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Hakim and anr. Vs. Santu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 21 of 1970
Judge
ActsPunjab Pre-emption Act, 1913 - Sections 8(2), 15 and 15(1); ;Punjab Pre-emption (Amendment)Act, 1960; ;Punjab General Clauses Act, 1898 - Section 22
AppellantHakim and anr.
RespondentSantu and ors.
Appellant Advocate Chhabil Dass, Adv.
Respondent Advocate Kailash Chand, Adv.
DispositionAppeal allowed
Cases ReferredKanshi Ram v. Inder Singh
Excerpt:
- .....shall vest,-- (a) where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession who, but for such sale would be entitled on the death of the vendor or vendors, to inherit the land of property sold; (b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly, firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession; thirdly, in the persons, not included under firstly or secondly above, in order of succession, who but for such sale would be entitled on the death of the vendor to inherit the land or property sold;.....
Judgment:

V.P. Gupta, J.

1. The only point for consideration in this case is as to whether the notification No. 4662, dated 6th March, 1917, issued under Section 8 (2) of the Punjab Pre-emption Act, 1913, is still alive and operative or has been impliedly repealed by substituted and amended Section 15 of the Punjab Pre-emption (Amendment) Act No. 10 of 1960. This question has arisen in the following circumstances:--

One Dagu sold land measuring 38 kanals 12 marlas with share in Shamilat along with one house (as detailed in the plaint) situate in Tika Jagatkhana Mauza Thara, Tahsil Hamirpur, District Kangra to Santu and others, sons of Asa, respondents (defendants) by a registered sale deed, dated 28-4-1959, for Rs. 6,000.

2. Gokal plaintiff (appellants are legal representatives of Gokal plaintiff) filed a suit for possession by pre-emption on the ground that he was an agnate of Dagu vendor, within four degrees and was also a co-sharer in the Khata and for this reason he had a preferential right of pre-emption. It was also alleged that the sale price had not been fixed in good faith or actually paid and therefore the plaintiff was entitled to pre-empt the sale on payment of the market value of the property. The suit was contested by the vendees-respondents. On the pleadings of the parties the following preliminary issue was framed on 26-10-1960:

'Whether the plaintiff has a superior right of pre-emption? Opp,'

3. It was conceded by the learned counsel for the defendants-vendees that Gokal (plaintiff) was the father's father's brother's son of Dagu, vendor. From the documents produced on file it was proved that the plaintiff Gokal was a co-sharer in the land and was related to the vendor as stated above. Before the Sub-Judge, the vendees-defendants claimed that the plaintiff had no right to pre-empt the sale under the provisions of Section 15 of the Punjab Pre-emption Act of 1913 as amended by Punjab Act No, 10 of 1960. Another objection was that being a co-sharer, the plaintiff had no right of pre-emption by virtue of the notification No. 4662 dated 6-3-1917 issued under Section 8 (2) of the Punjab Pre-emption Act, 1913.

4. The Sub-Judge dealt with these objections of the defendants and decided the issue against the plaintiff, with the result that the plaintiff's suit was dismissed with costs on 7-12-1960.

5. Feeling aggrieved by the judgment and decree, the plaintiff filed an appeal but the District Judge vide his judgment and decree dated 24-5-1962 dismissed the plaintiff's appeal, and held that the plaintiff had no right of pre-emption in view of the amended Section 15 of the Punjab Pre-emption Act read with the notification No. 4662 of 1917 issued under Section 8 (2) of the Punjab Pre-emption Act, 1913.

6. The plaintiff filed a second appeal in the High Court and this appeal of the plaintiff was also dismissed on 26-8-1968 by Hon'ble Justice Hardayal Hardy (as he then was). The learned single Judge held that the notification No. 4662 of 1917 was still alive, operative and was not repealed by the amendments in the sections of Punjab Pre-emption Act, 1960.

7. Aggrieved from the aforesaid judgment, the plaintiff filed the present appeal which came up for hearing before a Division Bench of this Court on 19-11-1981. As important questions of law-were involved, and in the Division Bench judgments of the Punjab High Court in Praja Ram v. Ganga Ram, (1966-68 Pun LR 616) and of this Court in Kalu Ram v. Madho Ram, (ILR (1972) Him Pra 63) ; (AIR 1973 Him Pra 81) different views were taken, therefore, the case was referred to a larger Bench. In these circumstances, this appeal came up for hearing before us,

8. We have heard Shri Chhabil Dass, the learned counsel for the appellants (legal representatives of the plaintiff) and Shri Kailash Chand Sud for the respondents-defend ants.

9. It was contended by the learned counsel for the appellants that the notification No. 4662 of 1917 was issued under Section 8 (2) of the Punjab Pre-emption Act, 1913. Section 15 of the Punjab Preemption Act of 1913 was substituted by Punjab Pre-emption (Amendment) Act No. 10 of 1960. According to the learned counsel, by the substitution of new Sec. 15, there is a total change in the rights of persons who have a right of pre-emption. He contended that the notification No. 4662 of 1917, which was issued under Section 8 (2) of Punjab Pre-emption Act of 1913, was totally inconsistent with the provisions of amended section inserted by Punjab Pre-emption (Amendment) Act No. 10 of 1960.

The learned counsel also contended that by virtue of Section 31 of the Punjab Pre-emption Act (inserted by the Punjab Pre-emption Act No. 10 of 1960), no decree in any suit could be passed which was inconsistent with the provisions of the said Act. It was therefore argued that the plaintiff being a co-sharer in the khata had a superior right of pre-emption and that the notification No. 4662 of 1917 was inoperative. The learned counsel relied upon the reasonings given in the Division Bench judgment in Praia Ram's case (1966-68 Pun LR 616) (Punj) (supra) and an un-reported Division Bench judgment in L. P. A. No. 19 of 1968, Kanshi Ram v. Inder Singh, decided on 10-6-1969 (Delhi).

10. Shri Kailash Chand, the learned counsel for the respondents contended that the notification No. 4662 of 1917 was still alive and the same was not inconsistent to the provisions of Sec. 15 substituted by Punjab Pre-emption (Amendment) Act No. 10 of 1960. He referred to Section 22 of the Punjab General Clauses Act and also to the reasonings of the Division Bench judgment in Kalu Ram's case (supra). It was contended that the judgments in Praja Ram's case (supra) and Kanshi Ram's case (supra) were duly considered in the judgment in Kalu Ram's case (supra) by this Court.

11. We have considered the contentions of the learned counsel for the parties.

12. It will be expedient to reproduce the original Sec. 15 of the Punjab Preemption Act, 1913 and also Section 15 substituted by the Punjab pre-emption (Amendment) Act No. 10 of 1960. Original Section 15 reads as under:--

'15. Subject to the provisions of Section 14, 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 or occupancy tenant or in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession who, but for such sale would be entitled on the death of the vendor or vendors, to inherit the land of property sold;

(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly,

Firstly, in the lineal descendants of the vendor in order of succession;

Secondly, in the co-sharers, if any, who are agnates, in order of succession;

Thirdly, in the persons, not included under firstly or secondly above, in order of succession, who but for such sale would be entitled on the death of the vendor to inherit the land or property sold;

Fourthly, in the co-sharers;

(c) if no person having a right of preemption under Clause (a) or Clause (b) seeks to exercise it.

Firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold in the inferior proprietors, and when the inferior right is sold in the superior proprietors;

Secondly in the owners of the patti or other sub-division of the estate within the limits of which such land Or property is situate;

Thirdly, in the owners of estate;

Fourthly, in the case of a sale of the proprietary right in such land or property in the tenants (if any) having rights to the occupancy in such land or property;

Fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated.

Explanation.-- In the case of sale by a female of land or property to which she has succeeded on a life-tenure through her husband, son, brother or father, the word 'agnates' in this section shall mean the agnates of the person through whom she has so succeeded.' Substituted and amended Section 15 reads as under :

'15. Persons in whom right of preemption 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,--

(a) where the sale is by a sole owner,--

First, in the son or daughter or sons' 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 lather'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 sons' sons or daughter's 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 brothers' sons of the vendor or vendors;

Fourthly, in the other co-sharers;

Fifthly, in the tenants who holds under tenancy of the vendors the land or property sold or a part thereof;

(c) where the sale is of land or property owned jointly and is made by all the co-sharers jointly,--

First, in the sons or daughters or sons' sons or daughters' 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 sons of the vendors;.

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.

(2) Notwithstanding anything contained in Sub-section (1).-

(a) where the sale is by a female of 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 brothers or the mothers brother's sons of the vendor or vendors;

(b) where the sale is by a female of 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,--

First, in the son or daughter of such female;

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

13. The real controversy is, as to whether the notification No. 4662 of 1917 dated 6-3-1917, issued under Section 8 (2) of the Punjab Pre-emption Act, 1913, is still alive and operative or has become a dead wood in view of substituted and amended Section 15.

14. The notification No. 4662 dated 6-3-1917 reads as follows:--

'No. 4662.-- In exercise of the powers conferred by Section 8 (2) of the Punjab Preemption Act, the Lieutenant-Governor is pleased to declare that in the district of Kangra the right of pre-emption in respect of agricultural land and village immovable property shall be limited-

(1) in the case of a sale falling under Clause (a) of Section 15 to the persons mentioned in the said clause;

(2) in the case of a sale falling under Clause (b) of Section 15 to the persons mentioned in the sub-clauses firstly, secondly and thirdly of the said clause.

2. The persons mentioned in sub-clause fourthly of Clause (b) and in Clause (c) of Section 15 shall not exercise any right of pre-emption in respect of sales described in this notification.'

15. As the notification was issued under Section 8 (2) of the Punjab Pre-emption Act, 1913, therefore, the relevant portion of this section is being reproduced:

'Section 8. State Government may exclude areas from pre-emption.

(1)xxxxx

(2) The Stale Government may declare, by notification, that in any local area or with respect to any sale or class of sales, no right of pre-emption or only such limited right as the State Government may specify, shall exist.'

16. Now, in view of the notification of 1917 the right of pre-emption in District Kangra in respect of agricultural land and village immovable property was limited to the following per-sons :

(a) where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned or held, is by all of the co-sharers jointly, in the persons in order of succession who, but for such sale, would be entitled on the death of the vendor or vendors to inherit the land or property sold.

(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly,

Firstly in the lineal descendants of the vendor in the order of succession;

Secondly, in the co-sharers, if any, who are agnates, in order of succession;

Thirdly, in the persons not included under firstly or secondly above in order of succession who, but for such sale would be entitled on the death of the vendor to inherit the land or property sold.

17. If this notification is held to be alive, then the other persons now included in Clause (a) and (b) of the substituted and amended Section 15 can have no right of pre-emption. This, however could never be the intention of the legislature. Under the substituted and amended Section 15, in the case of, a sale by a sole owner the right of pre-emption vests firstly in the son or daughter or son's son or daughter's son of the vendor. Secondly, in the brothers or brother's son of the vendor. Thirdly in the father's brother or father's brother's son of the' vendor and fourthly in the tenant. Under this substituted and amended section widow, mother, son's daughter, daughter's daughter, son's widow, son's son's son, son's son's daughter, widow of a son's son have no right of pre-emption, although they have a right of succession being heirs in class I of the Schedule under the Hindu Succession Act.

Similarly, father, son's daughter's son, son's daughter's daughter, sister, sister's son, brother's daughter, sister's daughter, father's father, father's mother etc. have a right of succession being heirs in class II of the Schedule under the Hindu Succession Act, but they also have no right of pre-emption. In other words, it means that by the substituted and amended Section 15 (1') (a) the right of preemption vests with certain class of persons and not all the persons in order of succession who, but for such sale, would be entitled on the death of the vendor or vendors inherit the land or property sold. Further the right of preemption was limited to certain persons by the notification and according to this a tenant appearing in fourthly of Clause (a) of the substituted Section 15, would enjoy a right of pre-emption but a tenant who comes in clause fifthly of Section 15 (b) would not enjoy such a right because with respect to Section 15 (b) the right of pre-emption is restricted to clauses firstly, secondly and thirdly only.

18. In fact, the whole Section 15 is sub-statute by new Section 15 and even with respect to sales made by females, the criteria is quite different and distinct.

19. Thus if the notification of 1917 is held to be still alive, then the same will be inconsistent with the provisions of the substituted and amended Section 15 (1) (a). Similar is the position with regard lo Section 15 (1) (b) and same reasoning will prevail.

20. The notification of 1917 refers to the original Section 15 of the Punjab Preemption Act, 1913 and not the substituted and amended Section 15 of the Punjab Pre-emption (Amendment) Act No. 10, of I960.

21. The learned counsel for the respondents laid much reliance upon Section 22 of the Punjab General Clauses Act, which reads as follows:--

'22. Where any Punjab Act is repealed and re-enacted with or without modification, then unless it is otherwise expressly provided any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act. shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted.

22. We have already discussed that the substituted and amended Section 15 is quite distinct and different from the! original Section 15 of the Punjab Pre-emption Act. If the notification of 1917 is held to be applicable to the substituted: and amended Section 15, then it may pro-l duce such results which is not the intention of the legislature. The notification in fact is totally inconsistent with| the substituted and amended provisions of the Act.

23. Due to agrarian reforms the legislature wanted to give more rights to tenants etc. By Punjab Act No. 8 of 1953, the occupancy tenants became 'the owners of the land and other tenants could only be evicted in accordance with the provisions of the Punjab Security of Land Tenure Act (No. 10 of 1'953). It appears that for this reason the Punjab Pre-emption (Amendment) Act No, 10 of 1960 came into force so as to give a right of pre-emption to the tenants etc. In the 'Objects and Reasons' for enacting the provisions of Punjab Act No. 10 of I960, it has been mentioned that there was a continuous de-mind from the public to modify the Punjab Pre-emption Ac', 1913, because the village life had been considerably affected owing to resettlement of displaced persons and distribution of surplus land among tenants. The act was amended to promote developmental activities.

24. The Himachal Pradesh Division Bench in the case of Kalu Ram (AIR 1973 Him Pra 81') (supra) has only considered one aspect, that the numbering of the Section 15 and its sub-sections in the original Act and the amended Act remains the same. We, however, cannot contribute to this view simply on this ground.

25. In our view the Punjab Division Bench in Praja Ram's case (1966-68 Pun LR 616) (supra) has rightly held that if the notification is allowed to continue then it would produce certain absurd results.

26. Thus in view of the above discussion, we hold that in view of substituted and amended Section 15 of the Punjab Pre-emption Act, the notification No. 4662, dated 6th Mar. 1917 cannot be held to he alive and operative and the same shall be deemed Io be repealed by implication.

27. As a result of the above discussion, the present appeal succeeds and the judgments and decrees of the courts below are set aside. The suit is remanded to the court of Subordinate Judge, Hamirpur, for disposal in accordance with law.


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