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Prithi Pal Singh and ors. Vs. Milka Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 590 of 1968
Judge
Reported inAIR1976P& H157
ActsPunjab Pre-emption Act, 1913 - Sections 15(1) and 15(2); Hindu Succession Act, 1956 - Sections 14 and 14(1)
AppellantPrithi Pal Singh and ors.
RespondentMilka Singh and ors.
Appellant Advocate H.L. Soni, Adv.
Respondent Advocate G.C. Mittal,; N.C. Jain and; V.K. Gupta, Advs.
DispositionAppeals dismissed
Cases ReferredJaisri Sahu v. Rajdewan Dubey
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....m.r. sharma, j. 1. the facts are given in the order of reference and need not be restated. the following question arises for consideration:whether sub-section (2) of section 15 of the punjab pre-emption act, 1913 (hereinafter referred to as the act) bars the right of pre-emption granted to:-- (i) tenants under section 15 (1) (a) fourthly of the act and (ii) co-sharers under section 15 (1) (b) fourthly of the act. in order to resolve this controversy, the historical development of the law of preemption deserves to be noticed. in r.m.d. chamarbaugwalla v. union of india, air 1957 sc 628, it was observed as under: 'now when a question arises as to the interpretation to be put on an enactment, what the court has to do is to ascertain 'the intent of them that make it', and that must of course.....
Judgment:

M.R. Sharma, J.

1. The facts are given in the order of reference and need not be restated. The following question arises for consideration:

Whether Sub-section (2) of Section 15 of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act) bars the right of pre-emption granted to:--

(i) tenants under Section 15 (1) (a) FOURTHLY of the Act and

(ii) co-sharers under Section 15 (1) (b) FOURTHLY of the Act. In order to resolve this controversy, the historical development of the law of preemption deserves to be noticed. In R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628, it was observed as under:

'Now when a question arises as to the interpretation to be put on an enactment, what the Court has to do is to ascertain 'the intent of them that make it', and that must of course be gathered from the words actually used in the statute That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials. 'The literal construction then', says Maxwell on Interpretation of Statutes, 10th Edition, page 19. 'has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider, according to Lord Coke; (1) What was the law before the Act was passed. (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy'. The reference here is to Heydon's case (1584) 3 Co Rep 7a = 76 ER 637, There are principles well settled, and were applied by this Court in Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 = (AIR 1955 SC 661).'

Section 15 of the Act as it stood before it was substituted by Punjab Act No. 10 of 1960, reads as under:

'15 (1) Subject to the provisions of Section 14, the right of pre-emption in respect of agricultural land and village immovable property shall vest:--

(a) where the sale is by a sole owner or occupancy tenant or in the case of lend or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold;

(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly,--

firstly, in the lineal descendants of the vendor in order of succession.

secondly, in the co-sharers, if any, who are agnates in order of succession;

thirdly, in the persons, not included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold;

fourthly, in the co-sharers:

(c) if no person having a right of pre-emption under Clause (a) or Clause (b) seeks to exercise it,--

firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors;

secondly, in the owners of the patti or other subdivision of the estate within the limits of which such land or property is situate.

thirdly, in the owners of the estate;

fourthly, in the case of a sale of the proprietary right in such Land or property, in the tenants (if any) having rights of occupancy in such land or property;

fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which tha land or property is situated.

Explanation -- In the case of sale by, a female of land or property to which, she has succeeded on life-tenure through he husband, son, brother or father, the word'agnates' in this section shall mean the agnates of the person through whom she has so succeeded.'

The heirs of the vendor in order of succession were allowed to exercise the right of pre-emption. They were also followed by co-sharers, inferior or superior owners as the case may be, owners of the patti, owners of the estate, and the occupancy tenants. The Explanation appearing at the end of this section made it clear that in case of sale of Land by a female, the right of pre-emption shall vest in the heirs of the last-male-holder through whom she succeeded to the property sought to be pre-empted.

2. This provision was challenged as being violative of Article 19(1)(f) of the Constitution in Uttam Singh v. Kartar Singh, AIR 1954 Punj 55 (FB), and it was observed that the objects underlying Sections 15 and 16 of the Act were: (1) to preserve the integrity of the village and the village community; (2) to avoid fragmentation of holdings; (3) to implement the agnatic theory of the law of succession. (4) to reduce the chances of litigation and friction and to promote public order and domestic comfort; and (5) to promote private and public decency and convenience. It was held that these restrictions upon the right guaranteed under Article 19 (1) (f) of the Constitution were in the interest of the general public and the State. This view was affirmed in Ram Sarup v. Munshi, AIR 1963 SC 553.

3. In the meantime, however, there arose considerable spurt in thinking in favour of tenants and against landlords whose lands were being cultivated by occupancy tenants. Definite trends were discernible in public opinion regarding the removal of middlemen who reaped unearned interest from land and for the amelioration of the lot of ordinary tenants. The Punjab Security of Land Tenures Act, 1953, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act 1954, and the Pepsu Tenancy and Agricultural Lands Act, 1955, were brought on the statute book. Laws regulating the village common lands were also passed in the erstwhile State of Punjab and Pepsu. A reference to some of the relevant provisions of these statutes will be made at a latter part of this judgment. At this stage, suffice it to notice that while examining the constitutional validity of the Punjab Security of Land Tenures Act, 1953, their Lordships of the Supreme Court in Atma Ram v. State of Punjab, AIR 1959 SC 519, considered some of the salient features of the earlier agrarian legislation on the subject and observed as under:

'The Punjab Legislature realising that the interest of a tenant was much too precarious for him to invest his available labour and capital to the fullest extent so as to raise the maximum quality and quantity of money crops or other crops, naturally, in the interest of the community as a whole, and in implementation of the Directive Principles of State Policy, thought of granting longer tenures and as we have seen above, the period has been progressively increased until we arrive at the stage of the legislation now impugned, which proposes to create a large body of small land-owners who have a comparatively larger stake in the land, and consequently, have greater impetus to invest their labour and capital with a view to raising the maximum usufruct out of the land in their possession.'

These considerations could not have gone unnoticed by the State Legislatures. In short, the occupancy tenants and the ala malik rights had been abolished. Under Section 6 of the Act, certain class of tenants had also been given right to preempt sales of land comprising their tenancies and under Section 17 (a) of the Act, certain sales of tenancy lands in favour of the tenants were made immune from the exercise of right of pre-emption. By adding Section 8-A to the Pepsu Tenancy and Agricultural Lands Act, 1955, sale of land, comprising the tenancy of a tenant made to him by the landowner, was made non-pre-emptible under the Act. This section is in pan materia with Section 17 (a) of the Act, and both these provisions were introduced by the Punjab Act No. 3 of 1959. The result was that where a tenant himself purchased the property comprised in his tenancy, even the son of landlord was not allowed to pre-empt such a sale.

4. As a natural consequence, the Legislature deemed it proper to amend Sections 15 and 16 of the Act also. Both these sections were desired to be recast Consequently, the Punjab Pre-emption (Amendment) Act, 1960, was brought on the statute book. The Statement of Objects and Reasons of the Bill, published in Punjab Gazette Extraordinary dated June 27, 1959, are as follows:

'There has been a continuous demand from the public to modify the Punjab Pre-emption Act, 1913, Village lifehas been very considerably affected owing to the resettlement of displaced persons hailing from different places, who have since been given lands on quasi-permanent basis, but this Act maintains distinction between these persons and local land-owners. The Act also hampers private transfers of property to landless persons who are harassed by pre-emption suits after they have settled on the lands and reclaimed them. This also affects the distribution among the tenants of land rendered surplus as a result of ceiling imposed on holdings. Further, restrictions on the sale of immovable property not only prevent developmental activities but are also inconsistent with the present democratic set up. In order to remove those serious defects it is essential to amend the Punjab Pre-emption Act, 1913. The Bill aims of achieving these objects.'

By virtue of Section 4 of this amending Act, Section 15 of the Act was substituted in the following terms:

'15. Persons in whom right of preemption vests in respect of sale of agricultural land and village immovable property:--

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

(a) where the sale is by a sole owner,--

First- in the son or daughter or son's son or daughter's son of the vendor.

Secondly, in the brother or brother's son of the vendor;

Thirdly, in the father's brother or father's brother's son of the vendor.

Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof;

(b) Where the sale 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 brother's sons of the vendor or vendors;

thirdly, in the father's brothers or father's brother's sons of the vendor or vendors.

fourthly, in the other co-sharers;

fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;

(c) where the sale is of land or property owned jointly and is made by all the co-sharers jointly,--

first, in the sons or daughters or sons' sons or daughters' sons of the vendors;

secondly, in the brothers or brother's sons of the vendor.

thirdly, in the father's brothers or father's brother's sons of the vendors;

fourthly, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof-

(2) 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 by such female, in her brother or brother's son;

(ii) if the sale is by the son or daughter of such female, in the mother's brothers or the mother's brother's sons of the vendor or vendors;

(b) where the sale is by a female of 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,--

first, in the son or daughter of such female.

secondly, in the husband's brother or husband's brother's son of such female.'

If Section 15 (1) of the Act is closely analysed, it becomes obvious that the right of pre-emption was restricted to a comparatively small number of heirs. The tenants came next after the blood relations. In case of the sale of share out of joint land, the co-sharers came next after the blood relations and they were in turn followed by the tenants. The occupancy tenures and the adna malkiat tenures had been abolished and as such, it was no longer considered necessary to mention occupancy tenants and adna maliks as having any right of pre-emption. Because of the large influx of the displaced persons it was not deemed expedient to pursue any further the idea of homogeneity of village proprietary bodies. Consequently the owners of pattis and the owners of the estates were excluded from the category of pre-emptors. Section 17 of the Punjab Security of Land Tenures Act, 1953, had granted a right of pre-emption to tenants of landowners, other than the small landowners, only. The distinction between the land owned by a small landowner and a big landowner was abolished and the rights of the tenants were placed at a much higher pedestal by recognising them in Section 15 of the Act itself. Under this section, a tenant regardless of the period for which he held the land under his cultivation was, for the first time, granted a right of pre-emption. In short, the Legislature manifested its intention in clearest possible terms and gave a statutory recognition to the concept that the tiller of land should be encouraged to become its full owner. In all other respects, the pattern of the right of pre-emption was left untouched. For instance, by virtue of the Explanation appearing under the old Section 15 of the Act in case of a sale by a female, the right of pre-emption was vested in the heirs of the last male-holder through whom she succeeded to the property. This Explanation was recast and introduced in the shape of Section 15 (2) of the Act. Some of the judgments rendered by this Court had really obscured the scope of Section 15 (2) of the Act by stretching the argument that the right of pre-emption being a creature of the statute should be strictly construed. Sections 15 (1) and 15 (2) were read in isolation and it was held that where a case fell under Section 15 (2) of the Act, the persons mentioned in Section 15 (1) of the Act did not have any right of pre-emption. By way of illustration, it may be mentioned that in some cases right of pre-emption was sought to be enforced by step-sons and step-daughters of a female inheriting the property of her husband. Their rights were defeated on the ground that they being not out of the body of the female vendor could not be regarded as her sons or daughters within the meaning of Section 15 (1) (a) of the Act. Their cases were also excluded from the operation of Section 15 (2) (b) of the Act for similar reasons. When this absurdity came to the notice of the Legislature, it intervened and further amended Section 15 (2) of the Act by introducing Amending Act No. 13 of 1964. The relevant part of the section after this amendment reads:

'15 (2) * * *

(a) *

(b) *

first, in the son or daughter of such husband of the female;

secondly,* * * *'

4. In Regular Second Appeal No.345 of 1960 (Chanan Singh v. Smt. JaiKaur) decided on October 26, 1960 (Punj),precisely the same point came up forconsideration before P. C. Pandit, J. Inthat case, Jai Kaur, who was the daughterof the last male-holder through another wife, sought to pre-empt the sale made by her step-mother. The learned single Judge held that Mst. Jai Kaur had no right of pre-emption because she was not the daughter of Mst. Sobhi vendor -- her-mother. The Letters Patent Appeal was filed against the judgment of the learned single Judge which is Letters Patent Appeal No. 91 of 1961, (Smt. Jai Kaur v. Chanan Singh) decided on May 10, 1965 (Punj). In the meantime, Punjab Act No-13 of 1964 had already been brought on the statute book by which Section 15 (2) of the Act had been amended as indicated earlier. The Bench deciding the Letters Patent Appeal took notice of the amendment Act at the appellate stage and decreed the claim of the step-daughter.

5. The vendee went up in appeal before the Supreme Court and the judgment is reported as Chanan Singh v. Smt. Jai Kaur, 1970 Punj LJ 260 = (AIR 1970 SC 349). The Court held:

'It appears to us that the Amendment Act of 1964 was merely of a clarificatory or declaratory nature. Even in the absence of the words which were inserted by the Amendment Act of 1964 in Section 15 (2) (b) the only possible interpretation and meaning of the words, 'in the son or daughter of such female' could have reference to and cover the son or daughter of the husband of the female.

'The entire scheme of Sub-section (2) of Section 15 is that the right of preemption has been confined to the issues of the last male-holder from whom the property which has been sold came by inheritance. Looking at Clause (a) of subsection (2) where the property which has been sold has come to the female from her father or brother by succession the right of pre-emption has been given to her brother or brother's son.'

A declaratory Act means to declare the law, or to declare that which has always been the law, and there having been doubts which have arisen the Legislature declares what the law is and enacts that it shall continue what it then is. This authoritative pronouncement of their Lordships of the Supreme Court makes it abundantly clear that the Amending Act of 1964 was merely meant to re-state the existing law. In other words, even in the absence of this Amending Act the words, 'son and daughter of such female' occurring in Section 15 (2) (b) of the Act denoted the son and daughter of the last male holder did have a right of pre-emption. A necessary corollary of this view is that Section 15 (2) represents only the Explanation appearing at the end of the old Section 15 of the Act. While explaining this point further, their Lordships of the Supreme Court observed as under:--

'As has been observed in Mota Singh v. Prem Parkash Kaur, ILR (1961) 2 Punj 614, at p. 627, the predominant idea seems to be that the property must not go outside the line of the last male-holder and the right has been given to his male lineal descendants. Where the sale is by the son or the daughter of such female the right is given to the mother's brothers or their sons. The principle which has been kept in view is that the person on whom the right of pre-emption is conferred must be e male lineal descendant of the last male-holder of the property sold. This is so with regard to Clause (a) of Sub-section (2). Coming to Clause (b) where the sale is by a female of lend or property to which she has succeeded through her husband or through her son in case the son has inherited the same from his father the right oi preemption is to vest firstly in the son or daughter of such female and secondly, in the husband's brother or husband's brother's son of such female. Now if the son or daughter of the female who has sold the property could refer to her son or daughter from a husband other than the one from whom the property devolved on her, it would be contrary to the scheme and purpose of Sub-section (2) which essentially is to vest the right of pre-emption in the lineal descendants of the last male-holder. Similarly it is unthinkable that a husband's brother or husband's brother's son should have reference to a husband to whom the property never belonged. In other words, it could never be intended that if a female has had a previous husband who has either died or with whom the marriage has been dissolved and the female has remarried and succeeded to the property of her second husband the brother or the brother's son of her previous husband should be able to claim the right of pre-emption when they had nothing whatsoever to do with the property sought to be pre-empted. It would follow that under Clause (b) the right of pre-emption would vest firstly in the son or daughter of the husband of the female meaning thereby either her own off-spring from the husband whom she has succeeded or the son or daughter of that husband even from another wife.'

The law enunciated in the above-mentioned passage was and continues to be the law on the subject In this situation, Sections 15 (1) and 15 (2) of the Act cannot be regarded as complete Codes by themselves creating different classes of rights of pre-emption. They have to be read together in a harmonious manner by treating Section 15 (2) of the Act as merely a proviso to Section 15 (1) of the Act. for, otherwise, some startling results will follow which were not within the contemplation of the Legislature.

6. If Sections 15 (11 and 15 (2) of the Act were to be regarded as seperate Codes then, obviously, Section 15 (1) of the Act will have to be confined to the self-acquired property of a female. In case of such a property, the tenant and the co-sharer would, no doubt- have right of pre-emption. On the other hand, if Section 15 (2) of the Act is held to apply to the property acquired by a female either through her husband or through her father, then only the persons mentioned in Section 15 (2) (b) will have any right of pre-emption. In that case, the tenant and the co-sharer would have to be ousted from the exercise of this right It has already been noticed that in recent times there has been a tendency to augment end to enlarge the rights of the tenants in respect of the lands compriaing their tenancies. If the sale of land is made to a tenant even the son and other near relations of the land-owner would be debarred from exercising any right of pre-emption in respect of such a sale. iB view of Section 8-A of the Pepeu Tenancy and Agricultural Lands Act, 1955 and Section 17-A of the Punjab Security of Land Tenures Act. 1953, it is not imaginable that the Legislature which had manifested a clear intention of ushering in a socialistic pattern of society by placing the rights of the tenants on a higher pedestal would have debarred the tenants from exercising the right of pre-emption in respect of the property acquired by e female either through her husband or through her father. Further, to hold otherwise would be to introduce an element of invidious discrimination by a process of judicial interpretation. If the tenant has a right to pre-empt the self-acquired property of a female, it does not stand to reason why he should be debarred from exercising the same right in respect of the land acquired by a female through her husband or father. The aggrieved tenant would at once come forward with a plea that his right under Article 14 of the Constitution has been violated. It is no doubt open to the Legislature to make classification in respect of laws, but the classification apart from being reasonable should have a nexus with the object sought to be achieved by the Legislature. So tar as the tenants are concerned, the Legislature had manifested its intention in clearest possible terms to improve their rights. It would be wholly unreasonable to assume that the Legislature held different views qua the property acquired by a female through her husband or her father. If right of co-sharer to preempt land is to be defended on the ground that it prevents fragmentation of holdings, the Legislature could not have ignored this consideration in case sale was made by a female inheriting land from her husband or from her father.

7. The argument raised is that it is open to the Legislature to create an artificial right like the right of pre-emption and when the language of the statute admits of a particular right of preemption to be defeated, the Courts should lean in favour of purchaser because the right of pre-emption is a clog on the equity of free alienation of property. The answer to this argument is that the Legislature which has been created by the Constitution must act within the four corners of the fundamental rights which are supreme. The situation created by this interpretation may not violate any express term of the statute, but is replete with the element of discrimination. A Court of law must avoid such interpretation. In Hakim Rai v. The State, 1957-59 Punj LR 223 = (AIR 1957 Punj 134) (FB), Falshaw, J. (as the learned Chief Justice then was) observed as follows:

'Such a discrimination could not in my opinion be regarded as reasonable, but at the same time it must be pointed out that it is not possible to lay one's finger on any particular provision of any of the statutes involved and say that that particular provision offends against Article 14. It is in fact clear that the whole matter depends on the interpretation placed on the relevant statutes by the High Courts, between which there is a division of opinion. In such a matter, I am very strongly of the opinion that the statutes ought to be interpreted by the High Courts in such a way as not to offend against the equality of treatment guaranteed by Article 14 of the Constitution.'

8. In Tirath Singh v. Bachittar Singh, AIR 1955 SC 830, ft was held:

'It is argued that if the language of the enactment is interpreted in its literal and grammatical sense, there could be no escape from the conclusion that parties to the petition are also entitled to notice under the proviso. But it is a rule of interpretation well-established that, 'where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, A construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.'

The aforementioned passage shows that where the language of a statute leads to manifest contradiction of the apparent purpose of the enactment. it would be open to a Court to modify the text so as to carry out the intention of the Legislature and to remove hardship and injustice which were presumably not intended.

9. The same result would follow if Section 15 (2) of the Act is treated as a proviso to Section 15 (1) of the Act It is a settled law that a proviso to a section is not independent to the section calling for independent consideration or construction detached from the consideration to be placed on the main section as it is merely subsidiary to the main section and is to be construed in the light of the section itself. The object of the proviso is to carve out, from the main section, a class or category to which the main section does not apply. A court has to bear in mind what is the class referred to in the section and it must also remember that the carving out intended by the proviso is from the particular class dealt with by the main section and from no other class. The proviso cannot possibly deal with an entirely different topic or subject and is subservient to the main provision.

10. In Ram Narain Sons Ltd. v. Assistant Commr. of Sales Tax, AIR 1955 SC 765, the court observed as follows:

'It is e cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.'

In N. Vajrapuri Naidu v. The New Theatres Carnatic Talkies Ltd., AIR 1960 Mad 108, it was stated thus:

'The proviso is in the nature of a qualification to the first part of the section. The proviso, no doubt states that, notwithstanding the first part of the section, a tenant shall be bound by stipulations made by him as to the erection of buildings in so far as they relate to buildings erected after the date of the contract. To construe this proviso in the manner suggested by learned counsel for the appellants would lead to the result of abrogating the protection given to the tenant by the first part of this section.'

In re Tabrisky, (1947) 2 All, ER 182, an argument was raised that the effect of proviso was to destroy the general power given in the enacting clause. In repelling this contention, the Court of Appeal observed as under:

'That, in my opinion, is a misconception of the effect of the Sub-section. The Sub-section starts with a general power, expressed in very wide language to attach conditions to an order of discharge, and under Sub-section (8) it is competent both to suspend a discharge and to attach conditions. All that the proviso does is to qualify the power to attach conditions, and that qualification is, of course, limited to precisely what the proviso says. It is common learning that the object of a proviso is to cut down or qualify something which has gone before but, once the requirements of this proviso are complied with, there is nothing left to affect or cut down the general power to attach conditions in the body of the Sub-section. The provision which has preceded the proviso is of a general power to give a discharge, absolute or suspend, and to impose conditions of the widest possible kind, and it would be contrary to the ordinary operation of a proviso to give it an effect which would cut down those powers beyond what compliance with the proviso renders necessary.'

The right of pre-emption granted under Section 15 (1) of the Act relates to various types of properties which are sold by an owner. The owner may be a male or a female. Sub-section (2) of this section comes into operation only when the sale of property is made by a female. It does not have the effect of abrogating or repealing or in any way modifying the other provisions of the enacting clause. Its application must be restricted only to those matters governed by it regarding which the general provisions of the statute also cover the field. If these tests are applied to the case in hand to Section 15 of the Act, it becomes clear that Section 15 (2) of the Act only makes an exception in case of right of pre-emption to be exercised in respect of the sales | made by female owners. In all other respects, Section 15 (1) of the Act remains untouched.

11. The observations made in Karta Ram v. Om Parkash. (1971) 73 Pun LR 783 = (AIR 1971 Punj 423) (FB) to the effect that when a case is covered by Section 15 (2) of the Act, the persons mentioned in Section 15 (1) of the Act have no right of pre-emption cannot be regarded as laying down good law in view of the decision of their Lordships of the Supreme Court in Chanan Singh's case (AIR 1970 SC 349) (supra). Once this conclusion is reached, it remains no longer necessary at least for the cases in hand to consider whether a female inheriting the property of her husband before the coming into force of the Hindu Succession Act becomes its full owner not by inheritance but by the force of Section 14 of the said Act. In either case, the tenants and co-sharers would be entitled to enforce the right of pre-emption qua the property sold by her.

12. As a result of the foregoing discussion, Regular Second Appeal No. 590 of 1968 in which a suit for preemption filed by the tenant was decreed by the learned lower appellate Court is dismissed. Similarly, Regular Second Appeal No. 953 of 1969 which arises out of a decree for pre-emption passed in favour of Durga Singh on the basis that he as a co-sharer has a superior right of pre-emption is also dismissed. The parties in both the cases are left to bear their own costs.

Prem Chand Jain, J.

This judgment and order of mine would dispose of Regular Second Appeals Nos. 590 of 1968 and 953 of 1969 as common question of law and fact arises in both these appeals. The facts of R. S. A. 590 of 1968 are as follows:--

13-14. Shrimati Raj Kaur, widow of Karam Singh, sold her agricultural land fully discribed in the plaint, in favour of Prithipal Singh, Narinderpal Singh and Jaswant Singh, defendant-vendees, for a sum of Rs. 35,000/- vide registered sale deed, dated 15th July. 1964. Milkha Singh plaintiff filed a suit for possession by preemption on the ground that he was a tenant and that he had a preferential right. The defendant-vendees contested the suit and denied the allegations of the plaintiff. Various issues were framed on the pleadings of the parties. The trial Court on issue No. 1 held that the plaintiff was a tenant but since the sale was by a female who had succeeded to the land through her husband, the same was not pre-emptible by a tenant. On the basis of the finding on issue No. 1, the suit was dismissed.

15. On appeal, the learned Additional District Judge. Karnal, on the basis of a Division Bench decision of this Court in Jai Singh v. Mughla, (1967) 69 Pun LR 475, held that the plaintiff had a superior right of pre-emption and, accordingly, reversed the finding of the trial Court and decreed the suit of the plaintiff for possession by pre-emption on payment of Rs. 35,000/- minus any amount already deposited by him plus Rupees 4,320/- on acount of expenses for execution and registration of the sale deed. Feeling aggrieved from the judgment and decree of the first appellate Court, the present appeal has been preferred by the vendees.

16. In R. S. A. 953 of 1969 the facts are that Shrimati Tulsan, widow of Prabhu, sold the land in dispute in favour of Mehman Singh and Gurlabh Singh appellants for a sum of Rs. 10,710/-. Durga Singh plaintiff-respondent filed a suit for pre-emption on the ground that he was a co-sharer in the entire Khata out of which the land had been sold to the vendee-appellants. The trial Court decreed the suit on payment of Rs. 11,492.50-which included the sale consideration and expenses incurred in getting the sale deed executed and registered. On appeal, the learned Additional District Judge, Ambala, affimed the finding of the trial Court regarding superior right of preemption claimed by Durga Singh plaintiff, however, he modified the decree of the trial Court to this extent that instead of Rs. 11,492.50. a sum of Rs. 6,216.50 was held to be payable as purchase money, that is, Rs. 5,276/- less be paid into the Court by the plaintiff for payment to the vendee-defendants. In all other respects the appeal was dismissed. Feeling aggrieved from the judgment and decree of the learned Additional District Judge, Mehman Singh has preferred Regular Second Appeal No. 953 of 1969.

17. To start with, the aforesaid two appeals came up for hearing before S. S. Sandhawalia and M. R. Sharma, JJ., but the same were referred to a larger Bench for decision on 21st July, 1972. as the learned Judges were of the view that the decision in Jai Singh's case (1967) 69 Pun LR 475 (supra) deserved to be reconsidered. After reference, the cases were placed before a Full Bench consisting of the learned Chief Justice and Sandhawalia, and Sharma, JJ. During the course of arguments before the Full Bench, an additional point arose for consideration i.e., whether Sub-section (2) of Section 15 of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act). could be presumed as a proviso to Sub-section (1) of the said section or not. For the proposition that persons mentioned in Section 15 (2) of the Act could not claim a right of pre-emption under Section 15 (1), reliance was placed on a decision of the Full Bench (consisting of five Hon'ble Judges) of this Court in Karta Ram v, Om Parkash, 1971-73 Pun LR 783 = (AIR 1971 Punj 423) (FB). Brother M. R. Sharma, J., who prepared the judgment and with whom my Lord the Chief Justice and Sandhawalia, J., agreed, doubted the correctness of that view of the Full Bench with the result that it was considered necessary to refer the cases for decision to a still larger Bench and that is how both these appeals were placed for hearing before us.

18. I have gone through the judgment of my learned brother Sharma J., who has formulated two questions for consideration in these cases. The said two questions are as under:--

'Whether Sub-section (2) of Section 15 of the Punjab Pre-emption Act, 1913, bars the right to pre-emption granted to-

(i) tenants under Section 15 (1) (a) FOURTHLY of the Act; and

(ii) co-sharers under Section 15 (1) (b) FOURTHLY of the Act.'

19. On the aforesaid question,Brother Sharma J., after considering the various judicial pronouncements, has held as follows:--

'The right of pre-emption granted under Section 15 (1) of the Act relates to various types of properties which are sold by an owner. The owner may be a male or a female. Sub-section (2) of this section comes into operation only when the sale of property is made by a female. It does not have the effect of abrogating or repealing or in any way modifying the other provisions of the enacting clause. Its application 'must be restricted only to those matters governed by it regarding which the general provisions of the statute also cover the field. If these tests are applied to the case in hand to Section 15 of the Act- it becomes clear that Section 15 (2) of the Act only makes an exception in case of right of pre-emption to be exercised in respect of the sales made by female owners. In all other respects, Section 15 (1) of the Act remains untouched.'

It has further been observed by M. R. Sharma, J., as under:--

'The observations made in Karta Bam v. Om Parkash, 1971-73 Pun] LR 783 = (AIR 1971 Punj 423) (FB) to the effect that when a case is covered by Section 15 (2) of the Act, the persons mentioned in Section 15 (1) of the Act have no right of pre-emption cannot be regarded as laying down good law in view of the decision of their Lordships of the Supreme Court in Chanan Singh's case (supra) (Chanan Singh v. Smt Jai Kaur, 1970 Punj LR 260 = (AIR 1970 SC 349).) Once this conclusion is reached, it remains no longer necessary at least for the cases in hand to consider whether a female inheriting the property of her husband before the coming into force of the Hindu Succession Act becomes its full owner not by inheritance but by the force of Section 14 of the said Act. In either case, the tenants and co-sharers would be entitled to enforce the right of pre-emption qua the property sold by her.'

20. After arriving at the aforesaid conclusions as is evident from the observations reproduced above, Brother Sharma, J., did not consider it necessary for the cases in hand, to decide whether a female inheriting the property of her husband before the coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as the Succession Act) becomes its full owner not by inheritance but by the force of Section 14 of the said Act. However, I find from the referring order both of the Division Bench (consisting of S. S. Sandhawalia and M. R. Sharma, JJ.) and the Full Bench (consisting of R. S. Narula, C. J. and Sandhawalia and Sharma, JJ.) that even on the question whether a female inheriting the property of her husband before the coming into force of the Succession Act become its full owner not by inheritance but by the force of Section 14 of the said Act, opinion has been expressed inasmuch as doubt was cast on the correctness of the Division Bench decision in Jai Singh's cue (1967) 69 Pun LR 475 (supra). In this situation, for the purpose of deciding the controversy in these appeals I am treating the view expressed by brother M. R. Charma, J., in the referring order with regard to the correctness of the decision in Jai Singh's case (supra) to be part of his judgment now rendered.

21. It may be observed at the out set that if the view expressed in Jai Singh's case (1967) 69 Pun LR 475 (supra) is held to be laying down the correct law then the other question whether Sub-section (2) of Section 15 of the Act bars the right of pre-emption granted to-

(i) tenants under Section 15 (1) (a) fourthly of the Act, and

(ii) co-sharers under Section 15 (1) (b) fourthly of the Act, does not arise. It is in this background that I propose to deal with the arguments which were advanced at the bar for and against the view taken in Jai Singh's case (supra).

22. In order to find out if Jai Singh's case (1967) 69 Pun LR 475 has been correctly decided, it would be essential to deal with the nature of the property that was held by a widow before the enforcement of the Succession Act and also the resultant effect of Section 14 on such property held by her. It is a well settled proposition of law that before the Succession Act came into force, a Hindu widow, whether governed by Hindu Law or Customary Law, only acquired a limited estate in the property to which she succeeded as an heir. The estate which the Hindu widow takes is a qualified proprietorship with powers of alienation for purely wordly or secular purposes, only when there is a justifying necessity and the restrictions on the powers of alienation are inseparable from her estate. In fact, her estate is one interposed only for a limited purpose between that of her husband and the next heir. On her death, succession is not to her but to her husband's heirs.

23. The restrictions which are imposed on the Hindu widow's power of alienation, are not merely for the protection of the material interest of her husband's relations, but by reason of the opinion expressed by all the Smriti writers. As regards the limited power of disposal possessed by a female, according to Hindu Law restriction was the rule, absolute power the exception. Katyayana says: 'Let the childless widow, preserving unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her, let the heirs take it. But she has no property therein to the extent of gift, mortgage, or sale' (quotation reproduced from Mayne's Hindu Law at page 766). If e widow makes any unauthorised alienation, then the same is subject to control by the husband's reversioners. The control could be exercised by challenging the alienation by a declaratory suit filed within the prescribed period of limitation. If the alienation is not for legal necessity or if a squatter has acquired title by adverse possession against the widow, neither the alienation nor the rights of the adverse possessor could affect the reversioner's estate at all. These rights have their origin in act or omission of the widow which are not binding on the husband's estate. They are in reality dependent upon the widow's estate and if the widow's estate is extinguished by her adopting a son or marrying again, these rights must also cease to exist. So this was the nature of widow's estate prior to the enforcement of the Succession Act, and the same could appropriately be analysed thus: that after succession a widow is only entitled to the full beneficial enjoyment of the estate and is not accountable to any one, that she cannot alienate the properties unless it be for legal necessity or benefit to the estate; that on remarriage or on her adopting a son, the widow's estate is extinguished and an end is put to her estate and that after her death, the heirs of her husband succeed as she is never a fresh stock of descent. After the enforcement of the Succession Act, by virtue of Section 14, a widow became the full owner of the property possessed by her, whether acquired before or after the commencement of the said Act. The Succession Act overrides inter alia the old law in respect of property possessed by a female. This act confers full heritable capacity on the female heir and Section 14 dispenses with the traditional limitations on the powers of a female Hindu to hold and transmit property. The effect of the rule laid down in this section is to abrogate the stringent provisions against the proprietary rights of a female which were often regarded as evidence of her perpetual tutelage and to recognise her status as independent and absolute owner of property. The expression 'full owner' has been used in the section in the sense of absolute ownership and in contradistinction of the term 'limited owner' which had received special significance under the old law. The expression 'full ownership' is used in this section in the context of property and denotes a right indefinite in point of user, unrestricted in point of disposition, unlimited in point of duration and heritable as such right, by the heirs of the owner.

24. Keeping in view the nature of widow's estate prior to the enforcement of the Succession Act and the nature of the property held by a female after the enforcement of the said Act, the question that arises for consideration is whether after the enforcement of the said Act anything new has come into being, that is. whether the property that was possessed by the widow before the Succession Act has remained the same or whether by operation of law something new has come into being. In my view the answer has to be that, after the enforcement of the Hindu Succession Act, a widow, by operation of law, got something new and what was possessed by her prior to the enforcement of the said Act, got merged into the absolute rights thereby making her full owner of the property. What was argued before us was that nothing new came into being, that a Hindu widow when she succeeds to her husband, succeeds as a matter of right and her position is of an owner, that her right is In the nature of a right of property, that the right of the reversioners is a mere spes successionis, that a Hindu widow could enjoy the fruits of the property inherited by her without any let or hindrance from any quarter and that nothing new came into existence after the enforcement of the Succession Act Our attention was drawn to the following observations of their Lordships of the Privy Council in Janaki Ammal v. Narayana-sami Aiyer, 43 Ind App 207 = (AIR 1916 PC 117):--

'The rule of the Hindu lew with regard to the nature of the widow's estate may have been subject to various forms of expression, but in substance it is not doubtful. Her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but, to use the familiar language of Mayne's Hindu Law, paragraph 625, p. 870. 'so long as she is alive no one has any vested interest in the succession'.'

25. Our attention was further drawn to the following observations of their Lordships of the Supreme Court in Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83:--

'When a Hindu widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her. She fully represents the estate, the interest of the reversioners therein being only spes successionis. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but, this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu Law.'

26. As earlier observed, the main argument on the basis of the aforesaid authorities and otherwise was that a Hindu widow after succeeding to her husband was in the position of an owner and her right was in the nature of a right of property and, therefore, after the Succession Act, nothing new came into being.

27. I am afraid, I am unable to agree with this contention of the learned counsel. A Hindu widow before the Succession Act had only a right of beneficial enjoyment of the estate and for that purpose she was allowed to succeed to the property of her husband. She was termed to be the owner as she succeeded to the property after the death of her husband. But that ownership was hedged in by certain delimitations on her right of disposal by acts inter vivos and also on her testamentary power in respect of that property, in other words she did not have full dominion over that property.

28. Section 14(1) of the Succession Act removed all the disability and conferred full rights of ownership and clearly laid down that 'any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner'. It is thus clear that an absolutely new status was conferred on a female Hindu so much so that after the commencement of the Succession Act, the widow who became full owner of the property would be succeeded by the heirs given in Section 15 of the said Act and not by the heirs of her husband, but prior to the enforcement of the Succession Act, the heirs of the husband were to succeed as she was never a fresh stock of descent. In my view it would be unjustifiable to argue that for the property to which a widow has succeeded after the death of her husband prior to the enforcement of the Succession Act- the use of the terminology 'limited estate' has got no significance; rather the words 'limited estate' depict the real nature of the property possessed by the widow. It is not that the words 'limited estate' have been used without any significance, but the same find mention in Sub-section (3) of Section 3 of the Hindu Women's Rights to Property Act, which describes the nature of the interest which devolves on a Hindu widow. The said Sub-section reads as under:--

'Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.'

29. The decisions of their Lordships of the Supreme Court and of the Privy Council do not help the appellants. The observations reproduced above from those decisions do not go to show that the widow could be termed as full owner of the property. Whatever right devolves on a widow is certainly a right of property; so also till the time she remains in possession she is to be termed as owner as none else can claim possession from her nor can she be disturbed from enjoying fruits of that property. But the real right of a full owner, that is, right of alienation, does not exist in the widow and that is why the aforesaid law deci-cribes the right as a limited right or limited interest or limited estate. The very word 'limited' shows that the widow did not have perfect and absolute title to the property. The moment Succession Act came into force, her limited rights ceased to exist and lost their identity and she became a full owner and had complete control over the property which by operation of law assumed entirely a new shape. To this property she never succeeded through her husband. This property came into her hands by operation of law. The rights before the Succession Act were limited and after the said Act came into being, the same were annihilated with the result that smaller rights merged into greater and absolute rights thereby dissolving the erstwhile, life estate.

30. In Stroud's Judicial Dictionary, Volume III- at page 1781, 'merger' is defined as follows:--

'Whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated or, in the law phrase, is said to be merged, that is sunk or drowned in the greater.'

In Corpus Juris Secundum, Volume 57, at page 1068, 'merger' is explained in the following words:--

' 'merger' is defined generally as the absorption of a thing of lesser importance by a greater whereby the lesser ceases to exist, but the greater is not increased, and an absorption of swallowing up so as to involve a loss of identity and individuality.

In law it is the absorption or extinguishment of one estate or contract in another. It is said that merger is an operation of law not depending on the intention of the parties.''

In Aiyar's Law Lexicon (1940 edition) at page 809 'merger' is defined as below:--

' 'Merger' is the 'destruction or drowning' by operation of law of the less in the greater of two estates coming together and vesting without any intervening estate in one and the same person in the same right.'

31. What was once the life estate of the widow to which she succeeded through her husband had thus been annihilated on the coming into force of the Succession Act as the lesser estate merged into a greater estate created by the operation of law. Taking this view of the matter, it is clear that the sale by a widow who acquired the absolute ownership by operation of law under Section 14(1) of the Succession Act is pre-emptible under Sub-section (1) and not under Sub-section (2) of Section 15 of the Act and I hold accordingly, and I find myself in full agreement with the observations and findings of the learned Judges in Jai Singh's case (1967) 69 Pun LR 475 (supra), which read as under:--

'............ that a widow who originally succeeded to some land or property through her husband as a limited owner under the Hindu Law, is not deemed to have 'succeeded' to the absolute and full ownership of the estate in the said land or property which she acquires under Section 14(1) of the Hindu Succession Act, on the coming into force of the said provision, by the merger of her lesser estate into the greater one, within the meaning of Clause (b) of Sub-section (2) of Section 15 of the Pre-emption Act, and that, therefore, a sale of such absolute estate by her after the coming into force of the Succession Act, is pre-emptible under Sub-section (1), and not under subsection (2) of Section 15.'

32. As a result of the aforesaid discussion and findings, the two questions posed by brother Sharma, J., referred to above, do not arise and need not be answered.

33. No arguments were advanced on the merits and, in view of my finding on the legal question referred, I dismiss both these appeals (R. S. As. 590 of 1968 and 953 of 1969) and maintained the judgments and decrees of the first appellate Court. I make no order as to costs.

R. S. Narula, C. J.

34. I agree with Jain, J.

S. S. Sandhawalia, J.

35. I agree with Jain, J.

Man Mohan Singh Gujral, J.

36. I agree with Jain, J.


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