Sube Singh vs Ram Singh

Vinod K.Sharma, J.

1 This regular second appeal, by the plaintiff/appellant., is directed against the judgment and decree dated 25.7.1984, passed by the learned Additional District Judge (II), Jind, vide which the suit for possession by way of preemption, filed by the plaintiff/appellant, was ordered to be dismissed.

2 The plaintiff/appellant brought a suit for possession by way of pre emption, on the pleading, that vendor Sheo Dayal was owner of the land measuring 17 kanals 16 marlas, which he sold to Ram Singh defendant/respondent No. 1 for a sum of Rs. 21,000/ (Rupees twenty one thousand only) vide sale deed dated 21.5.1980. though the fictitious sale consideration was shown as Rs. 37,000/ (Rupees thirty seven thousand only). The plaintiff claimed his right of preemption being son of vendor. The case of the plaintiff/appellant, therefore, was, that he had a superior right of preemption and was entitled to preempt the sale. The vendor did not contest the suit.

3 The suit was contested by defendant/respondent No. 1, by raising the objection that the suit was bad for partial preemption. The suit was said to be collusive and benami. It was also the case of defendant/respondent No. 1, that the plaintiff was the consenting party to the sale. The relationship between the vendor and plaintiff were denied. It was asserted that the sale consideration paid was Rs. 37,000/ (Rupees thirty seven thousand only) and not Rs. 21,000/ (Rupees twenty one thousand only). It was also the case of defendant/respondent No.1, that the plaintiff/appellant and vendor constitute Joint Hindu Family and the land in dispute was coparcenary Joint Hindu Family property. The property was sold by karta of the family. It was also the case of defendant/respondent No. 1, that after purchase a sum of Rs. 13,540/ (Rupees thirteen thousand five hundred and forty only) was spent on the improvement of the land. It was claimed, that he was entitled to recover this amount in addition to sale consideration, stamp and registration charges.

4 The learned trial Court, on the pleadings of the parties, framed the following issues;

"1. Whether the plaintiff" has preferential fight of preemption OFF

Whether the sale price is not paid in good faith if issue No. 2 is not proved, what was the market value of the suit land OFF.

Whether the suit is bad for partial preemption OPD.

Whether the plaintiff has no right of preemption as alleged in para No. 1 of the written statement OPD.

Whether the vendee has incurred expenditure of stamp and registration fees, if so. to what effect OPD.

Whether the defendantvendee made improvements on the suit land, if so. to what effect OPD.

Whether the suit is had for being collusive OPD

Relief."

5 The learned trial Court, on appreciation of evidence, recorded a finding, that the plaintiff/appellant being the son of vendor had a preferential right of preemption.

6 I lowever, on issue No. 2, it was held, thatthe sale price was correctly depicted in the sale deed.

7 The suit was held to be not bad for partial preemption. On issue No. 4. it was held, that plaintiff had right to preempt the sale. The learned trial Court held that the vendee had incurred expenditure of stamp and registration. He was entitled to recover. However, on issue No. 6. it was held, that defendant/respondent No. 1 failed to prove, that any improvement made. The suit was decreed by holding it not to be collusive.

8 Defendant/respondent No. 1 challenged the decree passed by the learned trial Court.

9 The learned lower appellate Court reversed the judgment and decree passed by the learned trial Court, by invoking the provisions of Section 10 of the Preemption Act, to hold, that the property being Joint Hindu Family property, the karta was to act on behalf of all. Therefore, the plaintiff being party as a coparcener, could not preempt the sale.

10 The appeal was accordingly accepted and the suit was dismissed.

11 Mr. R.K.. Gupta, learned counsel, appearing on behalf of the appellant, contends that this appeal raises the following substantial question of law

"Whether the learned lower appellate Court could invoke the provisions of Section 10 of the Preemption Act, to nonsuit the plaintiff/appellant in absence of any evidence to prove that the property was Joint Hindu Family coparcenary property "

12 In support of the substantial question of law, the learned counsel for the appellant vehemently contended, that the learned lower appellate Court, on the basis of conjectures and surmises, and without there being any evidence to prove held that the land was ancestral coparcenary property in the hands of vendor. In absence of positive evidence to prove that the property was HUF coparcenary property, could not have reverses the finding on issue No.4.

13 The contention of the learned counsel for the appellant, therefore, was, that substantial question of law be answered in favour of the appellant and against the defendant/respondents. The judgment and decree of the learned trial Court be restored.

14 There is no necessity to go into this question, as the Honble Supreme Court in Aiam Parkash v. State of Haryana and others, AIR 1986 Supreme Court 1987 R.R.R. 116 859(1), has been pleased to lay down as under

"13. We are thus unable to find any justification for the classification contained in section 15 of the Punjab Preemption Act of the kinsfolk entitled to preemption. The right of preemption based on consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to preemption is intrinsically defective and self contradictory. There is therefore, no reasonable classification and clauses first, Secondly and, Thirdly of S. 15(l)(a), First, Secondly and Thirdly of S. I5(l)(b). Clauses First, Secondly and. Thirdly of S. 15(l)(c) and the whole of section 15(2) are, therefore, declared ultra vires the Constitution."

15 Once, provisions of Section 15 of the Punjab Preemption Act, on which reliance was placed to seek preemption, was declared to be ultra vires the Constitution, the plaintiff/appellant did not have any right to seek possession by way of preemption being son of the vendor.

16 As the plaintiff/appellant had no right whatsoever to seek preemption, the decree passed by the learned lower appellate Court, therefore, deserves to be upheld, though on the ground that part of Section 15 on which reliance was placed to seek preemption was declared ultra vires the Constitution.

17 There being no merit in this appeal, it is ordered to be dismissed, bul with no order as to costs.Appeal dismissed.