1. This is an appeal by Gulab Chand and others, defendants in a pre-emption suit, against the decree of the Additional District and Sessions Judge No. 2, Jodhpur by which that court allowed the appeal of the plaintiffs Gambheermal and others and decreed the suit.
2. The facts of the case are these. Gulab-Chand appellant is the maternal uncle of Ghisu Lal respondent and the other four appellants are sons of Gulab Chand. In June 1945, Ghisu. Lal executed a contract of sale of a house and a shop belonging to him in favour of Gulab Chand and his sons and received some earnest money. When Ghisu Lal failed to execute the sale-deed within the time agreed upon, Gulab Chand and his sons filed a suit for specific performance of the contract. That suit was compromised and a deed of gift was executed by Ghisu Lal in favour of Gulab Chand and his sons. Thereafter, the present suit was brought by Gambheermal and others for pre-emption. Their case was that the gift deed was a collusive transaction and was in reality a sale-deed and they were, therefore, entitled to pre-empt.
3. The suit was resisted by Gulab Chand and his sons and two main questions arose for decision in the courts below. The first was whether the gift deed was in reality a deed of gift or a mere colourable form of a sale-deed. This question has been decided against the defendants and I think rightly so. The second question was whether the plaintiffs Gambheermal and others could claim pre-emption against Gulab Chand and his sons or whether Gulab Chand and his sons had a preferential right over Gambheermal and others. It is the second question alone which has been argued before me.
4. The answer to this question depends upon the interpretation of Section 3 of the Law of Preemption in Marwar. That section provides that the right of pre-emption in respect of a house or a building plot shall belong to the under mentioned in the following order:
(1) to the joint owner of the house or building plot.
(2) to person related within three degrees to the vendor of the house or building plot.
Provided that the nearer in degree shall have priority over one more remote.
(3) to a person owning immoveable property touching the house or building plot in respect of which pre-emption is claimed.
5. Gulab Chand and others claim that they come within the 2nd clause of Section 3 and thus have a preferential right as compared to Gambheermal and others who come under the third clause and, therefore, the suit should have been dismissed. This raises two points the first of which is the relationship of defendants with Ghisu Lal. On that point, the learned Additional District Judge has observed as follows: ''There is no doubt that Ghisu Lal is related to Gulab Chand on the maternal side and not on the paternal side, Sesmal being the father of Gulab Chand and his sister Munni, whose son Ghisu Lal is.'
According to this, the pedigree would be as follows:
Gulabehand Mt. Munni(daughter)
| Ghisu Lal
| | | |
Bhan warlal. Nathmal. Champa Lal. Mohanlal.
6. Learned counsel for respondents urges that this pedigree is not proved. It is, in my opinion, too late in the day to raise this question of fact in second appeal. There was apparently no dispute about this relationship in the earlier stages of the suit for the issue was framed by the Munsif in these terms:
'Whether defendant No. 1 being real maternal uncle of defendant No. 6 had a better right of pre-emption over the house and the shop in dispute.'
It was at a very late stage that it was disputed that Gulab Chand was not the maternal uncle of Ghisu Lal. I must, therefore, accept the categorical statement in the judgment of the learned Additional District Judge which proves the pedigree I have set out above.
7. The second question that arises is whether the purchaser Gulab Chand and his sons are related within three degrees to the vendor Ghisu Lal. It is obvious from this pedigree that Ghisu Lal is related within three degrees to Gulab Chand as well as Gulab Chand's sons. The contention of the learned counsel for respondents is that as this relationship is through a female Mt. Munni, the case is not covered by the second clause of Section 3. Reliance in this connection is placed on -- 'Sohanraj v. Mt. Maryam', 1942 M.L.R. 156 (Civil).
In that case, two points arose for determination. The first was whether the word 'person' used in the second clause could only refer to a male or could also refer to a female. The learned Judges held that the word person applied to both males and females. The second point that arose was whether the step-mother of the vendor could be said to be related within three degrees with him. The learned Judges held that the step-mother was not so related and this view might be correct for that particular case. But there are certain observations in the judgment on which the learned counsel for respondents relies and which are of a general character. These observations at page 158 are as follows :
'The method of counting the degree of relationship is to count back to the common ancestor treating him as No. 1. It irresistibly follows that both the vendor and the vendee must be descendants of a common ancestor. In this view of the matter, the sister of a vendor having descended from the same ancestor as the vendor and being also related to that ancestor within the third degree, would undoubtedly fall within the category of persons mentioned in Clause 2 of Section 3.
But the mother or the step-mother of the vendor cannot be deemed to be, the descendant of a common ancestor with the vendor within the third degree. The persons descended from a common ancestor are known as 'Ashkhas Jaddi'. A woman by marriage does no doubt, become a member of the family to which her husband belongs but that fact does not enable her to say that she has descended from a common ancestor with her husband or her husband's descendants, because she comes from an entirely separate 'Jad'.'
8. Reliance was placed on two cases of the Allahabad High Court in this connection, namely, -- 'Ram Pal v. Mt. Batashia', AIR 1921 All. 199 (1) and -- 'Mt. Bachuli v. Udai Singh', AIR 1933 All. 391. It may be pointed out that Section 3 of the Law of Pre-emption in Marwar which the learned Judges were interpreting does not contain the word 'ancestor' anywhere nor is there any mention of the words 'Ashkhas Jaddi' in it. The words of the section are merely these 'to person related within three degrees to the vendor'. It seems to me, therefore, that it was not necessary to import into this section the peculiar meaning which attaches to the words 'common ancestor' in Hindu Law or to the words 'Ashkhas Jaddi'.
In -- 'Ram Pal's case', the custom was that pre-emption could be claimed by two categories of co-sharers, namely 'Ashkhas Jaddi' & 'Shurkai deh'. It was then held that 'Ashkhas Jaddi' meant persons descended from a common ancestor and excluded persons descended through a female. This case, therefore, in my opinion, has no bearing upon the interpretation of the words of Section 3(2) with which I am concerned.
9. In-- 'Mt. Bachuli's case', AIR 1933 All 391 she had brought a suit for pre-emption against Mt. Katgi. Mt. Katgi was the widow of Mt. Bachuli's uncle and a question arose whether she was related to the vendor within the third degree. It was urged that she was not related within the third degree because she was a female and not a male. The learned Judges, however, came to the conclusion that a person would be a relative whether a male or a female but held that the relation must be with the vendor within the third degree and in that case Mt. Bachuli was only a relation within the third decree of the vendor's deceased husband. This decision, in ray opinion, cannot be understood to have held that the relationship must always be through males and cannot be through a female.
10. A glance at the pedigree which I have set out above shows that Gulab Chand and his sons are related within three degrees to Ghisu Lal vendor. Degrees are counted from a common stock and in this case, the common stock was Sesmal and Ghisu Lal is thus related within three degrees to Gulab Chand and his sons. The word 'related' used in Section 3(2) refers to consanguinity from a common, stock and is obviously opposed to affinity or relationship by marriage. There is no reason to hold that the relationship contemplated in Section 3(2) must be through males and not through females. That would be introducing certain words into the section which are not there. I may in this connection refer to certain cases where the words 'relations or 'rishtedar'' have been interpreted. In -- 'Ram Din v. Pokhar Singh', 2 All LJ 253, the words to be interpreted were 'karibi rishtedar' and it was held that a sister's son of the vendor was a 'karibi rishtedar'.
11. Section 9 of the Oudh Laws Act also prescribes a kind of right of pre-emption and the first clause mentions co-sharers of a certain kind in order of their relationship to the vendor or mortgagor. This word 'relationship' came to be interpreted in -- 'Muhammad Ayub Khan v. Mst. Kaniz Fatima Bibi', 14 Oudh Cas. 193 and it was contended that the relationship contemplated under that section was through males. This contention was repelled and it was held that the word 'relationship' meant consanguinity from a common stock as opposed to affinity or relationship by marriage.
To my mind, therefore, the words of Sub-section 3(2) of the Law of Pre-emption in Mar-war are quite clear and cannot be confined to relationship solely through males and must include descendants through females also. Just as the word 'person' used in Section 3(2) refers either to males or to females, similarly the word 'related' must refer to relationship either through males or through females. There is no reason for confining this relationship through males only as there is no reason to hold that the word 'person' refers only to males. It seems to me, if I may say so with all respect, that the learned Judges of the Chief Court of the former State of Jodhpur were perhaps led away to hold that relationship must be through males because they imported the words 'common ancestor' or 'Ashkhas Jaddi' which are nowhere to be found in this section.
12. In this view of the matter, Gulab Chand and his sons being related to the vendor Ghisu Lal within three degrees have a preferential right over the plaintiffs-respondents who only claim under Section 3(3) of the Marwar Law of Preemption.
13. I, therefore, allow the appeal, set aside the decree of the Additional District and Sessions Judge No. 2, Jodhpur, and restore the decree of the Civil Judge of Sojat dismissing the suit of the plaintiffs-respondents, though on a different ground. The appellants will get their costs from the plaintiffs-respondents throughout.