1. Judgment and decree dated l6th January 1996 of the Senior Subordinate Judge, Narnaul, affirming the decision of the trial Court in first appeal, have been assailed in this second appeal by the plaintiff-appellant Ram Kishan.
2. The facts giving rise to this 1itigation are that Pirbhu and Kkushala, defendants Nos. 3 and 4, sold the land in dispute to Shiv Narain and Man Bhar, defendants Nos. 1 and 2, for Rs. 6725/- on December 4, 1970. Ram Kishan appellant is son of the vendor Khushala. Babu Lal plaintiff-respondent is son of the other vendor Pirbhu. They brought a suit to preempt the sale as sons of vendors. The learned trial Court held that the plaintiffs and vendors constituted a joint Hindu family and the land in dispute is their coparcenary property. On these findings it was found that the plaintiffs are debarred by Section 10 of the Punjab Pre-emption Act to preempt the sale of the land in dispute. Consequent upon these findings the plaintiff's suit was dismissed. The lower appellate Court concurred with these findings and dismissed the first appeal filed by Ram Kishan. The other plaintiffs Babu Lal not appeal against the decision of the trial Court and he was cited as respondent No. 5 in the appeal.
3. The finding of fact concurrently arrived at by the two Courts below regarding the ancestral nature of the land in dispute qua the plaintiffs and the vendors has not been challenged. As a matter of fact this is a pure finding of fact which could not be assailed in second appeal. The contention of the learned appellant's counsel is that the vendors and the pre-emptor are governed by custom, therefore, the Courts below have come to a wrong conclusion that the land in dispute is a coparcenary property. It is said that under custom there is no bar against a son preempting the sale effected by his father even if the sold land is ancestral in nature. This contention deserves to be repelled on the simple ground that the plaintiffs never pleaded that they are governed by agricultural custom. It is well settled that a Hindu is normally governed by Hindu Law unless he alleges and proves that he is governed by Customary Law. Since the appellant did not allege in the pleadings that the vendors and the pre-emption are governed by custom, he cannot be allowed to put forth this plea at this stage of litigation.
4. Section 10 of the Punjab Pre-emption Act lays down that in the case of s sale by joint owners it is not permissible to a party to such sale to claim the right of pre-emption. While considering the applicability of this section, it was held in Matu Ram v. Imtiaz Ali, AIR 1952 Punjab 195, that if property is joint family property of a joint Hindu family, every coparcener is a joint owner of the same and when a Karta or a manager sells the property he sells not only his own share but also the interest of every member of the family. In such a situation, by a sale effected by a Karta or manager the interest of every member of the family is sold away, and if right, title and interest of every member are sold, such a member will be a party to the sale, and, therefore, under Section 10 of the Punjab Pre-emption Act is not competent to sue for pre-emption. In the present case the land in dispute being ancestral property qua the vendors and the pre-emptor it has to be fled as coparcenary property under Hindu Law and it is, therefore, manifest that the plaintiffs, being members of a joint family and the sa1e having been effected by their fathers, are debarred under Section 10 of the Punjab Pre-emption Act to sue for pre-emption. It was held by the Lahore High Court in Sukha Ram v. Kotu Ram, (1922) 67 Ind Cas 76, that the sons in a joint Hindu family cannot maintain a suit to pre-empt a sale of joint family property made by the father as managing member of the family. Similar view was reiterated by a Division Bench of this Court in Khuda Baksh v. Lahori Mal, AIR 1935 Lah 560.
5. As a last resort the learned appel1ant's counsel argued that even if Ram Kishan may be considered debarred from pre-empting the sate effected by his father Khushala and similarly Babu Lal may not be competent to pre-empt the sale made by his father Pirbhu, but each one of them is titled to pre-empt the sale effected by the father of the other plaintiff. In other words, according to the counsel Ram Kishan can pre-empt the sale regarding share of Pirbhu and in similar fashion Babu Lal can pre-empt the sale regarding share of Khushala. Apparently this contention has no merit. This argument could prevail only if the vendors had specified shares in the laud in dispute and then if could be argued that Ram Kishan is titled to pre-empt the share of Pirbhu whereas Babu Lal can pre-empt the share of Khushala in the capacity of nephews, the vendors being brothers however, as clarified under paragraph 216 of principles of Hindu Law by Mulla, the essence of coparcenary under the Mitakshara Law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners and no individual member of that family, while it remains undivided, can predicate his definite share in the undivided property. In other words the vendors Pirbhu and Khuahala were joint owners of the land in dispute having ownership rights over each inch of land and it cannot be said that they had specific shares in this land.
6. A reference was made by the learned counsel to Paragraph 223 of the above-said Mulla's principles of Hindu Law which provides that the property inherited by a male Hindu from his father, father's father, or father's father, is ancestral property only as regards his male issue. In the instant case the vendors Pirbhu and Khushala had inherited the land in dispute from their father Mohan and so this property became ancestral of ram Kishan qua his father Khushala and Babu Lal qua his father Pirbhu. But the vendors having inherited the land from their father surely held it as joint Hindu family property which is, classified as coparcenary property in Paragraphs 220 of the principles of Hindu Law. Plainly, therefore, the vendors became joint owners of this land and not owners of share each. The ownership of this coparcenary property vested in the whole body of coparceners and none of them has a definite share in it.
7. The learned counsel also wanted to draw support from Sections 6 and 30 of the Hindu Succession Act. Section 6 relates to devolution of interest in coparcenary property after the enactment of the Hindu Succession Act. It provides that when a male Hindu dies after the commencement of the Act his interest in the property shall devolve by survivorship upon the surviving members the coparceners and his interest shall be deemed to be the share in the property that would have been allotted to if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. The provisions of this section have no application to the present case because Mohan, father of the vendors, died much before the commencement of the Hindu Succession Act. Even if he had died after the Act came into force it would have made no difference in the nature of land in dispute in the hands of the vendors. S. 30 of the said Act lays down that any Hindu may dispose by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the India Succession Act or any other law for the time being in force and applicable to Hindus. This provision of 1aw apparently is of no help to the appellant's case.
8. For aforesaid reasons I find no merit in this appeal and dismiss the same with costs.
9. Appeal dismissed.