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Pala Singh Vs. Sukha Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 67 of 1948
Judge
Reported inAIR1952P& H156
ActsTenancy Law; Punjab Tenancy Act, 1887 - Sections 59; Punjab Pre-emption Act, 1913 - Sections 15
AppellantPala Singh
RespondentSukha Singh and anr.
Appellant Advocate Shamair Chand, Adv.
Respondent Advocate N.C. Mehra, Adv.
DispositionAppeal dismissed
Cases ReferredAhmad Khan v. Jang Baz Khan
Excerpt:
.....and held that the landlord's failure to proceed under section 53 of the tenancy act did not debar him from claiming pre-emption in his capacity as an occupancy tenant......land belonging to a person who dies without leaving any heirs escheats to the state, similarly a right of occupancy belonging to a tenant who dies without leaving any (heirs?) devolves on the landlord. according to him the state in the first case and the landlord in the second must be deemed to be heirs of the deceased land-holder and must be deemed to inherit the land or the occupancy rights in their capacity as such. no authority has been cited in support of this proposition.5. the contention appears to me to be wholly devoid of force. the expression 'inherit' which appears in section 15 of the pre-emption act has not been defined and it is necessary therefore to refer to an english dictionary for ascertaining the meaning that may properly be assigned to it. according to the shorter.....
Judgment:

Bhandari, J.

1. The short point for decision in the present case is whether a landlord is an heir under Section 59 of the Punjab Tenancy Act and consequently whether he has a right to pre-empt the sale of occupancy rights under the provisions of Section 15 of the Punjab Pre-emption Act.

2. The facts of the case are simple and not in dispute. Allah Ditta and Midu who are occupancy tenants under Section 5 of the Punjab Tenancy Act in a plot of land belonging to Pala Singh offered to sell these rights to him under the provisions of Section 53 of the said Act. He omitted to avail of the offer and the rights were accordingly sold to Sukha Singh, Arjan Singh and Atma Singh for a sum of Rs. 3,092/-. About a year later Pala Singh brought a suit for possession by pre-emption on the ground that as he was owner of the land in question his right of pre-emption was superior to that of the vendees who were neither owners nor co-sharers in the Patti in which the land was situate. The trial Court came to the conclusion that the landlord is not ah heir under Section 59 of the Tenancy Act and consequently that he is not entitled to pre-empt a sale under Section 15 of the Punjab Pre-emption Act, This decision was upheld both by the learned District Judge and by a learned Single Judge of this Court. The landlord is dissatisfied with the order and has come to this Court in appeal under Clause 10 of the Letters Patent.

3. Although the framers of the Punjab Tenancy Act were anxious to confer valuable rights on tenants who had cultivated lands in their occupation for long periods they were equally anxious to safeguard the interests of landlords and to preserve them from harm at the hands of strangers. It 'was in view of these considerations that Sections 53 to 59 were enacted. Section 53 imposes a statutory obligation on an occupancy tenant who wishes to part with his rights of occupancy to cause a notice of his intention to be served on his landlord and to invite him to purchase the rights at such price as may be fixed by the Revenue Officer. If an offer is made to the landlord and he accepts the offer the sale is complete and the occupancy rights are extinguished. If no offer is made to him and the occupancy, rights are sold to a stranger without his consent the landlord is at liberty to sue for a declaration under Section 60 of the Tenancy Act that the alienation is void and of no effect. If an offer is made to the landlord and he rejects the offer it is obvious that he is precluded by his conduct from having the sale declared null and void.

4. Mr. Shamair Chand who appears for the landlord in the present case admits the correctness of the propositions enunciated above, but he contends that as a landlord he is an heir under Section 59, Punjab Tenancy Act, and as he is one of the persons who, but for the sale would be entitled, on the death of the vendor to inherit the property sold he has a right of pre-emption under Section 15 of the Punjab Pre-emption Act. He contends that just as a plot of land belonging to a person who dies without leaving any heirs escheats to the State, similarly a right of occupancy belonging to a tenant who dies without leaving any (heirs?) devolves on the landlord. According to him the State in the first case and the landlord in the second must be deemed to be heirs of the deceased land-holder and must be deemed to inherit the land or the occupancy rights in their capacity as such. No authority has been cited in support of this proposition.

5. The contention appears to me to be wholly devoid of force. The expression 'inherit' which appears in Section 15 of the Pre-emption Act has not been defined and it is necessary therefore to refer to an English Dictionary for ascertaining the meaning that may properly be assigned to it. According to the Shorter Oxford Dictionary the expression means:

'to put one in possession as heir; to take or receive (property, especially realty or a right, title, etc.) as heir of the former possessor (usually an ancestor) at his decease; to get by legal descent or succession.'

The expression 'heir' means 'one who on the death of another becomes entitled by law to succeed him in the enjoyment of property or rank; one who so succeeds popularly one who receives or is entitled to receive property of any kind as the legal representative of a former owner.'

Judged in the light of the meanings assigned to these expressions it seems to me that a landlord can be regarded as an heir if he is entitled to receive the occupancy rights in his capacity as the legal representative of the deceased occupancy tenant. It has not been alleged, far less proved, that a landlord is a legal representative of his occupancy tenant.

6. Secondly, a perusal of Section 59 makes it quite clear that a landlord cannot be an heir to his tenant. This section regulates 'succession to right of occupancy'. Sub-section (1) specifies the persons on whom the right of occupancy is to devolve but it does not say that the landlord is one of them. Sub- Section (4) provides that if the deceased tenant has left no such persons as are mentioned in Sub-section (1) 011 which his right of occupancy may devolve under that Sub-section, the right shall be extinguished. If Section 59 is designed to regulate 'succession to right of occupancy' and if the right of occupancy ceases to exist as soon as tenant dies heirless, it is obvious that there can be no question of succession to a non-existent right. It follows as a corollary that the landlord cannot be regarded as an heir. It is true that for all practical purposes the right of occupancy devolves on the landlord and merges in the right of ownership, but this fact alone is not in my opinion sufficient to establish that the landlord becomes an heir or inherits the right of occupancy. If fie legislature had intended to confer a right of pre-emption on a landlord it would have made its intention plain by including him in the list of heirs set out in Sub-section (1) of Section 59.

7. Thirdly, it seems to me that as the legislature has already made adequate provision for safeguarding-the interests of the landlord it was not necessary to confer another right of pre-emption on him by including him in the list of heirs mentioned in Sub-section (1) of Section 59. Section 53 clearly confers a right of pre-emption (or a right analogous to a right of pre-emption) on the landlord even before the sale is actually made by the tenant. It is not an illusory but a substantial right. Section 60 empowers the landlord to avoid the sale and later to force the tenant to sell the occupancy rights at a low price. If the landlord is not prepared to exercise either of these two rights the law is naturally entitled to presume that he is not interested in the purchase of occupancy rights. It was thus unnecessary for the legislature to confer yet another right of pre-emption on him under the provisions of Section 15 of the Punjab pre-emption Act.

8. Lastly, it must be remembered that as the right of pre-emption encroaches upon the right of a person to dispose of his property to the best possible advantage it must be regarded as a piratical right and the provision which confers this right Should be strictly construed. In other words, a person who claims a right of pre-emption must prove beyond the shadow of a doubt that this right has been conferred upon him by law and if he is unable to bring his case within both the letter and the spirit of the law his claim to pre-emption must be rejected.

9. No authority has been cited before us which States in express terms that a landlord is not an heir under Section 59 of the Tenancy Act and is not entitled to pre-empt a sale under Section 15 of the Preemption Act, but there are at least two authorities which appear to support the correctness of this proposition with reasonable certainty. In 'Sardar Ali v. Jiwan Singh', 22 Pun Re 1901, a tenant gave notice to his landlords under Section 53 of his intention to sell his right of occupancy, but as none of them accepted the offer the tenant sold his right to a third person. Thereupon one of the landlords who was also an occupancy tenant in the estate within the limits of which the property was situate brought a suit for possession by pre-emption on the ground that he was an occupancy tenant in the village and that his right of pre-emption was superior to that of the vendee.

10. One of the contentions put forward before the Chief Court was that the landlord having failed to exercise his right as a landlord under Section 53 was debarred from claiming in any other capacity. The Chief Court repelled this contention and held that the landlord's failure to proceed under Section 53 of the Tenancy Act did not debar him from claiming pre-emption in his capacity as an occupancy tenant. Discussing this aspect of the question Held, J. observed as follows:

'Now Section 53 affects only landlords; while under Section 13 an occupancy tenant may claim, and I see no reason against an individual who combines Doth qualifications, electing to claim under either.'

11. This decision makes it quite clear that according to the learned Judge the landlord in that case could pre-empt the sale in two capacities, namely (a) in his capacity as a landlord who had been invited to purchase the occupancy rights under Section 53 of the Tenancy Act and (b) in his capacity as an occupancy tenant of agricultural land in the village who had a right to claim pre-emption under the provisions of the Punjab Pre-emption Act. He did not mention expressly or by implication that the landlord was an heir under Section 59 of the Tenancy Act and that in his capacity as such he had a third right to pre-empt the sale under the provisions of the Punjab Pre-emption Act. This omission is significant and can be attributed only to the fact that the learned Judge did not think that the Punjab Pre-emption Act had conferred any right upon a landlord in his capacity as such to pre-empt a sale of occupancy rights.

12. The next authority which has a bearing on the point of law which has arisen in the present case is 'Ahmad Khan v. Jang Baz Khan', AIR (11) 1924 Lah 210. In this case Campbell, J. held that the landlord of an occupancy tenancy (qua landlord) is not entitled to sue under Section 21 of the Punjab Pre-emption Act, 1913, for pre-emption of that tenancy against a person having a superior right of pre-emption under Section 15 (a) (b) of the said Act. According to the learned Judge landlords have no rights at all under the Pre-emption Act, and hence the landlords in that case could not succeed against the co-sharers. In the course of his judgment the learned Judge observed as follows:

'He (the landlord) has come into Court as a plaintiff to assert a right which he does not possess under the law of pre-emption. * * * His position is much more favourable than that of any pre-emptor, and this is why we find that Section 15 of the Punjab Pre-emption Act confers a right on an occupancy tenant to pre-empt his landlord's proprietary land (Section 15(c) 'fourthly) but confers no right on the landlord to preempt in that capacity his occupancy tenant's rights in land owned by himself, and confers a right to pre-empt those rights upon other persons, who are owners in the same estate but otherwise are in no way connected with the tenancy.'

13. The only other case which requires to be noticed is the decision of Falshaw, J.. himself which is now under appeal. While referring to the provisions of Section 59 of the Punjab Tenancy Act, the learned Judge observes as follows: 'The argument of the learned counsel for the appellant is that in view of the heading and the marginal summary and the contents of the section read together, the fact that the landlord is mentioned in sub-section (4) means that he is also to be regarded as an heir. It is, however, quite clear from the words of the section that the position of the landlord of a deceased occupancy tenant is quite different from that of any of the other persons mentioned in the section, and that when land occupied by a tenant who dies without heirs reverts to the landlord, the latter does not succeed to the land as an heir, but his already existing proprietary right in the land becomes supplemented by the right also to enter into possession of the land through the extinction of the occupancy rights of the deceased tenant. He is therefore not an heir and so not a person entitled to bring a suit for pre-emption under Section I5(c) 'thirdly' of the Pre-emption Act.'

14. For these reasons I entertain no doubt in my mind that a landlord cannot be regarded as an heir to a deceased occupancy tenant. It may be that when an occupancy tenant dies without leaving any heirs his occupancy rights merge in the rights of ownership of the landlord and for all practical purposes devolve on the landlord but this devolution takes place not because the landlord is an heir but because the rights themselves have ceased to exist I would accordingly uphold the order of the learned Single Judge and dismiss the appeal with costs.

Soni, J.

15. I agree.


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