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Mohinder Singh and ors. Vs. Smt. Balbir Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 134 of 1968
Judge
Reported inAIR1968P& H545
ActsPunjab Pre-emption Act, 1913 - Sections 15 and 15(2)
AppellantMohinder Singh and ors.
RespondentSmt. Balbir Kaur and anr.
Appellant Advocate J.N. Kaushal and; Ashok Bhan, Advs.
Respondent Advocate A.C. Hoshiarpuri, Adv.
DispositionAppeal allowed
Cases ReferredGulraj Singh v. Mota Singh
Excerpt:
.....application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - (2) whether the sale price was actually paid or fixed in good faith? the vendees who filed the appeal against the judgment and decree of the trial court were unsuccessful before the district judge, sangrur. this argument is without merit, as it is specifically stated in the will, that he was making them (daughters) full owners like himself. the word clearly conveyed the idea of succession and not of transfers inter vivos, including gifts......village immoveable property shall vest -- (a) xxxx(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 daughter's 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) xxxx (2) notwithstanding a 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.....
Judgment:

Tek Chand, J.

1. This is a regular second appeal preferred by the defendant vendees against the plaintiffs-pre-emptor from the judgment and decree of the District Judge, Sangrur, affirming that of the trial Court decreeing the suit of the plaintiffs-preemptor.

2. The facts of this case are that one Bagga Singh executed a will on 18th of August, 1948 (Exhibit P/l) in favour of his five daughters stating that his five daughters would become in equal share, owners in possession enjoying the same rights as the testator. He died in 1949. Gurmit Kaur, one of his five daughters, sold her share of the land for Rs. 29,000 to defendants 1 to 8 on 8th of December, 1964. Balbir Kaur, sister of Gurmit Kaur, vendor, instituted a suit for possession by pre-emption on the ground that she was a co-sharer and as such could preempt the sale under Section 15 of the Punjab Pre-emption Act. The defendants-vendees resisted the suit on several grounds which gave rise to the following issues:--

(1) Whether the plaintiff got a right of pre-emptor with regard to the sale in dispute.

(2) Whether the sale price was actually paid or fixed in good faith?

(3) If issue No. 2 is not proved, what is the market value of the land in suit?

(4) To what extent, the defendants-vendees are entitled to claim as deed and registration expenses?

(5) Whether the part of land in suit was Banjar Qadim at the time of the sale and the same has been reclaimed by the vendees-defendants and if so, to what effect?

(6) Relief.

Arguments have been addressed on the first issue only and there is no longer any dispute on issues 2 to 5. The trial Court decreed the plaintiff's suit directing the plaintiff to pay or deposit into Court the sum of Rs. 30858/50 P. after deducting the part of the sale price already paid into Court on or before 2nd November, 1967, failing which the suit of the plaintiff would stand dismissed with costs. The vendees who filed the appeal against the judgment and decree of the trial Court were unsuccessful before the District Judge, Sangrur.

3. They have now come up in second appeal to this Court and the only point which calls for a decision is whether the plaintiff had a right of pre-emption under Section 15 of the Punjab Preemption Act.

The relevant provisions are reproduced below:--

'15(1) The right of pre-emption in respect of agricultural land and village immoveable property shall vest --

(a) xxxx

(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 daughter's 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) xxxx

(2) Notwithstanding a 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 preemption 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 husband of the female;

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

The plaintiff has asserted her pre-emptive right as a co-sharer along with her other sisters and has contended that the right of pre-emption vests in her under Section 15(1) (b) Fourthly. Sub-section (2) of Section 15 is in the nature of non obstante clause and is an exception to the rule laid down in Sub-section (1). Where Sub-section (2) applies, the provisions of Sub-section (1) do not operate. The only question calling for determination is whether Sub-section (2)(a) governs the case. It is argued on behalf of the appellants that the sale was by a female of land to which she had succeeded 'through her father', and therefore, it could be pre-empted by her brother or brother's son and not by her sister.

4. The lower courts took into consideration two points in plaintiff's favour. Firstly, it was said that Bagga Singh on his death in 1949 had left two widows Kishan Kaur and Dhan Kaur. As he had died before coming into force of the Hindu Succession Act, his widows were preferential heirs both under the Hindu Law and the Punjab Customary Law-Had it not been for the will, his daughters were not entitled to succeed to the property on his death in preference to the two widows. Consequently, it could not be said that the vendor Gurmit Kaur had succeeded to the property 'through her father' because she had got the property under the will. The lower Courts also held, that the daughters did not succeed to their property as full owners but as limited owners. They became absolute owners under Section 14(l)(a) of the Hindu Succession Act, 1956 and they therefore, could not be said to have succeeded to the full ownership through their father. This argument is without merit, as it is specifically stated in the will, that he was making them (daughters) full owners like himself. Besides, there is the authority of the Supreme Court that there is no warrant for the proposition that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property unless such power is expressly conferred upon her. If the words used are of such amplitude as would convey full rights of ownership, then absolute estate is deemed to have been conveyed to a Hindu female, vide Ram Gopal v. Nand Lal, AIR 1951 SC 139. The above decision of the Supreme Court followed similar view held by the Privy Council in Rajendra Prasad v. Gopal Prasad, AIR 1930 PC 242 and in Sasiman Chowdhurain v. Shib Narain. AIR 1922 PC 63. This view was later affirmed by the Supreme Court in Nathoo Lal v. Durga Prasad, AIR 1954 SC 355 The decision of the Division Bench in Jai Singh v. Mughla, (1967) 69 Pun LR 475 relied upon by the learned District Judge is distinguishable on facts as in that case, a widow had originally succeeded as a limited owner. In this case, there is no doubt left in the will of the testator that he conveyed absolute ownership to his daughters.

5. The next question is whether in this case it can be said in the language of Section 15(2)(a) of the Act that Gurmit Kaur, vendor, had succeeded to the land through her father The expression 'succeeded to' means 'to come next after as by descent', or 'to take the place of another as by election or appointment'. Succession has been defined as the act or right of legal or official investment with a predecessor's office, dignity, position or functions; also the legal or actual order of so succeeding. In its technical sense, it denotes the devolution of title to property under the laws of descent vide 63 C. J. S. page 769. The term 'descent' is sometimes used synonymously with 'inheritance', but 'succession' is a term of wider dimensions than 'descent', though frequently succession and descent are used synonymously. Succession may be hereditary, intestate or testamentary. The word 'Succession' excludes those who take by deed, grant, gift or any form of purchase or contract. The term 'succession' refers to persons who succeed deceased persons whether by will or on intestacy. 'Succession' is broadly used to denote the devolution of title to any real estate including disposition by will or by laws of descent. The law in India refers to both intestate and testamentary succession. The Indian Succession Act of 1925 was 'an act to consolidate the law applicable to intestate and testamentary succession'. Part V containing Sections 29 to 56 deals with 'intestate succession' and Part VI containing Sections 57 to 191 relates to 'testamentary succession'. The Hindu Succession Act of 1956 also refers to intestate succession, vide chapter II and testamentary, vide chapter III. It cannot therefore, be argued with reason that the word 'succeeded' in Section 15 of the Act or its cognate expressions are confined to succession on intestacy. In Kahla Singh v. Rajinder Singh, (1966) 68 Pun LR 589, a Division Bench, while considering Section 15(2) of the Punjab Pre-emption Act observed that the word 'succeed' as used in the sub-section indicated that, the property was such as a female got on the death of relatives mentioned therein. The word clearly conveyed the idea of succession and not of transfers inter vivos, including gifts. The word succession in the Indian enactments related to devolution of property on the death of a person. It was further said, that 'succession' referred to those who by descent or will took the property of a descendant. Reference may also be made to Girdharilal Gangrade v. Fatehchand, AIR 1955 Madh B. 148. At p. 153, Dixit J. said:--

'The word 'succession' in its generic meaning no doubt includes devolution of a person's property whether by survivorship, devise or inheritance. In its narrow and technical sense, it is confined only to the modes of devolution by devise or inheritance.'

6. Stress was laid by the learned counsel for the respondent on the use of the word 'through' occurring in Section 15 (2) (a) referring to a female having 'succeeded through her father or brother . ' It was urged that daughters under the will of Bagga Singh had succeeded 'to him' but not 'through him'. It was said, that the use of the word 'through' indicated that the succession was by way of inheritance but not under the will. It was further said that the use of the word 'through' indicated next heirs and the daughters in this case were not the next heirs of Bagga Singh, but the two widows who outlived him. It was urged that Section 15(2), therefore, did not apply whether the daughters had received the property under the will or by gift, as in either case, that was in the nature of a transfer. I am not impressed by this argument.

7. The Supreme Court while considering this section treated the word 'through' as meaning 'from' in Gulraj Singh v. Mota Singh, (1964) 66 Pun LR 746= (AIR 1965 SC 608), Ayyangar J. said:--

'Take, for instance, the case where a female succeeds to property through her father or brother dealt with in Section 16 (2)(a) of the Pre-emption Act. Her heir under the Hindu Succession Act would be, if the property was inherited from her father, her son or daughter (including the children of any predeceased son or daughter) and in their absence the heirs of the father. If, however, the property was inherited from her brother, the devolution is different (vide Section 15(1) and (2)).'

The word 'through' in this context means 'medium', 'agency', 'instrument', 'by means of, 'by the action of' 'by the instrumentality of, etc. It also means 'on account of', 'owing to', 'from' and 'by reason of'. I cannot read the word 'through' in any other sense. The section would not have applied if the will in this case in favour of Gurmit Kaur and her four sisters had been by Bagga Singh's father, in the event Bagga Singh had predeceased his father. In that case, the will being of the grandfather, the grand-daughters could not be said to have succeeded 'through' father.

8. After giving the matter anxious consideration, I am of the view that the finding of the lower Courts on the first issue was erroneous, and the provisions of Section 15(2) were not construed correctly. The appeal deserves to succeed and the plaintiff's suit merits dismissal. I allow the appeal and dismiss the suit In the circumstances, there will be no order as to costs. Appeal allowed.


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