Back
1980 Supreme(HP) 61
High Court Of Himachal Pradesh
T.R.HANDA
DALIP SINGH - Appellant
Versus
JAISI RAM - Respondent
R. S. A. No. 44 of 1978
Decided On : 08/26/1980
For the Appellant :Shri Ramesh Ghand, Advocate. For the Respondents:Shri Chhabil Dass, Advocate, Shri Yoginder Paul, Advocate with him.
The right of pre-emption in the instant case was governed by Section 15 (2) (b) of the Punjab Pre-emption Act, and not by Section 15 (1) (a), as the widow had succeeded to the land through her husband.
Headnote:
PRE-EMPTION - RIGHT OF PRE-EMPTION - SECTION 15 (1) (A) AND SECTION 15 (2) (B) OF THE PUNJAB PRE-EMPTION ACT - INTERPRETATION AND APPLICATION - MERGER OF ESTATES - DOCTRINE OF MERGER - APPLICABILITY IN THE CONTEXT OF PRE-EMPTION RIGHTS.
Fact of the Case:
The case involved a dispute over the right of pre-emption to purchase agricultural land sold by a widow, Smt. Shankari, who had inherited the land from her husband, Shri Bhikhoo. The plaintiffs, Jaisi Ram (brother of Smt. Shankari), Kesru, and Nathu (sons of the brother of Shri Bhikhoo), claimed the right to pre-empt the sale. The defendant, the vendee, argued that the right of pre-emption was governed by Section 15 (1) (a) of the Punjab Pre-emption Act, giving preference to the brother of the vendor (Jaisi Ram), while the plaintiffs contended that it was governed by Section 15 (2) (b) of the Act, giving preference to the sons of the vendor's husband (Kesru and Nathu).
Finding of the Court:
The court held that the right of pre-emption in this case was governed by Section 15 (2) (b) of the Punjab Pre-emption Act, and not by Section 15 (1) (a). The court found that the widow had succeeded to the land through her husband and that the sale was, therefore, pre-emptible under Section 15 (2) (b). Consequently, the court reversed the decree passed in favor of the brother of the vendor (Jaisi Ram) and dismissed his suit. However, the court exercised its power under Order 41, Rule 33 of the Code of Civil Procedure to reverse the decree of dismissal passed against the sons of the vendor's husband (Kesru and Nathu) and passed a decree in their favor.
Issues: 1. Whether the right of pre-emption in the instant case was governed by Section 15 (1) (a) or Section 15 (2) (b) of the Punjab Pre-emption Act. 2. Whether the doctrine of merger could be applied to extinguish the estate inherited by the widow from her husband.
Ratio Decidendi: 1. The court interpreted Section 15 (1) (a) and Section 15 (2) (b) of the Punjab Pre-emption Act and concluded that Section 15 (2) (b) applied in this case because the widow had succeeded to the land through her husband. 2. The court rejected the argument that the doctrine of merger could be applied to extinguish the estate inherited by the widow from her husband, holding that there was only one estate vested in the widow and that the enlargement of her restricted estate into an absolute one by Section 14 (1) of the Hindu Succession Act did not amount to a merger of two estates.
Final Decision: The court reversed the decree passed in favor of the brother of the vendor (Jaisi Ram) and dismissed his suit. The court also reversed the decree of dismissal passed against the sons of the vendor's husband (Kesru and Nathu) and passed a decree in their favor, granting them the right to pre-empt the sale of the land.
T. R. Handa, J.—This regular second appeal is from the judgment and decree dated 1-5-1978 passed by the District Judge affirming that of the Senior Subordinate Judge Hamirpur dated 21-2-1977 decreeing the suit of plaintiff-respondent No. 1 for possession of 21 kanals of agricultural land by way of pre-emption.
2. In order to appreciate the points in controversy between the parties which survive for consideration at this stage, it is considered necessary to narrate a few facts which are not in dispute.
3. The land forming the subject of dispute between the parties was originally owned by one Shri Bhikhoo who died issueless some time in 1928-29. On the death of Shri Bhikhoo his widow Smt. Shankari succeeded to that land as a limited owner under the law then in force. Later with the enactment of the Hindu Succession Act, 1956, she acquired absolute and full ownership in thisland by virtue of the provisions of Section 14 (1) of this Act with effect from 1-4-1956. After so acquiring absolute ownership in this Jand, she sold the same to the present appellant for a consideration of Rs. 18,000 by means of a registered sale deed dated 17-1-1973.
4. Shri Jaisi Ram respondent No. 1 is the real brother of Smt. Shankari, the vendor while Sarvshri Kesru and Nathu respondents Nos. 2 and 3 are the sons of the real brother of Shri Bhikhoo, the deceased husband of Smt. Shankari. All these three respondents joined together as plaintiffs and filed the suit, which is the genesis of this appeal, to pre-empt the aforesaid sale.
5. Now in the light of the facts narrated above, the common case of these plaintiffs was very simple. They claimed that the land in dispute could either be taken as the self acquired property of the vendor, she having acquired the absolute and full rights of ownership therein only in 1956 under Section 14(1) of the Hindu Succession Act, 1956 or in the alternative she could be said to have succeeded to this land through her husband. In the former case the right of pre-emption was governed by the provisions of Section 15 (1) (a) of the Punjab Pre-emption Act as applicable to Himachal Pradesh and plaintiff No. 1 Jaisi Ram being the real brother of the vendor had the preferential right of pre-emption, and in the later case the provisions of Section 15 (2) (b) of the Punjab Pre-emption Act governed the right of pre-emption and under this provision plaintiffs Nos. 2 and 3 being the sons of the real brother of the vendors husband had such preferential right as against the appellant vendee who in either case being a stranger had no right of preemption.
6. The appellant-defendant did not dispute that plaintiffs Nos. 2 and 3 were the sons of the real brother of the vendors deceased husband but he denied their superior right of pre-emption on the plea that right of preemption in the instant case was governed by the provisions of Sectiond 15 (1) (a) and not by Section 15 (2) (b) of the Punjab Pre-emption Act. In other words the appellants case was that the land in question was the self acquired property of the vendor. As regards the claim of plaintiff No. 1, his preferential right of pre-emption was repudiated by the appellant on the pretext that this plaintiff was not related to the vendor in the manner alleged. The other pleas raised by the parties would be apparent from the following issues struck by the trial Court on such pleas:
1. Whether the plaintiffs have superior right of pre-emption ? O. P. P.
2. Whether the sale price was actually paid or fixed in good faith ? O. P. D.
3. If issue No. 2 is not proved, what was the market value of the suit land at the time of sale ? O. P. Parties.
4. Whether the suit is bad for mis-joinder of plaintiffs ? O. P. D.
5. Whether plaintiff No. 1 is estopped from filing this suit by his act and conduct ? O. P. D.
6. Whether the defendant spent on stamps and registration of the sale deed ? If so, how much and to what effect ? O. P. D.
7. Whether the defendant raised any construction over the suit land a
