Smt. Dulari vs Jai Pal and another

J.V. Gupta, J.—This is vendee''s second appeal against whom suit for possession by way of pre-emption, bat been decreed by both the Courts below.

There was a plot No 770 measuring 1 Kanal 2 Marlas. Half of it i. e. 11 Marias was purchased by Smt Ramesh, wife of Shri Chand, whereas the other half i e. 11 Marias, was purchased by Smt. Dulari, wife of Deep Chand Later on vide registered sale deed dated 17th September, 197l, Smt. Ramesh sold her half share in favour of Smt. Dulari. Jaipal son of Siri Chand Plaintiff filed the present suit tor posssssion by way of pre-emption, on the ground that he being the son of the vendor Smt. Ramesh, had a superior right of pre emption. The vendee Defendant contested the suit, inter alia, on the ground that the Plaintiff was not the son of the vendor, as he was the step son of the vendor Smt. Ramesh Certain other pleas were also taken which are not material for the purposes of this appeal.

The learned trial Court found as a fact that the Plaintiff Jaipal son of Siri Chand was the step son of the vendor Smt. Ramesh. However, relying upon a Full Bench judgment of this Court reported in Moti Ram s/o Atma Ran v. Bakhwant Singh (1967) 69 P.L.R 1041, it found that a step son is entitled to pre-empt the sale of a step mother As a result of this finding on the material issue the Plaintiff''s suit was decreed. In appeal, the Senior Subordinate Judge (with enhanced appellate powers) affirmed the findings of the trial Court on all the issues and thus maintained the decree passed in favour of the Plaintiff

It is the common case of the parties that the Plaintiff is the step son of the vendor Smt Ramesh. It is also not denied that the Plaintiff is claiming his right of pre-emtion u/s 15(1)(a) of the Punjab Pre-emption Act, 1913. Thus, the controversy involved in this appeal is whether the Plaintiff being the step son of the vendor is entitled to pre-emot the sale being the vendor''s son as provided undr Section 15(1)(a).

The Learned Counsel for the Appellant contended that the Full Bench judgment of this Court in Moti Ram''s case (supra) relied upon by the Courts below was distinguishable as that was a case u/s 15(2)(b), whereas the present case is governed u/s 15(1) (a). According to the Learned Counsel, his case was fully covered by a judgment of the Himachal Pradesh High Court reported in Thoilu v. Krishan Gopal 1984 P. L. J. 61, where Moti Ram''s ease (supra) was also considered Reference was also made to Smt Kaushalya Sawhney v. Smt. Shakuntla Salmi 1976 Rev. L. R. 360, Gurnam Singh v, Smt. Ass Kaur (1977) 79 P. L. R. 191 and Mallappa Fakirapa Sanna Nagashettl v. Shivappa A. I. R. 1962 Mys 140, where the provisions of Section 15(1) (a) of the Hindu Secession Act were considered, to support the contention that u/s 15(1)(a) of the Hindu Succession Act as well, the son does dot include the step son of a female. On the other hand, the Learned Counsel for the Respondents only relied upon the Full Bench judgment of this Court in Moti Ram''s case (supra).

After hearing the Learned Counsel for the parties and going through the case law cited at the Bar, I am of the considered view that u/s 15(1)(a) the son does not include a step son and, therefore, the Plaintiff being the step son of the vendor, was not entitled to pre-empt the sale. The said Full Bench judgment was clearly ditinguishable As a matter of fact, the whole matter has been considered by the Himachal Pradesh High Court in Thoilu''s case (supra). I am in respectful agreement with the view taken by the learned Judge in Thoilu''s case (supra). In Moti Ram''s case (supra), the facts were that one Tarlok Singh had two wives, namely, Ind Kaur and Karam Kaur. He had sons from these wives. On his death, his property was inherited by his two widows, named above, and his sons from either of his wives One of the widows, namely, Ind Kaur and his two sons from this widow, sold the property which they had inherited from Tarlok Singh. This sale was sought to be pre-empted by the sons of Tarlok Singh from his other wife, namely Karam Kaur. It was on these facts that the Full Bench held that for the purpose of Section 15(2)(b) of the Act, the son included a step son so as to entitle him to pre-empt the sale made by his step mother. This was so held in view of the explicit language of Section 15(2)(b) which confers the right of pre-emption not on the son of the female vendor, but on the son of her husband through whom she had succeeded to the property forming subject matter of sale. The distinction lies in the fact whether the property sought to be pre empted is inherited one or self-acquired. It is only in the former case that the right accures to the step-son of the female, whereas no such right is available in the latter case. The present is a case of the latter category. Since the whole matter has been thoroughly discussed by the Himachal Pradesh High Court in Thoilu''s case (supra), it will be unnecessary to go into this matter in further details.

Apart from that, even the interpretation put by the High Courts on the provisions of Section 15(1) (a) of the Hindu Succession Act also supports the contention of the Appellant that the word ''son'' there does not include the step son. It was held in Smt. Kaushalya Sawhney''s case (supra) that the correct interpretation of the words "sons and daughters" in Clause (a) of Sub-section (1) of Section 15 of the Hindu Succession Act, depends upon the determination as to whether the "sons and daughters" within the meaning of this clause, include the "step sons and step-daughters" or not. In the absence of any definition or explanation to the effect that the words "sons or daughters" would also include a step son or a step daughter, these words should be given their natural meaning and as such a son or a daughter of the deceased female would mean the male or female issue born of that female As regards the Punjab Pre-emption Act, 1913, it will be evident if the provisions of Section 15(1)(a) and 15 (2) (b) are read together. u/s 15 (2) (b) it has been specifically provided that if the sale is by a female of land, to which she has succeeded through her husband, or through her son, the right of pre-emption shall vest first in the son or daughter of "such husband of the female", whereas u/s 15(1) (a) it is the son or daughter of the vendor who can pre-empt the sale. When the sale is by a sole owner the right of pre-emption shall vest in the son or daughter of the vendor. Thus providing so u/s 15(1)(a), the son or daughter of the husband of the female-vendor was excluded In other words, the step sons or daughters of the female-vendor were excluded.

In this view of the matter, the appeal succeeds, the judgments and decrees of the Courts are set aside and the Plaintiff''s suit is dismissed, with costs throughout.