The right of pre-emption conferred on co-sharers who happen to be kinsfolk cannot be denied.

G.R.Majithia, J.

1. This judgment disposes of R.S.A. Nos. 1920 and 1919 of 1987 and 1725 of 1988 and C.M.No. 13-C of 1994 in R.S.A. No. 1725 of 1988, as a common question of law arises for determination therein.

2. Facts first :-

The property in dispute originally belonged to one Des Ram, resident of village Earona, District Rohtak. On the death of Des Ram, the property was inherited by his two daughters, viz. Smt. Dharmo and Smt. Ram Kaur. On her death, Smt. Dharmo was succeeded to by the proforma respondents, namely, Gordhan, Deep Chand, Khazan (sons) and Smt. Mam Kaur (Daughter). Smt. Ram Kaur sold her share in the land to Rup Chand (appellant in R.S. A. No. 1919 of 1987 - hereinafter referred to as the vendee) through registered sale deed dated May 26, 1983 for Rs. 25,000/-. Children of Smt. Dharmo (since deceased) sold their share in the land to Smt. Chhotu (appellant in R.S.A. No. 1920 of 1987 - hereinafter referred to as the vendee) vide registered sale deed dated May 26, 1983, for Rs. 25,000/-. Bijender Kumar alias Mool Chand, respondent No. 1 in R.S.No. 1920 of 1987 (hereinafter referred to as the plaintiff) filed two separate suits for possession by preemption claiming superior right of preemption on the ground that he was a co-sharer in the land in suit. The suits were decreed by the trial Judge vide judgments and decrees dated January 23, 1987. The judgments and decrees of the trial Judge were affirmed in appeal by the first appellate Court vide judgments and decrees dated February 6, 1987. Feeling aggrieved from the judgments and decrees of the first appellate Court, the vendees have assailed the same in this Court through R.S.A. Nos. 1920 and 1919 of 1987.

3. Smt. Bohti widow of Baru, resident of village Pai, Tehsil & District Kaithal sold land measuring 73 Kanals 9 Marias representing 1/3rd share to the defendant-appellants (hereinafter the vendees) vide registered sale deed dated December 26, 1985 for a sale consideration of Rs. 2,27,250/- Ram Dhari alias Dhara, plaintiff-respondent (hereinafter the plaintiff) claiming superior right of pre-emption being a co-sharer filed a suit for possession by way of pre-emption on July 23, 1986. The suit was decreed by the trial Judge on May 30, 1987, The judgment and decree of the trial Judge were affirmed in appeal by the first appellate Court vide judgment and decree dated June 2, 1988. The vendees have challenged the judgment and decree of the first appellate Court in R.S.A. No. 1725 of 1988-

4. The only dispute raised by the vendees before the Courts below was that the provisions of Sub-section (2) of the Section 15 of the Punjab Pre-emption Act, 1913 (for short, the Act) override the provisions of Sub-section (1) of Section 15 and if a sale falls within both these Sub-sections, Sub-section (2) of Section 15 must prevail notwithstanding anything contained in Sub-section. (1). Thus, where the vendor was a female and she had succeeded to the land through her father or brother, the case will fall under Sub-section (2) of Section 15 and not under Sub-section (1) of Section 15 of the Act. The validity of Section 15 of the Act as amended by the Punjab Pre-emption (Amendment) Act, 1960 was challenged in the apex Court through a writ petition under Article 32 of the Constitution of India and the judgment is reported as Atom Prakash v. State of Haryana, (1986-1) 89 P.L.R. 329 (S.C). The apex Court declared clauses First secondly and Thirdly of Section 15(1)(a) and 15(1)(b) and clauses First Secondly and Thirdly of Section 15(1)(c) and the whole of Section 15(2) of the Act as ultra vires the Constitution. The apex Court observed thus :-

" A scrutiny of the list of persons in whose favour the right of pre-emption is vested Under Section 15 reveals certain glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession. First we notice that neither the father nor the mother figures in the li