground of his relationship with the vendors and on the ground of co-share ship. In order to appreciate the various contentions that arise in this appeal, it will be proper to set out a short pedigree-table :

Roda Singh had left a pichhlag son Hazara Singh who is the plaintiff pre-emptor. The sale in dispute was by the window of her share, the shares of her minor son and two minor daughters in one-half of the land.

Measuring 49 kanals and 12 marlas in Khatauni No. 318, 319, Khewat No. 131. It was held by the trial Court that Hazara Singh could not claim pre-emption on the ground of relationship but he being a co-sharer with the vendee in the land sold was entitled to a decree for pre-emption. Accordingly the plaintiff''s suit was decreed. The appeal against this decision by the vendee also failed. It is against this decision that the present second appeal has been preferred.

Mr. Narinder Singh in the first instance raised a contention that Sant Singh vendee was a co-sharer with the vendors as well as the pre-emptor and therefore the latter had no superior right of pre-emption, his status being equal to that of the vendee. This contention is wholly devoid of force because in his own statement, Sant Singh admitted that he was not a co-sharer of the land in dispute. Initially the land in dispute was purchased by Sant Singh, Kartar Singh and Hazara Singh jointly. Sant Singh sold his share to Kartar Singh and Hazara Singh and under the present sale in dispute he acquired back his share which he had earlier sold. Therefore in this situation it cannot be held that the entry in Exhibit P. 1 showing him as co-sharer with the pre-emptor and the vendors is correct. Therefore the decision of the trial Court to the effect that Hazara Singh plaintiff has a superior right of pre-emption must stay.

Mr. Narinder Singh then raised a contention which had not been advanced in either of the Courts below. The contention is that the sale in the present case was by three females and one male. With regard to the sale by the females the right of pre-emption can only be exercised by persons referred to in section 15 (2) of the Punjab Pre-emption Act and not by those mentioned in Section 15(1). It is conceded by him that so far as the sale of the share of the son is concerned that would be pre-emptible. According to him a decree for pre-emption can only be passed with regard to one-fourth of the land sold on payment of proportionate price of this share. As regards the three-fourths of land sold no pre-emption decree could be passed. The scheme of section 15 of the Act is that it vests a right of pre-emption with regard to agricultural land and village immoveable property on certain specified persons and that too with reference to the sale by a particular type of person. The first type of person is a sole owner. We are not concerned in this case with a sale effected by a sole owner. The second type of person is a co-sharer and the sale is of land by him out of the joint holding. The third type of person is the co-sharer and the sale of land jointly held by them. The trial Court was merely concerned with the sale by a second type of person and it is on that basis that the trial Court decreed the suit and that decree was upheld in appeal.

Mr. Narinder Singh contends that section 15(1) of the Act has no application and the case falls u/s 15(2). The opening words of section 15(2) are "notwithstanding anything contained in sub section (1)". Then there are two categories of sales dealt within clauses (a) and (b). The first category of sale dealt with is by a female of land or property to which she succeeds through her father or brother. The second type of sale is by a female where she succeeds through her husband or through her son. It is common ground that if the present sale is a sale under sub-section (2) of section 15 the plaintiff pre-emptor has no right to pre-empt. The plaintiff pre-emptor will have only a right of pre-emption if the sale is of second type under sub-section 15(1). It is well-known cannon of construction of statutes that a specific provision will exclude a general provision. It is also obvious that what was being sold under the sale deed were their own respective shares by each of the owners and admittedly they could not sell land belonging to somebody else and could only sell their own holdings. In this view of the matter the sales must be treated so far as the three females are concerned by them u/s (15)2 and once they are treated as sales by them u/s 15(2) they cannot be pre-empted by the pre-emptor. He can only pre-empt the sale by the male owner u/s 15(1) and that has been conceded by Mr. Narinder Singh. The result, therefore, is that this appeal is allowed, the decree of the Courts below is modified and the plaintiff''s suit is decreed only to the extent of one-fourth on payment of the proportionate price of the sale consideration. The suit with regarded to three-fourths of the land sold stands dismissed. As this contention was not raised in the Courts below the parties will bear their own costs throughout.