Hardayal Hardy, J.
1. This is an appeal under Clause 10 of the Letters Patent against the judgment of V.S. Deshpande, J., in a second appeal from decree passed by the Senior Subordinate Judge, Kangra at Dharamsala modifying the decree passed by the trial Court in a suit for possession by pre-emption.
2. There is no dispute as to facts. Shrimati Phulan Devi and Janki Devi were the owners of land consisting of two fields bearing Khasra Nos. 662 Min. (Measuring 1Bigha 9 Biswas) and 662 Min. (Measuring 4 Bighas 10 Biswas), the whole measuring 5 bighas and 10 Biswas. By a sale deed dated 20-9-1963, theysold two-thirds of the land to one Teekam Ram for Rs. 1,000/-. Mangtu alleging to be a tenant of a part of the field bearing KhasraNo. 662 Min. (Measuring 1 Bigha 9 Biswas) to the exetent of 1 Bigha 7 bids was only, filed a suit for possession by pre-emption in respect of the entire land sold to Teekam Ram. The trial Court decreed the suit. On appeal by Teekam Ram, the learned Senior Subordindate Judge modified the decree by limiting the pre-emption to two-thirds share in the land measuring 1 Bigha 7 bids was ouot of Khasra No. 662- Min measuring 1 Bigha 9 bids was on payment of Rupees 260/- which represents the proportionate sale price.
3. Mangtu filed a second appeal claiming that he was entitled to pre-empt the whole of the land sold to Teekam Ram. His claim has been allowed by the learned Single Judge and the decision has led to the filing of the present appeal by Teekan Ram on a certificate granted by the learned Judge. The appeal thus involves a straight question regarding the extent of the right of pre-emption by tenants under clause fourthly of Section 15(1)(c) of the Punjab Pre-emption Act, 1913, as amended by Punjab Act 10 of 1960. Section 15 (1) reads:-
'The right of pre-emption in respect of agricultural land and village immovable property shall vest -
(a) where the sale is by a sole owner-
First, in the son or daughter or son's son or daughter's son of the vendor;
Secondly, in the brother or brother's son of the vendor;
Thirdly, in the father's brother or father's brother's son of the vendor;
Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof;
(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 son's sons or daughter's sons of the vendor or vendors;
Secondly, in the brother's 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 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) where the sale is of land or property owned jointly or is made by all co-sharers jointly;-
First, in the sons or daughters or son's sons or daughter's sons of the vendors;
Secondly, in the brothers or brother's sons of the vendors;
Thirdly, in the father's brothers or father's brother's sons of the venddors;
Fourthly, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.'
4. Learned single Judge has held that the right of pre-emption in Section 15(1) given in respect of the agricultural land and village immovable property as defined in clauses (1) and (2) of Section 3, is general. The right extends to the whole of the land and the whole of the property sold by the vendors and is not capable of being split into parts.
The learned Single Judge says:-
' On a survey of the scheme of the Act and particularly the scheme of Section 15(1), it would appear that the principle is that the pre-emptor must take the bargain of sale as a whole. Neither can he ask that the sale should be split nor can he be compelled to accept a pre emption of only a part of the land sold.'
5. The proposition of law enunciated by the learned Judge would in the fist blush appear to have, not only the support of the reasons given by his Lordship but also the backing of Tek Chand, J., of Lahore High Court. In Mohammad Shafi v. Allah Din Air 1934 Lah 429, the case referred to by the learned Single Judge, that eminent Judge sitting with Coldstream, J., said;-
'It has been held in a long series of cases, decided by the Punjab Chief Court and this Court during the last 50 years, that for purposes of pre-emption a sale transaction is regarded as indivisible in those cases, where the purchase money is paid in lump sum without any specification of the amount paid by the various vendees, and the mere vendees respectively are specified in the sale deed does not alter the nature of the transaction, it being at most an arrangement among the purchasers inter se, which does not affect the vendor; see inter alias Murad v. Mine Khan (1895) 94 Pun Re 1895, Kesar Singh v. Punjab Singh (1896) 66 Pun Re 1896, Acchru v. Labhu (1907) 48 Pun Re 1907, Khota Ram v. Mauj Din (1912) 16 I C 979, Majhi v. Narain Air 1914 Lah 128, yakub Khan v. Karman (1922) 66 I C 466 and Mt. Prabhi v. Hamira Air 1919 Lah 427.'
6. It was also said that the right of pre-emption is not a right of re-purchase either from the vendor or the vendee, but is one of substitution for the vendee in the original sale and the pre-emptor is not only entitled but bound to take over the bargain in its entirety.
7. Both these observations were, however, made in a case where sale was in favor of two vendees who were to take the property in equal shares but the sale was a single and indivisible transaction, and a suit for pre-emption in respect of it was dismissed. During the pendency of the appeal one of the vendees died but his legal representative was not brought on record within the prescribed time and the appeal abated as against him. The question before the Court was whether the plaintiff's suit must be dismissed as a whole, even though he had prayed in the payment of full price and imp leaded both the vendees in the appeal
8. Relying upon the earlier decisions of the Punjab Chief Court and Lahore High Court in Khan Mahomed Shah v. Mohamed Jan 104 Pun Re 1882, Ram Chand v. Rana 149 Pun Re 1889 and Hussain Bibi v. Hakim Air 1919 Lah 25, it was held that as
'the subject-matter of a pre-emption suit, when the property sold is one and subject to the same right of pre-emption, being one and indivisible, and it being necessary that the suit should either be decreed as a whole or dismissed as a whole, it wa snot competent to the Court to decree a part of the claim as against some of the purchasers and dismiss the rest of the claim as against the other purchasers.'
9. It may however, be noticed that the observations with regard to indivisibility of the sale transaction and the liability of the pre-emptor to take the whole transaction are with reference to a ` where the sale is to more than one vendee and the purchase money is paid in , sum without any specification of the amount paid by the various vendees or where the property sold is one and is subject to the same right of pre-emption. The case is, thereforee, really no authority for the wide proposition enunciated by the learned Single Judge that in every case of pre-emption the pre-emptor must take the bargain of sale as a whole, he can neither ask that the sale should be split nor can he be compelled to accept a pre-emption of only a part of the land sold.
10. There are numerous authorities on the other hand from early times which appear to us to be directly in point and in which a contrary view has been taken. Only a few of those authorities may be noticed. The case of Sardar Lall Singh v. Dewa Singh 107 Pun Re 1882 is a Full bench decision of the Punjab Chief Court. One of the questions referred to the Full Bench for decision was in these terms:-
'Whether, when, as in this case, the vendor, by one deed of sale has sold several separate properties, a plaintiff who may have a right of pre-emption in regard to one only of those properties, can sue to enforce it in regard to that one alone without suing to take over the whole bargain?'
11. The question arose under the Punjab Pre-emption Act Iv of 1872 the provisions of which, barring a few exceptions with which we are not concerned, are in pari materia with the provisions of Act 1 of 1913. While answering the question in the affirmative Plowden, J., who delivered the judgment of the Full Bench observed:-
'The principle that the pre-emptor is bound to take the whole of the bargain as settled by the vendor, is a principle which may be admitted to the extent that the pre-emptor cannot omit to claim any portion of the property comprised in the bargain to which his right of pre-emption extends, but it cannot consistently with the provisions of Act Iv of 1872, be held to oblige him to claim the whole of the property sold when his right of pre-emption extends over only a portion of such property.'
12. In fact the proposition that the right of pre-emption is generally limited to the extent of the pre-emptor's right is too well established to admit of a challenge. What follows from this doctrine is that a pre-emptor is not bound to claim the whole when his right of pre-emption extends only to a part. In Moti Ram v. Bakhwant Singh a Full Bench of the Punjab and Haryana High Court had occasion to deal with the sale of land under sub-clause secondly of clause (c) of sub-sec.(1) of Section 15 of the Act 1 of 1913 as amended by Act 10 of 1960. The sale was made by joint owners Ind Kaur and her two sons Balkar Singh and nachhatar Singh (.........) from Tarlok Singh) to Moti Ram (.....) Ram and was sought to be pre-emptor by Bakhwant Singh and Mohinder Singh minor sons of Tarlok Singh through their mother Karam Kaur, also a widow of Tarlok Singh, the pre-emptors claimed their rights both as co-sharers with the vendors in the Khatas of the land sold and as brothers of Balkar Singh and Nachhatar Singh. The trial Court found that the pre-emptors were not entitled to succeed on the first ground as it had not been established that they were co-sharers in the disputed land. On the second ground, however, the trial Court found in favor of the plaintiffs and it was held that though they were step brothers of Balkar Singh and Nachhatar Singh they were nevertheless entitled to rank in parity with them under the relevant provisions of the Punjab Pre-emption Act. In the result, a decree was granted in favor of the pre-emptors in respect of two-thirds of the land sold on payment of the proportionate price of Rupees 3,200/-, it having been held that they could not pre-empt the share of Ind Kaur, not being her sons. Eventually the matter came before the High Court where D. K. Mahajan, J., relying upon a judgment of Gurdev Singh, J., in Nathi Singh v. Lakmi Chand, R.S. A. No. 1616 of 1960, D/- 20-3-1962 (Punj) which was subsequently affirmed in Letters Patent appeal by Dulat and R.P. Khosla, JJ., in Jangli v. Lakhmi Chand 1965 Pun Lr 919 decreed the suit in toto even with regard to the share of Ind Kaur on payment of Rs. 5,000/-.
13. The view taken by the Letters Patent Bench in 1965 Pun Lr 919 is fully in accord with the view of the learned single Judge in the case before us. It was said in that case that 'the right which has been given to the sons under the Punjab Pre-emption Act is the right to pre-empt the 'sale' and not a part of the sale. Thus, each of the sons of all the vendors would be entiled to sue for the recovery of possession of the entire property sold on the basis of his pre-emptive right.'
14. Leave to appeal having been granted by Mahajan, J., the case came up before the Letters Patent Bench consisting of Falshaw, C. J. And H. R. Khanna, J., (as his Lordship then was). The Bench was doubtful about the correctness of the decision of Gurdev Singh, J., in Nathi Singh's case, R.S. A. No. 1616 of 1960 D/- 20-3-1962 (Punj) as also of the Letters Patent Bench which affirmed it and thought that the matter required re-consideration. The case was accordingly referred to a Full Bench. Two other questions were also considered by the Full Bench consisting of Shamsher bahadur, P.C. Pandit and P.D. Sharma, JJ., but with those we are not concerned in this appeal.
15. In the course of his judgment Shamsher Bahadur, J., who wrote the leading judgment in the case (P.C. Pandit and P.D. Sharma, JJ., concurring) referred to several earlier decisions of the Punjab Chief Court and Lahore High Court including the case of Ram Rakha Mal v. Devi Das 89 Pun Re 190 decided by Chhatterji and Johnstone, JJ., in which it was held, that
'Where a bargain consisted of several distinct properties and the pre-emptor's right of purchase extended only to a portion of such bargain, the pre-emptor was not entiled to take the whole bargain but only that portion over which he had superior right.'
16. The doctrine of indivisibility of the sale transaction which appears to have commended itself to the learned Single Judge and on which so much stress has been laid by the learned Counsel for the respondent Mangtu before us, is also opposed to another decision of the Punjab Chief Court in Dulla v. Hari Kishan Dass 6 Pun Re 1915 : AIR 1914 Lah 494 which is a judgment of Johnstone and Shadi Lal, JJ., in which it was said:
'Where a sale, `spect of which a suit of pre-emption has been brought is by two vendors and indivisible from certain points of view inasmuch as it does not state the amount of purchase money paid to each vendor, the vendee is notwithstanding entitled to retain that part of the property sold in respect of which his rights are equal to that of pre-emptor.'
As was observed by Shamsher Bahadur, J., the ratio decidendi of 6 Pun Re 1915 : AIR 1914 Lah 494 has not been dissented from at any time. The conclusion reached in 6 Pun Re 1915 : AIR 1914 Lah 494 would not have been possible if the bargain of sale were to be treated as indivisible and thus inviolate from that point of view.
17. The principle has also been recognized by the Lahore High Court in Ghulam Qadir v. Ditta 47 Pun Lr 224 : AIR 1945 Lah 184 where a Full bench of that Court consisting of Sir Trevor Harries, C.J., and Abdul Rashid and Abdur Rehman, JJ., said that a pre-emptor must always claim the maximum to which he is entitled or has a superior right and his failure to do so would result in a dismissal of his claim on the ground that he was suing for partial pre-emption.
18. After referring to the above cases and a few others, Shamsher Bahadur, J., finally summed up the position and said that 'it seems to us that the decision in jangli's case 1965 Pun Lr 919 being in conflict with settled principles is not correctly decided.'
19. In his judgment the learned Single Judge has referred to the decision in kartar Singh v. Kirpal Singh 1965 Pun Lr 64 as one of the cases on which reliance was placed on behalf of the vendee. It seems the full text of the judgment was not placed before the learned Judge and only a small extract from the judgment as reported in 1965 Pun Lr 64 was brought to his Lordship's notice. The decision, thereforee does not appear to have received any particular attention. We have now had the advantage of seeing the full Judgment of the Bench consisting of Falshaw, C.J., and Harbans Singh, J. The judgment was pronounced by the Bench on the same day i.e., 21st May , 1965 on which the decision of Dulat and R.P. Khosla, JJ., of that Court in Jangli's case 1965 Pun Lr 919 was delivered. It is, thereforee, clear that the learned Judges who were in one Division Bench were not aware of what the other Bench had decided. The view taken by the Bench deciding Kartar Singh's case 1965 Pun Lr 64 is just the opposite of what was held in Jangli's 1965-67 Pun Lr 919. As the decision has remained unreported, it is not noticed even by the Full Bench in . The case is directly in point as it deals with the construction of clause fourthly of Section 15(1) (a) of the Punjab Pre-emption Act which is in terms identical with Section 15(1)(c) which have to interpret in this appeal except that the sale under Section 15(1) (a) is by a sole owner while that under Section 15(1) (c) is by all the co-sharers jointly. In principle, however, there can be no difference between the two transactions. Harbans Lal, the original owner of the land, had sold in that case an area of 48 Kanals and 19 Marlas to Kartar Singh, Ram Rakha and Satnam singh, defendant-appellants. The sale was sought to be pre-empted by Kirpal Singh, plaintiff-respondent, who claimed to be the tenant of an area of 38 Kanals and 10 Marlas out of the land which was the subject-matter of the sale. The Courts below decreed the suit for possession of the whole of the land forming the subject-matter of the sale. In second appeal which was referred to a Division Bench the decree in favor of the plaintiff-respondent was modified and he was granted a decree for possession of only 38 Kanals and 10 Marlas over which he held tenancy rights and not the entire suit-land, on payment of proportionate amount.
20. As our own view of section 15 in so far as it is relevant for the decision of this appeal coincides with what was said in that case, we feel no apology is needed if we quote from the above judgment in extenso. It was there said:-
'Section 15 only enumerates the persons in whom the right of pre-emption vests and does not deal with the question of the extent to which each of such persons shall have a right. Under clause (b) of sub-section (1) of this section, where the sale is of a share out of joint land and is not made by all the co-sharers jointly the right vests 'in the other co-sharers'. There can be a case where the vendor owns property in two or three Khatas and he has different co-sharers in these Khatas. If 'A' is a co-sharer in the first Khata, 'B' is a co-sharer in the second Khata and 'C' is a co-sharer in the third Khata, then obviously 'A' being only a co-sharer in the first Khata can pre-empt the sale to the extent of that Khata and no more. Being a co-sharer in a part of the property sold he is qualified to pre-empt and can, thereforee, bering a suit for pre-emption of sale, but he can pre-empt only to the extent of the Khata in which he is a co-sharer. It is well established that where there is a bargain of distinct properties, by a person having preferential rights only to a portion of such bargain, that does not give him a right of pre-emption as regards the other portions simultaneously sold. See inter alias in this connection 87 Pun Re 1895, 16 Pun Re 1905 112 Pun Re 1907. Similarly, if in a sale a vendor includes properties in different villages, it will be fantastic to hold that simply because a tenant holds under tenancy of the vendor of some property situated in one village, which forms part of the sale, he would be either entitled to or is bound to pre-empt the whole sale. If the law is interpreted in the manner in which the Courts below have done, the reslt would be that the very object of the legislature to benefit the tenants and to give them security of tenure of the land held by them may be frustrated. A tenant may be holding tenancy, say over 20 kanals of land, and the vendor sells 100 acres of land, including the 20 Kanals so held by the tenant; according to this view of the law the tenant would be bound to pre-empt the entire sale, because otherwise he will be non-suited on account of partial pre-emption. Obviously a tenant holding tenancy over such a small area would be incapable of finding finances to pre-empt the whole sale. Thus if the provision is interpreted in that manner, it may not necessarily, in all cases, work for the benefit of the tenant. Furthermore there may be 100 tenants over this area of 100 acres sold by the vendor. If even one of the tenants is entitled to pre-empt only the land held by him, the matter will be quite simple. But to hold that everyone of these tenants must necessarily pre-empt the whole sale is likely to lead to fantastic results.'
21. Finally the learned Judge, Harbans Singh, J., who wrote the judgment of the Bench, ended up by saying:-
'Taking into consideration the object that was apparently in view of the legislature, viz., to afford security of tenancy to the tenants, and in view of the fact that it is well recognised that a person as of right can exercise his right of pre-emption only over that part of the property qua which he has a superior right of pre-emption, I have no hesitation in holding that the only proper interpretation of the clause in question is that although a tenant becomes qualified to bring a suit for pre-emption as soon as he can establish that he holds rights of tenancy over any portion of the land which forms part of the sale, his right to pre-empt extends only to the extent of the property over which he has the tenancy rights.'
22. The same view of law has been uniformly held in Allahabad High Court. In Makund Sarup v. Sarvi Begum (1909) 2 I C 65, three villages were sold together by one sale. On a suit for pre-emption having been instituted by the plaintiffs, it was found that one of the plaintiffs had pre-emptive right in repect of only one of the villages and not in respect of the other two. The case was remanded to determine as to what part of the purchase price was attributable to the village in respect of which the plaintiffs had a superior right of pre-emption. Such an order could not have been made if the plaintiffs were bound to pre-empt the entire sale. Abhainandan Prasad v. Bhagwan Datt Pathak : AIR1925All765 is another case from Allahabad where Sulaiman, J., held:-
'If two properties are sold under a sale-deed, one of which is capable of pre-emption and the other is not, and a property capable of pre-emption is pre-empted, the vendee cannot lose his rights in the property which was not capable of pre-emption. That property must be deemed to remain vested in the vendee. It is immaterial whether the plaintiff did pay the whole or only a part of the total sale consideration. It would have been open to the plaintiff to ask the Court to apportion the consideration and reduce the amount in view of the fact that part of the property sold was not being pre-empted; but if for some reason or other a pre-emptor omitted to do so, and submitted to a decree for pre-emption of a part of the property on payment of the whole amount, that could not destroy the rights of the vendee in the property which had not and could not have been pre-empted.'
23. Mt. Zainab Bibi v. Umar Hayat Khan : AIR1936All732 is yet another case from Allahabad where a Division Bench of that High Court took the same view. The Judgment contains a reference to some of the earliest cases decided by that Court (see Oomur Khan v. Moorad Khan 1865 Nwp Rep 173, Salig Ram v. Debi Prasad 1875 Nwphcr 38 and Durga Prasad v. Munshi (1884) 6 All 423. The observations in (1884) 6 All 423 are important and we, thereforee, take the liberty of quoting them in extenso. Mahmood, J., with whom Brodhurst, J., concurred, said:-
'Every suit for pre-emption must include the whole of the property, subject to the plaintiffs pre-emption conveyed by the one bargain of sale to one stranger; and a suit by a plaintiff pre-emptor, which does not include within its scope the whole of such pre-emptional property, is unmaintainable as being inconsistent with the nature and essenece of the pre-emptive right,'
and went on to add that there was a clear exception in the case where-
'Under one and the same deed of sale, property subject to pre-emption is sold along with other property not subject to the right, the plaintiff pre-emptor cannot, ex necessitate rei sue for the whole property conveyed by the sale but only, for so much as is subject to his pre-emptive right.'
24. This rule was further reiterated in Mohindra Man Singh v. Maharaj Singh Air 1923 All 48 where it was held that:-
'It is the duty of the pre- emptor to claim pre- emption in respect of the whole of that part of the property sold to which he has a right, failing which his whole claim must fail. If the vendee has included properties in which the plaintiff has no right to to pre-empt, the pre-emptor is entitled to exclude them but he must neverthless claim pre-emption in respect of the whole of that part with regard to which he has the right.'
25. All these cases were no doubt based on the customary law prevalent in the United Provinces which obviously owed its orgin to the rules of Mohamedan Law; but the position remained unaltered even after the Agra Pre-emption Act of 1922 which, to a great extent, consolidated the old law, though in some respects it also amended the same. The case of Mt. Zainab Bibi, : AIR1936All732 to which we have already referred was a case under the Act of 1922.
26. There is no material difference between the Agra Pre-emption Act of 1922 and the Punjab Pre-emption Act, 1913, in so far as their provisions relate to the nature and extent of the right of pre-emption. The decisions under the former Act can, thereforee, be read as useful guides for the purpose ofinterpreting the provisions of the latter Act and have been so read in several decided case.
27. Mr. Thakur, learned counsel for the respondent laid great emphasis on the doctrine of pre-emptive right being a mere right of substitution and not a right of re-purchase and referred us to two Full Bench decisions, one of Lahore High Court in Mt. Sant Kaur v. Teja Singh Air 1946 Lah 142 and the other of the East Punjab High Court in Wazir Ali Khan v. Zabir Ahmed Khan Air 1949 E Pun 193 . Both these cases deal with the effect of vendee transferring the property sought to be pre-empted to a person having a superior right of pre-emption. Neither of them has, thereforee, any direct bearing on the question before us. There is no denying the fact that the right of pre-emption is a right of substitution. The question, however, is whether the pre-emptor's right of substitution extends to the whole of the bargain as settled by the vendor when his qualification to exercise that right extends only to a portion of such property. On that point the cases cited by the learned counsel can throw nolight and thereforee no help can be-derived by him from them. Apart from authority, even on the construction of Section 15 the learned single Judge does not appear to us to be right. The learned Judge is no doubt right when he says that the right of pre-emption is conferred by the opening words of Section 15 (1) viz., 'the right of pre-emption in respect of agricultural land and village immovable property shall vest.' He is also right when he says that the rest of the sub-section is divided into three clauses, each of which is divide into sub-clauses. The clauses refer to the nature of the sale and the manner in which and the persons by whom the sale may have been brought about while the sub-clauses describe the persons who are entitled to pre-empt. Where he appears to us to have gone wrong, and we sy so, with great respect, is when he says that since the other sub-clauses do not prescribe the qualifications of the persons who are entitled to pre-empt, and sub-clause fourthly of Clause (a) and Clause (c) which refers to tenants, also gives the qualifications of the tenants, a different meaning has to be given to that sub-clause and it has to be held that even a tenant of a part of the property is entitled to pre-empt the entire sale.
28. It is one thing to say that a tenant who is entitled to pre-empt under sub-clause fourthly of Clause (a) of Section 15(1) may be a tenant of the vendor with respect to the whole of the land or property sold or with respect to only a part thereof but to say that thereby even a tenant of a part of the land or property sold shall be entitled to pre-empt the bargain relating to the sale of the entire land or property by the vendor is an entirely different thing. The same applies to sub-clause fourthly of Clause (c). While the tenant of even one of the joint vendors who is a tenant of a part of the land or property sold, is entitled to pre-empt, his right to pre-empt cannot extend to the sale of the entire land or property by the vendors, but will be confined to the part to which his tenancy extends. The right of pre-emption on the ground of relationship cannot be equated with the right of pre-emption on the gound of holding a share in the property or holding tenancy rights over a part of it. In one case the relationship embraces the entire property of the vendor for it is personal to the owner of the property, while in the other case what clothes the co-sharer or the tenant with a preferential right is only qua a certain portion of the property. With regard to the claim for pre-emption based on relationship, however, no definite opinion need be expressed in this case as the question is not before us. It seems to us that in the case of co-sharers and tenants what really matters is the extent of the interest which the tenant or a co-sharer has in the land or property sold that he seeks to pre-empt. If he is a tenant under all the co-sharer in respect of the property sold and the sale is by all of them jointly his right to pre-empt will extend to the whole of the subject matter of sale. On the other hand, if he is a tenant of only one of the co-sharers or is a tenant in respect of a part of the property sold, though the sale is by all the co-sharers jointly, his right to pre-empt will be limited only to the part to which his tenancy extends. He cannot pre-empt the entire sale.
29. In fact the learned Judge himself concedes at one place that sub-clause fourthly is not concerned with defining in respect of which particular land or property the right of pre-emption arises. It only lays down the qualifications of the tenants who can exercise such right. For the extent and dimensions of that right thereforee we must look to the general principle of law and that principle is that the right is confined only to the part of the propertyto which the tenancy of the person who seeks to exercise that right extends, nothing more and nothing less. We also do not find anything in the scheme of the Act which should enable us to take a view different from the one we are inclined to take.
30. We may here notice two arguments, one advanced by the counsel for the respondent and the other by the counsel for the appellant before we pass on to the other arugment which appears to have weighed with the learned single Judge in arriving at the conclusion at which he did.
31. It was urged by the learned counsel for the respondent that the right of pre-emption had been uniformly regarded as piratical and as an inhibition on the right of the person holding and disposing of his property. There was, thereforee, nothing inequitable and unjust if the legislature deliberately rendered the exercise of that right by the tenant difficult by making it compulsory for him to find the money required for pre-empting the entire transaction. We cannot impute that intention to the legislature which for the first time in 1960 conferred on the tenants the right to pre-empt by amending Section 15 of the Punjab Pre-emption Act, 1913 by Punjab Act 10 of 1960. As was said by Harbans Singh, J., in Kartar Singh's case:
'The general agrarian policy followed by the welfare Sate is to provide security to the tiller of the soil. By enactment of the Security of Land Tenures Act, 1953 (Punjab Act 10 of 1953), the circumstances under which a tenant can be ejected by the landlord have considerably been reduced. There is also provision made whereby an old tenant can, under certain circumstances, purchase the land under his continuous tenancy even against the wishes of the landlord. The new provision in the Pre-emption Act giving a right of pre-emption to a tenant, i.e. to pre-empt a sale, obviously is a step in the direction of providing him security.'
32. Learned counsel for the appellant contended, on the other hand, that the primary object behind the law of pre-emption with regard to sale of agricultural land and village immovable property is to maintain the homogeneity of village communities and to prevent the induction of strangers. Take a case where the co-sharers have land in various villages X, Y and Z which are under the tenancy of different tenants. A is a tenant of the joint vendors in village X. The Co-sharers jointly sell the property in village Y to C. If A who is a tenant in village X can pre-empt the entire sale it will have the effect of introducing a stranger in village Y and thus disturb the homogeneity of the village community in that village. The argument may sound strange in the context of present day conditions but is not entirely lacking in substance.
33. Learned Judge has next referred to the provisions of Sections 22 and 25 of the Act in support of his argument regarding indivisibility of the bargain. Under Section 22, the plaintiff is called upon to deposit initially one-fifth of the probable valueof the land or property sold which according to the learned Judge means the value as a whole and not of a part of the land or property. Likewise, he says that under section 25, the Court has to determine the price of the land sold as a whole. According to him, there is no provision in the Act authorizing the Court to split the right of pre-emption and to determine the value of only a part of the land sold by granting only partial pre-emption with respect to a part of the land.
34. The argument does not appear to us to be well founded. What Section 22 lays down is not that the Court should require the plaintiff to deposit one-fifith of the value of the land or property sold as entered in the deed. It is the probable value of the land or property. The actual amount which the plaintiff is bound to pay at the conclusion of the suit is the market value of the land or property and that has to be determined in the manner laid down in Section 27. If only a portion of the entire area sold is pre-emptible, then it is apparent that the Court will calculate the probable value of that portion and require the plaintiff to deposit a sum not exceeding one-fifth of that value. There is no reason to suppose that what the Court can do in the end cannot be done by it in the beginning when the question is only of determining the probable and not the actual value of the land or property sold. Section 25 which gives power to the Court to determine the market price of the land or property if the parties are not agreed as to the price at which the pre-emptor shall exercise his right of pre-emption nowhere lays down that the price of the whole of the land or property has to be fixed. In Talib Hussain v. Uttam Chnd Air 1929 Lah 140 it was held by Jai Lal, J., that-
'If a portion of the entire area sold is pre-emptible, then it is the real market vallue of that portion that is to be determined, and it is not fair to work out the value of the portion according to the total price paid for the whole area.'
35. The object of section22 is not to determine the real value of the property at the very commencement of the action. It is only to test the bona fides of the pre-emptor and to prevent frivolous and vexations proceedings, for the Court may require the plaintiff to give security only for the payment of the amount instead of asking him to deposit cahs.
36. The ultimate power of the Court to split the sale and determine the price which the pre-empto has to pay for the portion of the property which alone is pre-emptible has never been in doubt. Reference may be made in this connection to a Division Bench judgment of the Punjab High Court (Falshaw C. J. And H. R. Khanna J.) in Basawa Singh v. Santa Singh (1966) 68 Pun Lr 128. The judgment isby H. R. Khanna J., (as his Lordship then was). His Lordship said that 'where a vendee has included in the sale deed some property in respect of which the plaintiff pre-emptor has no right of pre-emption and some other in respect of which he has such a right and the Court passes a decree regarding property about which the plaintiff has a right of pre-emption, it would not be in consonance with principles of justice and equity to burden the plaintiff with payment of the full sale price including the price for the portion of the property in respect of which his suit is being dismissed.'
37. For the reasons given above, we are of the view that the plaintiff-respondent is entitled to a decree for possession by pre-emption of two-thirds share in the land measuring 1 Biga 7 bids was (i.e. 18 biswas) out of land measuring 1 Bigha 9 bids was comprised in Khasra No. 662-Min (which is under the tenancy of the plaintiff), on payment of the amount which represents the market value of that portion of the land and that the appellant is entitled to retain the rest of the property sold to him by the vendors. The learned Senior Subordinate Judge has fixed the value of that portion at Rs. 260. He has also so by dividing the total value of the land sold between the portion which the appellant has been allowed to retain and the portion for which a decree has been passed in favor of the respondent. This is not correct. We, thereforee, remand the case under Order 41, Rule 25 of the Code of Civil Procedure to the trial Court with a direction to find out the market value of 18 bids was of land out of land measuring 1 Bigha 9 bids was comprised in Khasra No. 662-Min (which is under the tenancy of the plaintiff-respondent). The trial Court's report should be submitted within three months from today. The parties are directed to appear in the trial Court on 16-7-70.
38. Case remanded.