D. Falshaw, C.J.
1. The facts in this appeal under Clause 10 of the Letters Patent are that 121/2 bighas of land were sold by three joint owners, Ind Kaur, the widow, and Balkar Singh and Nichhatar Singh two sons of Tarlok Singh. The sale was preempted by the present respondents Bakhwant Singh and Mohinder Singh, minor sons of another wife of Tarlok Singh named Karam Kaur.
2. The trial Court held that the plaintiffs had a right of pre-emption under Section 15 (1)(c), secondly, of the Punjab Preemption Act as amended in 1960 in respect of the two-thirds shares of the land sold by their half-brothers and that the price paid was Rs. 3,200.00 and not Rupees 5,000.00 as showed in the sale deed, but a decree was nevertheless passed for possession of the two-thirds of the land on payment of Rs. 3,200.00.
3. The plaintiffs appealed regarding the dismissal of the suit relating to one-third share of Ind Kaur and cross-objections were filed by the vendees in which inter alia they disputed the plaintiffs right of pre-emption. The defendants' cross-objections were accepted by the learned District Judge who dismissed the suit on the finding that the plaintiffs had no right of pre-emption. This was based on the finding that it was not proved that their mother Karam Kaur was legally wedded to Tarlok Singh. When the plaintiffs appeal came before the learned Single Judge he found it necessary to obtain a report from the trial Court on the question whether the plaintiffs were the legitimate sons of Tarlok Singh, which had never been placed in issue at the trial. The correctness of the report of the lower Court to the effect that Tarlok Singh had married Karam Kaur as his second wife and that the plaintiffs were his sons born in wedlock is not now disputed. The learned Single Judge further found that while he could not go into the finding of the lower Court to the effect that the payment of Rs. 1,800,00 a few days before the registration of the sale deed was not proved, there was a finding that the market value of the land was Rs. 400.00 per bigha and that therefore the ostensible price of Rs. 5,000.00 represented the market value of the land. He also found that the plaintiffs were entitled to pre-empt the sale of the whole of the land including the share of Ind Kaur, this being on the basis of the decision of Gurdev Singh J. in Nathi Singh v. Lakhmi Chand. R.S.A. No. 1616 of 1960, D/-20-3-1962 (Punj). This decision has subsequently been upheld by Dulat and R.P. Khosla JJ. in L.P.A. No. 270 of 1962 D/-21-5-1965 (Punj). He accordingly granted the plaintiffs a decree for the whole of the land in suit on payment of Rs. 5,000.00 and the present appeal is by the vendees.
4. On behalf of the appellants it has been contended that the plaintiffs had no right of pre-emption at all, or alternatively, that even if they had a right to pre-empt the shares of their half-brothers, they could not in circumstances pre-empt the sale so far as it concerned the share of Ind Kaur. By the amendment introduced in 1960 section 15 of the old Act was remodelled and apart from the fact that a right of pre-emption based on consanguinity was generally cut down to the closest relations, sales by sole owners were separated from sales by all the joint owners of joint property and a new Sub-section (2) was introduced to deal with sales b females or their children, an amendment on these lines being necessary consequence of the enactment of the Hindu Succession Act of 1956 by which so-called widows' estates were converted into full ownership.
5. The present sale is by all the joint owners and the plaintiffs' right of pre-emption was based on 'secondly' in Sub-section (1) (c) 'brothers or brother's sons of the vendors' It was contended that the plaintiffs are not brothers, but only half-brothers of two of the vendors. On the point T have no hesitation in holding, even in the absence of any authority, that in this context where a landowner has sons by more than one wife all the sons are brothers for the purpose of 'secondly' and therefore the plaintiffs could certainly pre-empt the sale so far as it concerned the two-thirds share? of their half brothers.
6. The more difficult part of the case arises in connection with the one-third share of Ind Kaur In Nathi Singh's case, R. S. A. No. 1616 of 1960 D/- 20-3-1962 (Punj) which was relied on by the learned Single Judge the facts were' that the impugned sale was made by a man named Sohan Lal and his two nephews Khillu and Faquiria who were the sons of Sohan Lal's deceased brother Dalip Chand The pre-emptors in the suit were a son of Khillu and a son of Faqiria and it would not appear according to the provisions of section 15 (1) (c) secondly the plaintiffs had any right of pre-emption in respect of the share of the land owned by Sohan Lal who was the brother of their grand-father The amending Act of 1960 had come into force during the pendency of the first appeal in that case and the appellate Court modified the decree of the trial Court which was under the unamended section and decreed the suit only in relation to 5/8ths of the land which was the share of the fathers of the plaintiffs on payment of 5/8ths of the sale price However, Gurdev Singh J. relied on the provisions of section 13 of the Act which reads:
'Whenever according, to the provisions of this Act a right of pre-emption vests in any class or group of persons the right may be exercised by all the members of such class or group jointly, and. if not exercised by them all jointly by any two or more of them jointly, and. if not exercised by any two or more of them jointly, by them severally.'
The learned Judge before whom it does not seem any of the older decisions were cited thought that this was a sufficient ground for holding that the plaintiffs in that case were entitled to pre-empt the whole sale. It would seem from the judgment in the Letters Patent Appeal against his decision that it was affirmed without any real discussion of his reasons.
7. It seems surprising that no one thought of referring to the earlier decisions in view of the fact that, as would appear from page 122 onwards of the 1960 Edition of Ellis's 'Law of Pre-emption in the Punjab', although there was some divergence of views regarding whether a pre-emptor need bring a suit regarding the whole property sold where he only enjoys a superior right of pre-emption in respect of part of it, there was no divergence at all about the view that he could only pre-empt the sale regarding that property in respect of which he enjoyed a right of pre-emption superior to that of the vendees.
8. It seems to me that Section 13 is not intended to confer any right of preemption and that all that it means is that one out of a group of persons on whom a right of pre-emption is conferred can exercise that right alone when others are not inclined to do so, but he can only do so in respect of the whole of the land sold by joint owners if he enjoys a right of preemption in respect of each of the vendors, and the decision in Nathi Singh's case, RSA No. 1816 of 1960 D/- 20-3-1962 (Punj) appears to me to require reconsideration.
9. A difficult point also arises on the alternative case on the point whether the plaintiffs otherwise enjoyed a right of preemption in respect of the share of Ind Kaur under the provisions of Sub-section (2) of Section 15. It would seem in the present case that Ind Kaur's share of the land came to her from her husband and Sub-section (2) (b), as amended in 1960, read
'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 preemption shall vest--First, in the son or daughter of such female;
By Act XIII of 1964 this was amended so that now it reads
'First, in the son or daughter of the husband of such female '
If the first clause is construed literally as it stood after the amendement in 1960 the plaintiffs, being only the step-sons of Ind Kaur would not enjoy a right of pre-emption regarding the land sold by her in spite of the fact that it would appear that the intention of the Legislature was that the sons in a case of this kind were entitled to derive their right of pre-emption from the fact that the land had belonged to their father The question thus arises whether the amendment of 1964 was a mere clarification of the original intention and also whether, if it was not, the existing decree could still be maintained in this appeal in favour of the plaintiffs on the basis of the amendment. I accordingly order that the case be referred to a Full Bench.
H.R. Khanna, J.
10. I agree.