Ujagar Singh vs Rattan Singh

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. There is no dispute on facts. Mst. Malan was married to Kodu. On his death she married Bujha. Rattan is the son of Mst. Malan from Kodu. The property in dispute Mst. Malan inherited from Bujha. This property was sold by Mst. Malan by a registered deed of sale on the 14th of June, 1961 for a sum of Rs. 17,000/- The property is agricultural land, and the sale was in favour of Ujagar Singh. Rattan Singh son of Kodu pre-empted the sale. His suit was decreed under S. 15(2)(b) of the Punjab Pre-emptions Act. Against this decision the present second appeal is preferred.

Mr. Gupta''s contention is, that it is only the son of the female from the husband whose property she has sold who is entitled to preempt it u/s 15(2)(b) and not her pichhlag son. In support of this contention he relies on the observations of a Division Bench decision of this Court in Mota Singh v. Prem Paxkash Kaur ILR (1961) P&H. 614, to which I was a party, Dua J, delivered the judgment and at page 629 of the report made these observations.

On the construction, which I am adopting even a pichhlag son would, obviously, be disentitled to exercise the right of pre-emption, but on that point it is hardly necessary to express any considered opinion in the present case. I would, therefore, be inclined to hold that the ''son and daughter'' mentioned in the First class of sub-section (2)(b) of amended section 15 means the son and daughter of both the female vendor and her husband. whose property is the subject matter of the sale, which is ought to be pre-empted.

These observations fully support the contention of the learned counsel for the appellant and the pichhlag son would not be entitled to pre-empt the sale.

Apart from this, it does not stand to reason, shot, the legislature was conferring right of pre-emption on the son of the female, property, which she had not inherited I from the father of that son. The words "land or property to which she had succeeded through her husband '' would be meaningless if the object was to confer a right of pre-emption on the females'' son irrespective of the fact that such a son had no connection whatever with the male holder of the property, Section 15(2)(b) is in these terms;

S. (15)(2). Notwithstanding anything contained in sub-section (1)-

(a) * * * *

(b) where the sale is by a female of land or property to which she had succeeded through her husband, or through her son in case the son has inherited the land or properly sold from his father, the right of pre-emption shall vest:

First, in the son or daughter of such husband of the female;

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

In any case the ambiguity if any in this provision was removed by Punjab Pre-emption (Amendment) Act 13 of 1964. The legislature has clarified its intention by inserting the words ''''husband of the" between the words "''such" and "female" in section 15(2)(b)(i) firstly. The plaintiff pre-emptor i not the son of the person to whose property Mst. Malan succeeded and thereafter sold it and which sale is the subject matter of pre-emption in this suit. Therefore the plaintiff is not entitled to preempt the sale in dispute.

Mr. Puran Chand learned counsel for the plaintiff respondent contends that the amendment which came during the pendency of the appeal cannot be taken into account because the amendment is not retrospective. In my view this argument has no force because the amendment is merely brought about as a matter of abundant caution and for clarifying the intention of the legislature which all along had been the same from the very inception of the introduction of section 15. The amendment does not confer a new right of pre-emption nor does it take away a right of pre-emption already existing. It merely clarifies the ambiguity in the language used by the draftsmen. Therefore, the con tension that no retrospective effect should be given to the amendment has no meaning. I would accordingly allow this appeal, set aside the judgments and decrees of the Courts below and dismiss the same but in the circumstances of the case the parries will bear their own costs throughout.