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Birjee Vs. Pirthi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 725 of 1970
Judge
Reported inAIR1973P& H289
ActsPunjab Pre-emption Act, 1913 - Sections 15(2)
AppellantBirjee
RespondentPirthi and ors.
Cases ReferredIn Mohinder Singh v. Balbir Kaur
Excerpt:
.....to which their mother would have been entitled had she been alive when the succession opens. rajinder sigh, 1966-68 pun lr 589, it was held that the word 'succeed' as used in section 15(2) of the punjab pre-emption act indicates that the property is such as a female gets on the death of relatives mentioned therein and the word clearly conveys the ides of succession and not of transfers inter vivos including gifts......or property and is not made by all the co-sharers jointly:-- first in the sons or daughters or sons' sons or daughters' sons of the vendor or vendors. secondly in the brothers or brothers' sons of the vendor or vendors. thirdly, in the father's brothers or father's brother's sons of the vendor or vendors: fourthly, in the co-sharers: fifthly. * * * * section 15(2) of the punjab pre-emption act, however, provides:-- 'notwithstanding anything contained in sub-section (1):-- (a) where the sale is by a female of the land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest:-- (i) if the sale is by such female, in her brother or.....
Judgment:

Gurdev Singh, J.

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

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

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

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

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

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

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

Secondly in the brothers or brothers' sons of the vendor or vendors.

Thirdly, in the father's brothers or father's brother's sons of the vendor or vendors:

Fourthly, in the co-sharers:

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

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

(a) where the sale is by a female of the land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest:--

(I) if the sale is by such female, in her brother or brother's son;

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

(b) where the sale is by a female of the land or property to which she has succeeded through her husband or through her son in case the son has inherited the land or property sold, from his father, the right of pre-emption shall vest:--

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

(ii) Secondly, in the husband's brother or the husband's brother's son of such female.'

5. It is clear that under this sub section a co-sharer as such has not been given any right to pre-empt. Accordingly, when the sale sought to be pre-empted is by a female and is of the type of the property described therein, the provisions of sub-section (1) of Section. 15 will be of no avail to a co-sharer in view of the opening words of sub-section (2) of Section 15. 'Notwithstanding anything contained in sub-section (1)'. The learned single Judge has held that since the property sold had come into the hands of the vendors by inheritance from the father of their mother, clause (a) of sub-section (2) of Section 15 of the Act governed the case of the appellant Smt. Birjee as a co-sharer was not entitled to pre-empt. The appellant's learned counsel urges that clause (a) of sub-section (2) of Section 15 of the Act cannot apply as the property in dispute had been inherited by vendors directly from their maternal grandfather without their mother Smt. Mahakauri having ever succeeded to it. According to the clear language of Section 15(2)(a) of the Act, it cannot be disputed that the provisions of this clause apply not only to a sale by a female of the property that she has inherited from her father but also to the sale of such property that she has inherited from her father but also to the sale of such property by her sons and daughters after inheriting the same. The controversy thus narrows down to the question whether sales by the sons or daughters of a female who inherit the property of their mother's father, their mother having predeceased, are covered by clause (a) of sub-section (2) of Section 15 of the Act. The wording of Section 15(2) of the Act indicates that the Legislature while amending the provisions pertaining to the right of pre-emption in respect of agricultural lands and village immovable property but sales of properties inherited by a female from her father and her husband in a separate category and has confined the right of pre-emption to persons specified therein. In case of the property which has come into the hands of a female or her children by inheritance from her father, the right of pre-emption is to vest only in the brother or brother's son of such female. Section 15(2)(a)(II) further makes it clear that if a sale of such property from her father, the right to pre-empt vests in the mother's brother or the mother's brother's sons which means the brother or brother's sons of the female from whose father they got the property by inheritance. This furnishes an effective key to the intention of Legislature where the property inherited by female from her father is sold by herself the right to pre-empt vests in her brother or brother's son and if the sale is by the sons or daughters of such female after they inherit their maternal father's property, the right to pre-empt vests in their mother's brother or the mother's brother's sons. In these circumstances the fact that the mother of the vendor had predeceased her father would make no difference and the sale would stand on the same footing as a sale made by the sons and daughters of a female who had actually inherited the property on the death of her father.

6. It is by rule of representation, which is well recognised both in Hindu Law and Customary Law, that the sons and daughters of a predeceased daughter succeed to the estate to their maternal grand father and take the share to which their mother would have been entitled had she been alive when the succession opens. We, thus, find that the interpretation placed by the learned Single Judge on the relevant provisions of Section 13 of the Act is correct and even if the appellants' claim that she was a co-sharer of the vendors is conceded, she has no right to pre-empt the sale in dispute.

7. A number of authorities have been cited before us in the course of arguments but one of them has direct bearing on the question that has arisen before us.

8. In Devi Singh v. Nandu 1962 Cur LJ 97, it was held that sub-section (2) of Section 15 is an exception to the general rule laid down in sub-section (1) and therefore, the sales made by the female owner which are not covered by sub-section (2) are pre-emptible under sub-section (1).

9. In Gurbachan Singh v. Smt. Bhagwati 1966 Cur LJ 10, I had observed that sub-section (1) of Section 15 of the Act was applicable to sales made by a male or female. On adverting to the facts of that case, it will be seen that these observations were made with reference to such sale by a female as was held not covered by sub-section (2) of Section 15 of the Act. This rule in accord with Devi Singh's case, 1962 Cur LJ 97 (supra).

10. In Jai Singh v. Mughla, 1967-69 Pun LR 475, a Division Bench of this Court ruled that as sub-section (2) of Section 15 of the Punjab Pre-emption Act starts with a non-obstinate clause, the provisions of sub-section (1) of Section 15 have to be read subject to sub-section (2) and if sale fails within both sub-sections, it is sub-section (2) which would apply to it irrespective of the fact that it could also be covered by sub-section (1).

11. In Kahla Singh v. Rajinder Sigh, 1966-68 Pun LR 589, it was held that the word 'succeed' as used in Section 15(2) of the Punjab Pre-emption Act indicates that the property is such as a female gets on the death of relatives mentioned therein and the word clearly conveys the ides of succession and not of transfers inter vivos including gifts.

12. In Mohinder Singh v. Balbir Kaur, 70 Pun LR 752=(AIR 1968 Punj 545) it was held that the word 'through' in S. 15(2) of the Punjab Pre-emption Act means 'medium', 'agency', 'instrument', by means of ' by action of', by the instrumentality of' etc. and it also means 'on account of' and that the word cannot be read in any other sense. It also reiterates the dictum of this Court that 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) that where sub-section (2) applies the provisions of sub-section (1) do not operate. Tek Chand J. further held that where a property is acquired under a will by the daughters from their father, sale by one of the daughter's was not pre-emptible by another and the sale was not covered by sub-section (2) of Section 15 of the Act.

13. All these authorities are consistent with the view we have taken. In brief we have held that the provisions of sub-section (2) of Section 15 override the provisions of Sub-section(1) of Section 15 of the Act, and if a sale fails within both the sub-sections. sub-sec (2) must prevail notwithstanding anything contained in sub-section (1). Sub-section (2) of Section 15 will apply if the property sold is inherited by the female through her father or her husband. The clear position that emerges is that sub-section (2) of Section 15 is applicable to the property inherited by a female from her father and is available for pre-emption to her brothers and brothers' sons while the sale of the property inherited by a female from her husband or son is open to pre-emption, firstly by her husband's son or daughter and, secondly, by her husband's brother or husband's brother's sons.

14. For all these reasons, we find no merit in this appeal. We accordingly affirm the findings of the learned Single Judge and dismiss the appeal with costs.

Gopal Singh, J.

15. I agree.

16. Appeal dismissed.


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