Sarwan Singh vs Roshan Lal and Others

C.R. Thakur, J.—This second appeal arises out of a suit for possession through pre-emption filed by Roshan Lal and others in the Court of the Senior Sub-Judge, Hamirpur.

The facts briefly are that Smt. Karodhu Devi sold the land in suit to Swaratt Singh by a registered sale deed dated 27th June 1973, for a sum of Rs. 8000/-. She had got this land frorn her father, Mussadi, vide a gift deed dated 30th August, 1967. The Plaintiffs filed a suit for pre-empting the sale on the ground that they were the father''s brother''s sons of Smt. Karodhu Devi, and as such, they had right of pre-emption as against the donee. They also challenged the sale amount. According to them was a fictitious amount, whereas the market value of the land was far less than the amount which is stated to have been paid.

The case was contested by the Defendants, and, according to them, the Plaintiffs had no right of pre-emption, inasmuch as Smt. Karodhu Devi Had acquired the property through her father, and that it was Section 15(2)(a) of the Punjab Pre-emption Act (shortly called the Act), as applicable to Himachal Pradesh which covered the case. The Senior Sub-Judge accepted the contention of the Defendants and he, therefore, nonsuited the Plaintiffs.

Against the dismissal of the suit, the Plaintiffs filed an appeal before the District Judge, who by his impugned order under appeal, dated 28th August 1975, reversed the judgment decree of the trial Court and decreed the suit of the Plaintiffs on payment of Rs. 8000/-. According to the District Judge, it was Section 15(l)(a) thirdly of the Act, which governed the case. He further observed that the Plaintiffs being the vendor''s father''s brother''s sons are entitled to pre-empt the sale.

Against this judgment and decree of reversal of the judgment and decree of the trial Court, the Defendant has come up m appeal to this Court.

It is a common case between the parties that the land question was acquired by Smt. Karodhu Devi (sic) her father by a gift. So, the only point that requires determination is whether it is Section 15(2)(a) which would be applicable or it is Section 15(1)(a) which would apply to the facts of the present case. The relationship of the Plaintiffs to Smt. Karodhu Devi is also not in dispute and they are admitted to be the father''s brother''s sons. According to the vendee, the sale is not-pre-emptible as the case falls u/s 15(2)(a), inasmuch as Smt. Karsodhu Devi had succeeded to the land through her father by way of gift. Sub-section (2) of Section 15 reads as under:

"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 daugthter 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.

In order to attract the provisions of Sub-section (2)(a) of the Act, the vendor should have succeeded through her father or brother. Here ki the instant case the property which is the subject-matter of the suit was acquired by the vendor, i.e. Smt. Karodhu Devi from her father by way of a gift. Therefore,'' now the question is whether in such a case when the property has been acquired by a gift can it be said that she succeeded through her father to the property. In so far as succeesion is concerned that is quite different from the acquisition of the property by way of gift. Succession would only come into being on the death of the person, who was the owner, but an acquisition by gift is different from acquisition by succession. The Senior Sub-Judge who decided the case, relied on Mohinder Singh and Others Vs. Smt. Balbir Kaur and Another, wherein the scope of the expression "succeeded through her father" fell to be determined. In that case one B executed a will on 18-8-1948 in favour of his five daughters stating that his five daughters would become the owner possession in equal shares enjoying the same rights as the testator. B died in 1949. G one of his five daughters sold her share of the land. Her daughter instituted a suit for possession on the ground that she was a co-owner, and as such could pre-empt the Same u/s 15 of the Act. It was urged by the Respondent that daughters under the will of B had succeeded to him but not through him. In other words the use of the word ''through'' indicated next heirs and the daughters were not the next heirs of B, but the two widows who outlived him and, therefore, Section 15(2) did not apply, whether the daughters had received the property under the will or by gift, as in either case, that was in the nature of a transfer. It was held that Section 15(2) did apply to the facts of the case and daughter of G was not entitled to pre-empt the sale. The section would not have applied if the will in this case in favour of G and her four sisters had been by Bs''father in the event B had predeceased her father. In that case, the will being of the grand-father, the grand-daughter could not be said to have succeeded ''through'' father because the word ''succeed''- ed or its cognate expressions are not confined to succession of intestacy, This authority! as a matter bf fact cannot be made applicable to the facts of the present case, inasmuch as the vendor-daughter had acquired the land under a will from, her father and her daughter sought to pre-empt the sale. The property was acquired by her under a will through her father which tantamount to succession. In the case in hand, the property acquired by the vendor from her father under the gift. Therefore, there was no question of succeeding to the property through her father so as to attract the applicability of Sub-section (2)(a) of Section 15 of the Act. Acquisition by gift does not tantamount to succession. Succession opens only on the death of the owner, whereas gift can be made by the owner during his life-time. Here, in the present case, the gift was made by the father and admittedly it could be made only when he was alive. So, there was no question of succession through the father so as to say that it was Sub-section (2)(a) of Section 15 which was applicable in the case.

In Kahla Singh and Ors. v. Rajinder Singh and Ors. 1966 Cur. L.J. 535) a Division Bench of the Punjab High Court has held:

"The word ''succeeded'' as used in Sub-section (2) of Section 15 indicates that the property is such as a female gets, on the death of relatives mentioned therein. The word clearly conveys the idea of succession and not of transfers inter vives including gifts.

The word ''succession'' has a definite connotation in the context of Indian enactrnents and1 has bean taken to relate the devolution of property on the death of a person.

We, accordingly, hold that where a female gets property by gift, front her father, brother or husband, it cannot be said that the property is of a kind to which the female has succeeded through her father, brother or husband as the case may be. Sub-section (2) of Section Section 15 of the Punjab Pre-emption Act, in the circumstances would not get attracted to the sale in dispute.

Exactly, the same is the case here, and the only interpretation that can reasonably be given to the words "succeeded through" is the acquisition of the property on the death of the father or other relations mentioned in the Section. Admittedly, it was not inherited by her, rather, she acquired it during the life-time of her father. Therefore, this Sub-section (2)(a) of Section 15 will not cover the case as is sought to be argued by the learned Counsel for the Appellant. The relevant provision which will apply in the present case is Section 15(1)(a) thirdly.

In the light of the above, there is no force in this appeal and the same is hereby dismissed with no orders as to costs.