The right of pre-emption based on consanguinity is unconstitutional, and the provisions of Section 15(2) of the Act have been declared ultra vires. The right of pre-emption cannot be defeated by virtue of an amendment in the Act taking away the right on the basis of co-sharer.

Hemant Gupta, J.

1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby his suit for pre-emption was dismissed in appeal.

2. The plaintiff filed a 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 Fatehgarh Tehsil Naraingarh. lt is also alleged that the plaintiff and the vendor Singh Ram are related to each other as the plaintiff is fourth degree collateral of the vendor. It is further pleaded that Singh Ram has sold half of 24 kanals 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 for pre-emption as a co-sharer with the vendor in the land in dispute under Section 15(1) of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act).

3. It was the case of the defendant that Singh Ram was owner of only 3/4th share and his sister was owner of l/4th share and both of them were jointly owners of half of the land. It was denied that Singh Ram alone has half share of land measuring 24 kanals but it was asserted that the sale was by Singh Ram and Angrejo who are owners of the land, in the replication, it was pointed out that the sale is by Singh Ram for himself and as Mukhtiar of Smt. Angrejo. Therefore, the sale is preemptible.

4. The learned trial court decreed the suit on the ground that the plaintiff is a co-sharer and has thus, superior right of pre-emption. The learned 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 appeal filed by defendant, the judgment and the decree passed by the learned trial Court was set aside and it was held that the 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 Angrejo is not preemptible being sale governed by the provisions of Section 15(2) of the Act and thus the plaintiff does not have superior right of pre-emption.

5. In second appeal, the following substantial questions of law arise for consideration:

1. Whether the plaintiff has a superior right of pre-emption as a co-sharer?

2. Whether the suit for pre-emption can be dismissed for not disclosing the complete fact regarding the sale by Angrejo, a female vendor?

6. In Atom Prakash v. State of Haryana and Ors., (1986-1)89 P.L.R. 329 (S.C.), the Hon ble Supreme Court has found that there is no justification for the classification contained in Section 15 of the Act conferring right on the kinsfolk to seek pre-emption. It found that the right of pre-emption based upon consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent with modern ideas. It also held that the pending suits and appeals would be disposed of in accordance with the declaration granted by the Court. Relevant paras of the judgment are reproduced as under:

13. 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 reasons which justified its recognition quarter of a century ago, namely, the preservation of integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to preemption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and Clause First, Secondly and Thirdly of Section 15(1)(c) and the whole of Section 15(2) are therefore, declared ultra vires of the Constitution.

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