The right of pre-emption in respect of agricultural land and village immovable property inherited by a female from her father vests in her brother or brothers son, and not in a co-sharer.

Gurdev Singh, J.

1. In this appeal under clause 10 of the Letters Patent the short question involved relates to interpretation of Section 15(2)(a) of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act).

2. The property sought to be pre-empted originally belonged to Gulzari, father of the appellant Smt. Birjee. He had another daughter Smt. Mahakauri. On Gulzaris death without a male issue or a widow his estate was mutated in equal shares in favour of Smt. Birjee and the sons and daughters of her sister Smt. Mahakauri, who had predeceased her father.

3. On the 9th January, 1962, the land inherited by Inder, Mahavir and others (sons and daughters of the said Smt. Mahakauri) was sold away by them to Pirthi Singh, Sajjan Singh and Dala Singh respondents for Rs. 11,000/- Smt. Birjee thereupon sued to pre-empt the sale on the ground that she was a co-sharer. Denying that the plaintiff had any right of pre-emption the vendees pleaded, inter alia that the land in suit was no longer joint, the parties being in possession of specific khasra numbers. The learned trial Judge however, rejected this plea and decreed Smt. Birjees suit on payment of Rs. 11,000/-. In appeal, the learned Additional District Judge, without going into the plaintiffs claim that she was co-sharer reversed the decree of the trial Court on the finding that the property in dispute having come into the vendors hands from their maternal grandfather Gulzari, the case fell under section 15(2)(a) of the Act and the right of pre-emption did not vest in a co-sharer the sole ground on which the plaintiff has based claim. This finding having been upheld by a learned Single Judge of this Court the pre-emptor has come up in further appeal.

4. The persons in whom the right of pre-emption vests in respect of agricultural land and village immovable property are specified in Section 15 of the Punjab Pre-emption Act, 1913, as it stands amended. The relevant clause of Section 15 of the Act under which a co-sharer, as the plaintiff-appellant claims to be, has a right to pre-empt, runs thus:-

-

"15(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest:-

- (a) * * * * * * *

(b) Where the sales is of a share out of joint land or property and is not made by all the co-sharers jointly:-

- First in the sons or daughters or sons sons or daughters sons of the vendor or vendors.

Secondly in the brothers or brothers sons of the vendor or vendors. Thirdly, in the fathers brothers or fathers brothers sons of the vendor or vendors: Fourthly, in the co-sharers: Fifthly.

* * * *

Section 15(2) of the Punjab Pre-emption Act, however, provides:--

"Notwithstanding anything contained in sub-section (1):-

- (a) where the sale is by a female of the 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 by such female, in her brother or brothers son;

(II) if the sale is by the son or daughter of such female, in the mothers brother or the mothers brothers sons of the vendor or vendors.

(b) where the sale is by a female of the land or property to which she has 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:-

- (i) First in the son or daughter of such husband of the female.

(ii) Secondly, in the husbands brother or the husbands brothers son of such female."

5. It is clear that under this sub section a co-sharer as such has not been given any right to pre-empt. Accordingly, when the sale sought to be pre-empted is by a female and is of the type of the property described therein, the provisions of sub-section (1) of Section. 15 will be of no avail to a co-sharer in view of the opening words of sub-section (2) of Section 15. "Notwithstanding anything