Chandu And Ors. vs Hans Raj And Ors.
1970 Latest Caselaw 106 Del

JUDGMENT

Om Parkash, J.

(1) The decision of the dispute, in this Letters Patent Appeal, which has arisen out of a pre-emption, suit depends on the interpretation to be put on the expression "has succeeded through her father or brother" occurring in Clause (a), Sub-section (2) of Section 15 of the Punjab Pre-emption Act. That Section enumerates persons in whom the right of pre-emption vests in respect of sales of agricultural land and village immovable property. Sub-section (1) of Section 15 has three Clauses, (a), (b) and (c). Clause (a) mentions persons in whom the right of preemption will vest where the sale is by a sole owner. Clause (b) enumerates pre-emptors where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly. Sub-clause "fourthly" of Clause (b) gives the right of pre-emption to other co-sharers. Clause (c) mentions persons in whom the right of pre-emption will vest if the sale is made by the co-sharers jointly. Sub-section (2) of Section 15 reads:- "NOTWITHSHANDINGanything 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 daughter of such female after inheritance, the right of pre-emption shall vest, (i) if the sale is by such female, in her brother or brohter's sons; (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; (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 property sold from his father, the right of pre emption shall vest,- First, in the son or daughter of such females; Secondly, in the husband's brother or husband's brother's son of such female."

(2) Before taking up the controversy about the interpretation of the expression "has succeeded through her father or brother" in Sub-section (2), the facts leading to that controversy may be stated-Chandu appellant and Sidhu were the sons of Ran Singh and grand sons of Nag. Nag had a brother, named Gulab. Gulab had two sons, Shibu and Dulla. Shibu had died about 60 years ago without leaving any issue. His widow, Shrimati Arko, had succeeded to his estate. Shrimati Arko had died in 1963. Shrimati Mukhtiar Devi, daughter of Dulla, who had already died, had succeeded to Shrimati Arko. Out of the estate inherited from Shrimati Arko, Shrimati Mukhtiar Devi had sold, by a registered sale-deed dated the 10th June, 1963, land, measuring 131 Kanals and 14 Marias, Along with a Chhapar and a Taur, situated in village Chhatara, Tehsil Una, in favor of Hans Raj for a consideration of Rs. 3,500.00. Hans Raj had sold 7 Kanals. out of the land, purchased by him, to Rala Ram and Fithu. Chandu and Sidhu (hereinafter referred to as the plaintiffs) had filed a suit against Hans Raj. Ralla Ram and Fithu, for declaration and possession. The plaintiffs had alleged that Shrimati Arko had already, in her life time, gifted the Chhapar which had been sold by Shrimati Mukhtiar Devi, to the plaintiffs, and that Shrimati Mukhtiar Devi had not inherited the Chhapar and had no authority or power to sell it. The plaintiffs had, further, alleged that the Taur belonged to them and its sale by Shrimati Mukhtiar Devi was illegal. The plaintiffs had sought declaration that the; Chhapar and the Taur belonged to them and their sale by Shrimati Mukhtiar Devi was illegal and void.

(3) The plaintiffs had prayed for possession of the land sold by pre-emption on payment of Rs. 1,000.00. The plaintiffs had based their right of pre-emption on the ground that they were co-sharers with Shrimati Mukhtiar Devi and were also her collaterals. ' The plaintiffs had alleged that the consideration of Rs. 3,500.00, recited in the sale deed, was fictitious and that only a sum of Rs. 1,000.00 had been paid to Shrimati Mukhtiar Devi as sale price. The plaintiffs had, further, alleged that the sale by Hans Raj defendant of a portion of land in favor of Ralla Ram and Fithu was not binding upon them and did not affect their right to pre-empt the sale in favor of Hans Raj.

(4) The suit was contested by Hans Raj defendant. Ralla Ram and Fithu did not appear, despite service and were proceeded against exparte.

(5) Hans Raj defendant denied that the Chhapar and the Tautbelonged to the plaintiffs. He further denied that the plaintiffs had any right of pre-emption against the sale of land. Hans Raj had also denied that only a sum of Rs. 1,000.00 had been paid as sale price. His plea was that the consideration of Rs, 3500 had : been fixed in good faith and had been actually paid. Hans Raj had, further, pleaded that he had paid Rs. 140.00 for redeeming a mortgage on part of the land and was therefore entitled to be paid Rs. 3,640.00, in the event of the plaintiffs being granted a decree for possession of the land.

(6) On the pleadings of the parties, the trial Court framed the following issues:- (1)Whether the plaintiffs have a right to pre-empt the sale in favor of defendant No. 1. (2) Whether the sale price of Rs. 3,500.00 was fixed in good faith or actually paid. (3) What is the effect of the sale of the portion of the property in suit to defendants Nos. 2 and 3 by defndants No. 1. (4) What was the market value of the property in suit ? (5) Whether defendant No. 1 is entitled to Rs. 140.00 for redeeming the mortgage. (6) Whether the plaintiffs are the owners of the Chhapar or the Taur ? (7) Relief.

(7) The trial Court found issues Nos. (1) and (6) in favor of the plaintiffs and issues Nos. (2), (4) and (5) in favor of Hans Raj defendant. Issue No. (3) was held against the defendants.

(8) At the trial of the suit, the plaintiffs had not pressed the ground of being collaterals of Shrimati Mukhtiar Devi in support of their claim of pre-emption. The only ground, pressed, was that the plaintiffs were co-sharers with Shrimati Mukhtiar Devi and were entitled to pre-empt the sale of land under Sub-clause "fourthly". Clause (b) of Sub-section (1) of Section 15. This was controverter, on behalf of Hans Raj defendant. The contention put forth, on his behalf, was that as Shrimati Mukhtiar Devi had succeeded to the land from Shrimati Arko, as the daughter of Dulla, the case was covered by Clause (a) Sub-section (2) and under that Sub-section a co-sharer had no right of pre-emption. The trial Court accepted the plea of the plaintiffs. The view of the trial Court was that Clause (a) of Sub-section (2) applies only in a case where the female succeeds to land or property directly on. the death of her father or brother and not in a case where she succeeds to land or property on the death of some other relative of her father or brother.

(9) As a result of its findings, the trial Court granted a decree for declaration to the plaintiffs that they were owners of the Chhapar and the Taur and that the sale of those properties by Shrimati Mukhtiar Devi was illegal. The trial Court, further, granted a decree to the plaintiffs for possession of the land on payment of Rs. 3640.

(10) Aggrieved by the decree of the trial Court, Hans Raj defendant, went up in appeal to the learned District Judge. Before the learned District Judge, it was conceded, on behalf of Hans Raj defendant, that the Chhapar and the Taur belonged to the plaintiffs and that Shrimati Mukhtiar Devi had no right to transfer the same. The declaratory decree, granted to the plaintiffs, with respect to the Chhapar and Taur was not challenged, in appeal. The only contention, urged in appeal, was that the case v/as covered by Sub-section (2)(a) of Section 15 and that the trial Court erred in holding that the plaintiffs had a right of pre-emption, under Sub-section (1), Clause (b). Sub-clause 'fourthly'. The learned District Judge accepted the contention and reversed the finding of the trial Court. He held that the expression "has succeeded through her father or brother" in Sub-section (2)Ca) means that the female succeeds to the land or property on account of her relationship with her father or brother. The learned District Judge, further, held that succession, in Clause (a) may be on the death of the father or brother or on the death of some other relative of the father or borther. As Shrimati Mukhtiar Devi had succeeded to the estate of Shrimati Arko on the ground that she was the daughter of Dulla, husband's brother of Shrimati Arko the sale made by her, according to the learned District Judge, could be pre-empted under Sub-section (2) only, and not under Sub-section (1) and as Sub-section (2) did not confer any right of pre-emption on a co-sharer, the plaintiffs were not entitled to pre-empt the sale made by Shrimati Mukhtiar Devi, The learned District Judge accepted the appeal in part and set aside the decree granted to the plaintiffs for possession, by preemption, of the land. As it was conceded, before the learned District Judge, that the Chhapar and the Taur belonged to the plaintiffs, the declaratory decree in their favor, with respect to those properties, was maintained.

(11) Chandu and Sidhu had filed a second appeal in the High Court of Judicature, State of Punjab. On the re-organization of that State and the transfer of the area where the land in suit is situated to Himachal Pradesh, the appeal was transferred to this Court. During the pendency of the appeal Sidhu had died. His legal representatives were brought on record. The learned Single Judge, who had heard the appeal, agreed with the view of the learned District Judge that the expression "has succeeded through her father or brother" in Clause (a) Sub-section (2) of Section 15 means that the female has succeeded to the land or property on account of her relationship with her father or brother and that the expression does not mean that the female should have succeeded directly on the death of her father or brother. The learned Single Judge upheld the findings of the learned District Judge and dismissed the appeal.

(12) On obtaining a certificate that the case was fit one for appeal, Chandu has filed the present Letters Patent Appeal. Fithu, who was one of the defendants in the suit and respondents in the appeal died during the pendency of the appeal in February 1969. An application was made, on behalf of Chandu on .the 7th of August, 1969, for setting aside the abatement and for bringing on record the legal representatives of Fithu. The application was opposed on behalf of Hans Raj defendant. As, in our opinion, the Letters Patent Appeal is liable to be dismissed on merits, we consider it unnecessary to record any decision on the application of Chandu.

(13) As stated in the opening sentence of this judgment, the controversy in the appeal, is about the interpretation to be put on the expression "has succeeded through her father or brother" in Clause (a) of Sub-section (2) of Section 15 of the Punjab Preemption Act. The contention of the learned counsel for Chandu was that the trial Court had correctly interpreted that expression and that the learned District Judge and the learned Single Judge of this Court were in error in holding that the case of a female who does not succeed directly on the death of her father or brother but succeeds on the death of some other relative of the father or brother was covered by the aforesaid Clause. In our opinion, the contention of the learned counsel for Chandu is devoid of any merit.

(14) From a perusal of the provisions of Sub-section (2) of Section 15, it appears that the object of the Legislature in enacting that Sub-section was that if property has come to a female by inheritance from her father side descendants of that side should alone have a right of pre-emption and if she had inherited the property from her husband it should be the husband's relations who should have a right of pre-emption. Reference in this connection may be made to Mota Singh and others versus Prem Parkash Kaur and others I.L.R. (1961)2 Punjab 614(1), Surjit Singh versus Nazir Singh and another, 1965 Punjab Law Reporter 1108(2) and Jai Singh versus Mughla and others 1967 Punjab Law Reporter 475(3). The case Mata Singh Vs. Prem Parkash Kaur supra was approved by their Lordships of the Supreme Court in Channan Singh and another versus Shrimati Jai Kaur . Their Lordships had observed :- "THEentire scheme of Sub-section (2) of Section 15 is that the right' of pre-emption has been confined to the issues of the last male holder from whom the property which has been sold came .by inheritance. Looking at clause (a) of Sub-section (2) where the property which has been sold has come to the female from her father or brother by succession the right of pre-emption has been given to her brother or brother's son. As has been observed in Mota Singh versus Prem Parkash Kaur I.L.R. (1961)2 Punjab 614 at page 627(1), the predominant idea seems to be that the property must not go outside the line of the last male-holder, and the right has been given to his male lineal descendants........ ........ The principle which has been kept in view is that the person on whom the right of pre-emption is conferred must be a male lineal descendant of the last male-holder of the property sold. This is so with regard to Clause (a) of Sub-section (2)."

(15) If the interpretation, sought to be put, on behalf of Chandu, on the expression "has succeeded through her father or brother" be accepted, and it be held that the sale made by a female of the property inherited by her from her father's side, and not directly from the father, is liable to be pre-empted under Sub-section (1) of Section 15, the object of Sub-section (2) will be wholly defeated inasmuch as persons other than the male lineal descendants of the last male-holder, even strangers, e.g. tenants, will be entitled to pre-empt such a sale. The interpretation which defeats the very object of Sub-Section (2) cannot be accepted.

(16) It is also to be noted that the right of pre-emption is piratical in nature. It is a clog on the freedom to dispose of property. The restriction imposed, by the right of pre-emption, on the fundamental right, to acquire, hold and dispose of property, guaranteed under Article 19(l)(f) of the Constitution has been held to be reasonable on the ground that it implements the agnatic rule of succession and keeps the family property in the family, vide Ram Sarup versus Munshi Ram . The restriction is to be strictly construed and the scope of the right of pre-emption is not to be widened by enlarging the number of pre-emptors. The consequence of the interpretation sought to be put on the expression, "has succeeded through her father or brother", on behalf of Chandu, will be that the number of pre-emptors will be enlarged while the interpretation put on the expression by the learned District Judge and the learned Single Judge will restrict the right of pre-emption to a few persons. The latter interpretation, which does not widen the scope of the right of pre-emption, is to be preferred.

(17) The authorities, cited by the learned counsel, for Chandu, are distinguishable. In Gulraj Singh and another versus Mota Singh and others, , which was an appeal from I.L.R. (1961) 2 Punjab 614, the question was whether the word 'son' or 'daughter' occurring in Section 15(2) (b) of the Punjab Pre-emption Act includes an illegitimate son or an illegitimate daughter. The argument, advanced, before their Lordships, was that the provisions of Section 15 of the Punjab Pre-emption Act should be read in conjunction with the Hindu, Succession Act which made provision for the devolution of property belonging to a female owner and that as under the latter enactment illegitimate children of a Hindu female were entitled to succeed to her property, it must be held that when the Punjab Legislature used in 1960 the expression 'son' or 'daughter', it meant a son or daughter who would be entitled to succeed as an heir of a Hindu female. Their Lordships rejected this argument and held that in construing the words used in Section 15, of the Punjab Pre-emption Act, one should not travel beyond that enactment and that as the normal rule of construction was that the word 'son' or 'daughter' occurring in a statute includes only legitimate children, the word 'son' or 'daughter' used in Section 15 will not include an illegitimate son or daughter. In the present case, the provisions of the Hindu Succession Act have not been resorted to in interpreting the expression "has succeeded through her father or brother". The authority cited, therefore, has no application to the present case.

(18) The second authority, cited by the learned counsel for Chandu was Kahla Singh and others versus Rajinder Singh and others 1966 Punjab Law Reporter 589 (7). The learned counsel specially relied upon the following observations:- "The word 'succeed', as used in the above Subsection Sub-section (2) of Section 15 of the Punjab Preemption Act) indicates that the property is such as a female gets on the death of relatives mentioned therein."

(19) The question in Kahla Singh's case was whether the word 'succession' includes a transfer inter vivos for example a gift. It was held that the word 'succession' has 'a definite connotation in the context of Indian enactments and has been taken to relate to devolution of property on the death of a person and that it) does not include transfer inter vivos. There was no question, in that case whether a sale made by a female of land or property inherited by her on account of her relationship with her father was preemptible under Sub-section (1) or Sub-section (2). Th case cited and the observations relied upon do not in any way support the case of Chandu.

(20) The conclusion from the above discussion is that the expression " has succeeded through her father or brother" in Clause (a), Sub-section (2) of Section 15 of the Punjab Pre-emption Act covers not only a case where a female directly succeeds on the death of her father or brother but also a case where she succeeds on the death of some other relative on account of her relationship with her father or brother.

(21) Shrimati Mukhtiar Devi had succeeded to the estate of Shrimati Arko on the ground that she was the niece of Shibu, brother of her father Dulla. It is clear that Shrimati Mukhtiar Devi had succeeded to the land sold by her on account of her relationship with Dulla, her father. The sale made, by her, could be preempted under Clause (a) of Sub-section (2) only and not under Sub-section (1). It is well settled that Sub-section (2) has got an over-riding effect and excludes the applicability of Sub-section (1) to cases covered by it. Sub-section (2) does not confer any right of pre-emption on a co-sharer. The plaintiffs were not entitled 10 pre-empt the sale, made by Shrimati Mukhtiar Devi, on the ground that they were co-sharers with her.

(22) The appeal fails and is dismissed with costs.