Sawan Singh and others vs Amar Nath

Falshaw, C.J.—This is an appeal under Clause 10 of the Letters Patent by the vendees in a pre-emption suit against whom the decree of the trial court in favour of the Plaintiffs was upheld in first appeal and in second appeal by a learned Single Judge of this Court.

The facts relevant to the point which arises in the appeal are that the land in suit comprises a one-fourth share of 76 kancUs which was sold to the Appellants by Mst. Chandi. At the time when she had succeeded to the estate of her husband she had only occupancy rights, but in 1953 by operation of law these occupancy rights became converted into full ownership.

The sale was pre-empted by Amar Nath Respondent u/s 15(1)(b) (fourthly) of the Punjab Pre-emption Act which confers the right of pre-emption on other co-sharers in the case of a sale of a share of joint land or property not made by all the co-sharers jointly.

However, the vendees rely on an amendment introduced into Section 15 of the Act by Punjab Act X of 1960, this reads:-

Notwithstanding anything contained in Sub-section (1)...............

(b) where the sale is by a female of land or property to which she succeeded through her husband the right of pre-emption shall vest.

Firstly in the son or daughter of such female ;

Secondly in the husband''s brother or husband''s brother''s son of such female.

It is contended that this overrides the basis of the right of the pre-emptor in the present case, and that in the case of a sale of land by a female it restricts the right of pre-emption to the relations listed in Firstly and Secondly.

This contention has so far been rejected on the basis of the decisions in Narain Singh v. Sada Kaur and Sukh Ram v. Lekh Ram ILR 6 Lah 134.

In the first of those cases the facts were that one Hari Singh had been granted abadkar rights in certain colony land and after bis death these rights were mutated in favour of his widow in the year 1904. In 1906 she acquired occupancy rights which she gifted in favour of her daughters who in due course became full owners of the land by paying the necessary sums to the Government. The Plaintiffs, claiming to be reversioners of Hari Singh, brought a suit challenging the alienation by the widow of the occupancy rights and it was held by Broadway and Jai Lal JJ. that the widow acquired the occupancy rights for her-seli and not as representative of her deceased husband. In other words she herself acquired the property and her right to dispose of it was unlimited.

In that case two earlier decisions in Lal v. Gauhar 5 P.R. 1918 and Sewa Singh v. Mst. Bholi 129 P.R. 1916 were followed, both being to the effect that where limited rights matured into full ownership the property became the self-acquired property of the persons in whose hands the property was at the time when full ownership rights came into existence.

These cases were referred to when Sukh Ram''s case, I. L. R. 13 Punj. 47 was decided in this Court and it was held by Bhandari C. J. and myself that there is no doubt that when the widow entered into enjoyment of the occupancy rights in succession to her deceased husband, she only enjoyed a widow''s estate, but the effect of her own conversion of these occupancy rights into a full ownership in accordance with the provisions of the Punjab occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, is that, she became the absolute owner of the land and was entitled to alienate it in any manner she liked.

All that could be argued on behalf of the present Appellants was that none of the decisions referred to above arose in a case of preemption, but in my opinion this does not inavalidate in any way the proposition of law that where occupancy rights held by a woman mature into full ownership, her rights of ownership ate her self-acquired property and cannot be said to have accrued to her through succession to her husband The learned Counsel for the Appellants sought to draw a distinction between the sale of land and the sale of rights therein whether proprietary or occupancy, but to my mind the distinction is wholly unreal, and the only cast which I can think of as constituting a sale of land as distinct from the sale of a right, title or interest therein is the physical sale of land by excavation at so much per cubic foot or in other words as movable property. I am therefore of the opinion that the appeal fails and must be dismissed, but the parties may be left to bear their own costs.

Jindra Lal, J.

I agree.