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Mangtu Vs. Tikam Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 16 of 1966
Judge
Reported in5(1969)DLT314
ActsPunjab Preemption Act, 1913 - Sections 15(1)
AppellantMangtu
RespondentTikam Ram and ors.
Advocates: K.C. Pandit and; R.S. Paul, Advs
Cases ReferredMohammad Shafi v. Allah Din
Excerpt:
- - in toher words, the decision endorsed the general principle that the pre-emtoor must take over the sole bargain as a whole. the words 'a part thereof' clearly mean that a tenant holding tenancy in only a part of the land sold is entitled to pre-empt. (9) on a survey of the scheme of the act and particularly the scheme of section 15(1), it would appear that the principle embodied therein is the well-known principle that the pre-emptor must take the bargain of sale as a whole......description. for, the mere relationship with the vendor and the mere holding of a share in the land sold confers on them the right of pre-emption. but, clauses fourthly of clause (a) and clause (c) which refer to tenants give also the qualifications of the tenants. they do nto merely say that the right vests in the tenants of the land sold i.e. without qualification as is said by sub-clause fourthly of clause (b). the reason is that the description 'in the toher co-sharers' in sub-clause fourthly of clause (b) is sufficient without any further qualification to show that whatever the share of the co-sharer may be, he is entitled to pre-empt the whole of the sale for, the very meaning of 'co-sharer' is that he is an owner of only a part of the land. (7) if the sub-clauses fourthly of.....
Judgment:

V.S. Deshpande, J.

(1) This appeal involves a question of first impression regarding the extent of the right of pre- emption by tenants un.der the fourth clause of Section 15(l)(c) of the Punjab Pre-emption Act, 1913, as amended in 1960 (hereinafter called the Act).

(2) The land in suit consists of two-thirds share in khasra No. 662 min (I bigha 9 biswas) and 662 min (4 bighas 10 biswas) measuring 5 bighas and 19 biswas. It was sold by Shrimati Phoolan Devi and Shri- mati Janki Devi, respondents 2 and 3, to Teekarn Ram, respondent 1. The appellant Mangtoo was a tenant of a part of khasra No. 662 min (I bigha 9 biswas) to the

(3) Learned counsel on btoh sides confined their arguments to the construction of Section 15(1 )(c) fourthly which runs as follows :-

'15.Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property- (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-- (c) where the sale is of land or property owned Jointly or is made by all co-sharers jointly, 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 counsel for the appellant urged that on a proper construction of this provision, the appellant-tenant is entitled to pre-empt the whole of the land which is sold. He relied on the decision in Mohammad Shafi v. Allah Din, where it was observed that the right of pre-emption nto being a right of repurchase but one of being substitution of the pre-emptor in place of the vendee, it was nto competent for the Court to decree only a part of the claim. In toher words, the decision endorsed the general principle that the pre-emtoor must take over the sole bargain as a whole. Unfortunately, the decision does nto specifically say whether the right of pre-emption was under the Act though this may be presumed inasmuch as the said Act was inforce on and prior to the date of the decision Learned counsel for the respondents, on the toher hand, contends that the right of pre-emption is restricted to that portion of the land in which the tenant holds the rights of tenancy and relies upon a shortntoe of the decision in Kartar Singh and tohres v. Kirpal Singh

(5) As there are no judicial decisions brought to my ntoice to help the construction of the relevant provision, I shall try to construe it according to the plain meaning of its language. It seems to me 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'. The rest of the sub-section is divided into three clauses, each of which is divided into sub-clauses. The clauses refer to the nature of the sale and the manner in which and the persons by whom the sale was brought about. Since the sale in the present case was by all the co-sharers jointly made in favor of the vendee, clause (c) applies to the present case.

(6) It is to be ntoed that the various sub-clauses of all the above clauses described the persons who are entitled to pre-empt. It is further to be ntoed that the relatives of the vendor and his co-sharers are described simply without adding any qualifications to their description. For, the mere relationship with the vendor and the mere holding of a share in the land sold confers on them the right of pre-emption. But, clauses fourthly of clause (a) and clause (c) which refer to tenants give also the qualifications of the tenants. They do nto merely say that the right vests in the tenants of the land sold i.e. without qualification as is said by sub-clause fourthly of clause (b). The reason is that the description 'in the toher co-sharers' in sub-clause fourthly of clause (b) is sufficient without any further qualification to show that whatever the share of the co-sharer may be, he is entitled to pre-empt the whole of the sale For, the very meaning of 'co-sharer' is that he is an owner of only a part of the land.

(7) If the sub-clauses fourthly of clauses (a) and (e) would have stopped short of giving the qualifications of the tenants who are entitled to pre-empt, it would have been arguable that the tenants would have to be tenants of the whole of the land sold. For, unlike a co-sharer the word 'tenant' does nto indicate whether he is a tenant of the whole of the land sold or only a part of the land sold. This is why the legislature had to enact sub-clause fourthly of clause (c) in the following words, viz.,

'INthe tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.' The meaning is that the tenants who are entitled to pre-empt must firstly be the tenants of the vendors. If there are more than one vendors, they can be tanants of anyone of them. They must be tenants of the land sold. Lastly, they may be tenants even of a part of the land sold. This also showed that a tenant of a Part of the land sold can present the whole if the land sold. It is to be ntoed that sub-clause fourthly is concerned only in describing the tenants who are entitled to pre-empt. It is nto concerned in conferring a right of pre-emption on them. thereforee, the qualifications attaching to the tenants in sub-clause fourthly are concerned with defining which particular tenants are entitled to pre-empt. Subclause fourthly is nto concerned with defining in respect of which particular land the right of pre-emption arises. The opening sentence of Section 15(1) which relates to the conferring of the right of pre emption is bald and wide. It merely says that 'the right of pre-emption in respect of agricultural land and village immovable property shall vest'. It is important to ntoe that in this opening sentence, it is nto said that the right of pre-emption is in respect of agricultural land or a part thereof. It is only if the words 'part thereof' had occurred in this opening sentence that it could be argued that a right of pre-emption may arise either in respect of the whole of the land sold or in respect of a part of it. This is an important reason to show that the right of pre-emption arises in respect of the whole of the land sold. Further, the clauses (a), (b) and (c) all refer to the sale as a whole. They do nto state that a part of the sale is liable to be pre-empted. This is antoher reason to show that the sale as a whole must be pre-empted. Sub-clause fourthly of clause (c) is in harmony with the above-mentioned provisions of Section 15(1) and fits in with its scheme. Since it is concerned only in describing the qualifications of the tenants, the holding of a tenancy in the land sold or in a part thereof, is only a qualification of the tenant who is already given the right of pre-emption. The words 'a part thereof' clearly mean that a tenant holding tenancy in only a part of the land sold is entitled to pre-empt. The words 'part thereof' cannto be divorced from the context of sub-clause fourthly and cannto be read either in the opening sentence of Section 15(1) or in the opening sentence of clause (a) or (c) thereof, to support the argument that the right of a tenant who holds a tenancy in only a part of the land sold is restricted to that part or to a proportionate part of the land sold.

(8) The right of pre-emption in Section 15(1) is given in respect of the agricultural land and village immovable property. The definitions of 'agricultural land' and 'village immovable property' in Section 3 are General. They include the whole of land and the whole of the property and are nto capable of being split into parts. Similarly, Section 4 of the Act applies the right of pre-emption to the whole of the land and the property sold. Under Section 22, the plaintiff is called upon to deposit initially one fifth of 'the probable value of the land or property' sold. This also means that the value of the land or the property as a whole find nto any part thereof. Under Section 25, the Court shall determine the price of the land sold as a whole. There is no provision in the Act authorising 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 sold.

(9) On a survey of the scheme of the Act and particularly the scheme of Section 15(1), it would appear that the principle embodied therein is the well-known principle 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.

(10) The appeal is, thereforee,' allowed with costs. The decree of the lower appellate Court is set aside and the decree of the trial Court is restored.


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