1. Suit for pre-emption based on tenancy rights under the Punjab Pre-emption Act as applicable to Haryana, involving sales by male and female co-sharers. (Para 2 )
Back
Next 
1996 Supreme(SC) 431
1996(2) SUPREME 491
SUPREME COURT OF INDIA
Madan Mohan Punchhi & S.C. Sen, JJ.
Mansu -Appellant
versus
Shadi Ram -Respondent
Civil Appeal No. 3809 of 1984
Decided on 20-2-1996
Counsel for the Parties :
For the Appellant : S.M. Ashri, Dr. Meera Aggarwal, R.C. Misra, Advocate for M/s. Agarwal and Mishra & Co.
For the Respondents : Harbans Lal, Sr. Adv. A.S. Chahal and Ms. S. Janani, Advocates.
Important Points
IMPORTANT POINT
The respondent has to he rendered defenceless is asserting his claim for Pre-emption on the basis of co-shareship due to 1995 Haryana Amendment to Punjab pre-emption Act, 1913. The Appellant s right of pre-emption on the basis of his tenancy rights has to be decreed.
The respondent has to he rendered defenceless is asserting his claim for Pre-emption on the basis of co-shareship due to 1995 Haryana Amendment to Punjab pre-emption Act, 1913. The Appellant s right of pre-emption on the basis of his tenancy rights has to be decreed.
Subject
Property Law - Pre-emption Rights
Act Referred
Headnote
Punjab Pre-emption Act, 1913-Section 15(1)-(as applicable to Haryana)-Amendment of 1995-Suit property sold to respondent by a set of co-sharers both males and females-Suit for pre-emption by appellant as tenant-Respondent alleging pre-emption as co-sharer-Abolished by 1995 amendment when appeal pending-Court can take judicial notice (Para 3)-Contention that Appellant s plea of tenancy is not reliable on revenue records-Rejected on ground of presumption in favour of continuity of possession as tenant in the absence of any cogent evidence of surrender of tenancy or eviction in accordance with law-Result-Appellant has right of pre-emption (Para 4)-Appeal allowed. (Para 6)
Held : Let the pre-emption money be deposited by the appellant within sixty days from today, if not already deposited, in terms of the decree of the trial court, failing which the suit for pre-emption shall stand dismissed as also this appeal. (Para 6)
Legal Category Hierarchy
Table of Contents
2. Whether sales by female vendors are pre-emptable and whether a vendee-co-sharer possesses a superior right of pre-emption over a tenant under Section 15 of the Act. (Para 2 )
3. Section 15(2) is ultra vires; statutory amendments withdrew co-sharers' pre-emption rights, leaving only the tenant's right; tenancy is presumed to continue unless proven otherwise. (Para 4 , 5 )
4. Where statutory amendments withdraw the right of pre-emption for co-sharers, the right survives only in favor of the tenant under the prevailing law. (Para 4 )
5. Appeal allowed; High Court judgment set aside and lower court decrees restored, directing the appellant to deposit pre-emption money within sixty days. (Para 6 )
6. What is the legal status of Section 15(2) of the Punjab Pre-emption Act regarding sales by females?
Section 15(2) of the Act, which specifically applied to sales made by females, has been struck down as ultra vires the Constitution. Consequently, such sales are now governed by the provisions of Section 15(1). (Para 4 )
7. How did the Haryana Amendment Act 10 of 1995 affect the priority of pre-emptors?
The Haryana Amendment Act 10 of 1995 withdrew the right of pre-emption in favor of co-sharers. As a result, the right of pre-emption now survives only in favor of the tenant. (Para 4 )
8. What is the evidentiary presumption regarding the continuity of tenancy in pre-emption suits?
There is a presumption in favor of the continuity of possession. Once it is conceded that a party was a tenant, they are presumed to have continued as such unless cogent evidence proves abandonment or legal eviction. (Para 5 )
ORDER
The sole appellant having died, application for substitution is allowed.
2. The appellant before us (now represented by his heirs and legal representatives) is the plaintiff-pre-emptor. The respondent on the other side is the vendee. The suit property was sold by a set of co-sharers, males as well as females. The appellant staked claim to the suit property in exercise of his right of pre-emption based on tenancy. The respondent resisted the suit contending that since the vendors were both males and females, the share of the female vendors was not pre-emptable in terms of Section 15(2) of the Punjab Pre-emption Act as applicable to the State of Haryana. And, further, if the sale by emale vendors was not pre-emptable, he as a successors-in-interest became a co-sharer in the suit land, and as such he had a superior right over the plaintiff under Section 15(1) of the aforesaid Act.
3. The Trial Court as also the lower appellate court went into oral and documentary evidence adduced by the parties in coming to the firm conclusion that the appellant being a tenant had a superior right of pre-emption in preference to the respondent. The High Court allowed the second appeal of the vendee-respondent and dismissed the suit of the appellant, on the premise that when part of the sale effected by female vendors was not pre-emptable under Section 15(2), then the vendee, as a co-sharer in his own right, had a right to pre-empt the sale made by the male vendors under Section 15(1) of the Act. It is this view of the High Court which has been put to challenge before this Court.
4. In Attam Prakash v. State of Haryana and Ors.1, this Court has categorically struck down Section 15(2) of the Act as ultra vires the Constitution. As referred to earlier, Section 15(2) applies to cases of sales made by females. Due to the non obstante clause operating in Section 15(2), those sales are not pre-emptable under Section 15(1) of the Act. When the right of pre-emption under Section 15(2) is no longer available, it can now be searched in Section 15(1) in so much as is left alive in Attam Prakash s case. Thereunder, in clause fourthly , the right of pre-emption vests in a co-sharer and then in clause fifthly , it vests in the tenant who holds under tenancy of the vendor or vendors the land or property sold or a part thereof. Uptil the High Court decision, the co-sharer had a superior right of pre-emption over the tenant. In the meantime, however, by Haryana Amendment Act 10 of 1995 which came into force on July 7, 1995, the right of pre-emption in favour of the co-sharer has been withdrawn by causing necessary amendment in the parent Act. The right of pre-emption now survives only in favour of the tenant and not for any other. Thus, the superior claim of the respondent presently stands snatched away from him by statutory amendment. This Court in Karan Singh and others v. Bhagwan Singh (D) by LRs and others2, has taken the view in this context that it would take judicial notice of the law as prevailing on the date of the order or judgment and apply it to mould relief accordingly. Following the same line of reasoning the respondent has to be rendered defenceless in asserting his claim for pre-emption on the basis of co-sharership.
5. The appellant on the other hand can only succeed on the basis of his tenancy right. Mr. Harbans Lal, learned senior counsel for the respondent has made an effort to convince us that the revenue record adduced in evidence in support of the plea of tenancy is not reliable, especially when there are entries suggestive of the fact, that the tenant was not in cultivating possession in part of the land. These entries were examined by the courts below, and were reconciled in favour of the tenant/appellant on the premise that there was a presumption in favour of continuity of his possession and once it was conceded that the appellant was the tanant over the land in dispute, he shall be presumed to have continued thereafter unless by
