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2008 Supreme(SC) 57
2008(1) Supreme 335
Supreme Court of india
(From Punjab and Haryana High Court)
Dr. Arijit Pasayat & Aftab Alam, JJ.
Labh Singh & Ors. — Appellants
versus
Bachan Singh — Respondent
Appeal (civil) 342 of 2008
(Arising out of S.L.P. (C) No. 3100 of 2005)
Decided on : 11-01-2008
important point
Under clause ‘Fourthly’ of Section 15(1)(b) of Punjab Pre-emption Act, 1913 a co-sharer has a superior right of pre-emption.
Headnote:Punjab Pre-emption Act, 1913 – Section 15(1) – Clause ‘Fourthly’ of Section 15(1)(b) having not been declared ultra vires, and in view of the declaration that pending cases under the other provisions declared being ultra vires will not be affected appellant has a superior right of pre-emption – Appeal allowed. (Para 15)
(1986) 2 SCC 249; (1996)7 SCC 97– Relied upon.
Facts of the case:
1.The plaintiff filed suit for possession alleging therein that the vendor Singh Ram is jointly recorded as owner of half share of land measuring 24 kanals situated in village Fatehbad Tehsil Naraingarh. The plaintiff and vendor Singh Ram are related to each other as the plaintiff is fourth degree collector of the vendor. Singh Ram had sold half of 24 kanal of land by way of registered sale deed dated 2.6.1979 registered on 29.6.1979 for an ostensible consideration of Rs.30,000/-
2.The plaintiff inter alia claimed superior right of pre-emption as a co-sharer with the vendor in the land in dispute under Section 15(1) of Punjab Pre-emption Act, 1913.
3.It was the case of the defendant that Singh Ram was owner of only 3/4th share and his sister was owner of 1/4th share and both of them were jointly owners of half of the land. Singh Ram alone has half share of land measuring 24 kanals, but it was asserted that the sale deed was by Singh Ram and Angrezo who are owners of the land. In replication, it was pointed out that the sale is by Singh Ram for himself and as Mukhtiar of Smt. Angrezo. Therefore, the sale is pre-emptible.
4.The Trial Court decreed the suit on the ground that the plaintiff is a co-sharer and has thus superior right of pre-emption.
5.In the appeal filed by defendant, the judgment and the decree passed by Trial Court were set aside and it was held that vendee has improved his status as that of a co-sharer in view of the fact that the sale to the extent of share of Angrezo is not pre-emptible being not governed by the provisions of Section 15(2) of the Act and thus the plaintiff does not have superior right of pre-emption.
6.The High Court was of the view that right of pre-emptor cannot be defeated by virtue of amendment in Section 15 of the Act taking away right on the basis of co-sharer.
Findings of the Court:
Appellant has a superior right of pre-emption.
Result : Appeal allowed.
judgment
Dr. Arijit Pasayat, J. —
1.Heard learned counsel for the parties.
2.Leave granted.
3.Challenge in this appeal is to the judgment dated 29.10.2004 passed by a learned Single Judge of the Punjab and Haryana High Court in a Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short CPC). The Second Appeal before the High Court was filed by the plaintiff who had succeeded before the Trial Court; but the First Appellate Court set aside the judgment and decree passed. In the Second Appeal, the judgment and decree of the Trial Court was restored and those of the First Appellate Court were set aside. The respondent as plaintiff filed a suit for pre-emption.
4.Background facts in a nutshell are as follows:
The plaintiff filed suit for possession alleging therein that the vendor Singh Ram is jointly recorded as owner of half share of land measuring 24 kanals situated in village Fatehbad Tehsil Naraingarh. The plaintiff and vendor Singh Ram are related to each other as the plaintiff is fourth degree collector of the vendor. Singh Ram had sold half of 24 kanal of land by way of registered sale deed dated 2.6.1979 registered on 29.6.1979 for an ostensible consideration of Rs.30,000/-
The plaintiff inter alia claimed superior right of pre-emption as a co-sharer with the vendor in the land in dispute under Section 15(1) of Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act). It was the case of the defendant that Singh Ram was owner of only 3/4th share and his sister was owner of 1/4th share and both of them were jointly owners of half of the land. Singh Ram alone has half share of land measuring 24 kanals, but it was asserted that the sale deed was by Singh Ram and Angrezo who are owners of the land. In replication, it was pointed out that the sale is by Singh Ram for himself and as Mukhtiar of Smt. Angrezo. Therefore, the sale is pre-emptible.
5.The Trial Court decreed the suit on the ground that the plaintiff is a co-sharer and has thus superior right of pre-emption. The Trial Court negatived the argument raised by the defendant that the sale is by a female and thus governed by the provisions of sub-section (2) of Section 15 of the Act. However, in the appeal filed by defendant, the judgment and the decree passed by Trial Court were set aside and it was held that vendee has improved his status as that of a co-sharer in view of the fact that the sale to the extent of share of Angrezo is not pre-emptible being not governed by the provisions of Section 15(2) of the Act and thus the plaintiff does not have superior right of pre-emption.
6.In Second Appeal, the following questions were formulated for consideration:
1.Whether the plaintiff has superior right of pre-emption as co-sharer?
2.Whether the suit for pre-emption can be dismissed for not disclosing the complete fact regarding the sale by Angrezo, a female vendor?
7.The High Court was of the view that right of pre-emptor cannot be defeated by virtue of amendment in Section 15 of the Act taking away right on the basis of co-sharer.
8.In support of the appeal, learned counsel for the appellants submitted that the High Court misconstrued the decision of this Court in Atam Prakash v. State of Haryana and Ors.,1 (1986 (2) SCC 249).
9.It was further submitted that the view was re-iterated in Mahant Braham Dass Singh Pannu v. Om Prakash Chaudhary,2 (1996 (7) SCC 97).
10.In Atam Prakash case (supra) it was inter alia observed as follows:-
“We are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-emption Act of the Kinsfolk entitled to pre-emption. The right of pre-emption 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 reason 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 successi
