The right of a tenant to pre-empt agricultural land sold by a female is not barred under S. 15(2) of the Punjab Pre-emption Act, 1913, unless the land was acquired by the female vendor paternally or through her husband.

1. The defendant-vendee in this appeal has challenged the validity of the judgment and decree passed by the lower appellate Court decreeing the suit of the plaintiff-preemptor in respect of agricultural land on payment of a sum of Rs. 2,000.

2. The first defendant Santi, widow of Arjan Singh, sold the suit property consisting of agricultural land in favour of the second defendant Wasawa Singh on 6th of June, 1961 under the registered sale-deed Ex. P 3, for a sum of Rs. 2,000. The plaintiff-respondent Jagir Singh thereupon brought a suit for pre-emption on 8th of June, 1962 on the ground that he was a tenant on the land so sold. The suit was contested by Wasawa Singh defendant who questioned not only the right of the plaintiff to bring the suit as a tenant but also claimed a sum of Rs. 265 as stamp duty and registration fee, and further pleaded that the suit was only for partial pre-emption as the trees standing on the land had not been taken into reckoning and that the suit was barred boy time. On the pleadings of the parties the following issues were framed:-

"(1) Has plaintiff sought to pre-empt the entire sale, and if not, to what effect ?

(2) Is the suit barred by limitation?

(3) Is plaintiff possessed of a preferential right of pre-emption ?

(4) To what amount, if any is vendee entitled on account of the expenses of the stamp duty and registration fee of the sale-deed ?

(5) Relief"?

3. The trial Judge in dealing with the first tow issues observed that these were not pressed before him by the defendant and consequently he decided them in favour of the plaintiff. On the third issue, which seems to have been disputed by the parties before him, the trial Judge held that though the plaintiff had been shown to be a tenant on the land it was not proved affirmatively that he occupied it as such on 6th of June, 1961, when the land came to be sold. On the fourth issue, the trial Judge reached a conclusion in favour of the plaintiff. The suit was accordingly dismissed, the plaintiff having failed to establish his right of pre-emption as a tenant.

4. The only question agitated before the lower appellate Court related to the right of pre-emption of the plaintiff. As stated by the Judge, "no other issue has been touched by the counsel for the parties before". On the issue which was raised before the learned Judge, it was found that the plaintiff had made good his case of being a tenant-at-will on the land at the time of sale, i.e., on 6th of June, 1961. The plaintiffs appeal was accordingly allowed and the judgment and decree of the trial Judge set aside.

5. I have mentioned the details of the pleadings, issues and the discussion thereon to show that one of the points now raised by Mr. Gandhi, the learned counsel for the vendee appellant, relates to a matter which was never put in issue and did not even form the subject matter of discussion before the Courts below, Mr. Gandhi contends that sub-s (2) of S. 15 of the Punjab pre-emption Act, as inserted by the Amending Act (Punjab Act 10of 1960), deprives the claimant of his right to pre-empt the agricultural land in suit having been sold by a female.

Sub-section (2) reads as follows:-

- "Notwithstanding anything contained in sub-section (1),-- (a) Where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance the right of pre-emption shall vest,-- (i) If the sale is boy such female, in her brother or brothers sons:

(ii) If the sale is by the son or daughter of such female, in the mothers brothers or the mothers brothers sons of the vendor or vendors;

(b) Where the sale is by a female of land or property to which she had succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest,- First, in the son or daughter of such female; Secondly