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Thoilu Vs. Krishan Gopal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberR.S.A. No. 43 of 1973
Judge
Reported inAIR1984HP58
ActsPunjab Pre-emption Act, 1913 - Section 15(1) and 15(2)
AppellantThoilu
RespondentKrishan Gopal and anr.
Appellant Advocate Prem Goel, Adv.
Respondent Advocate Kapil Dev Sood, Adv.
DispositionAppeal dismissed
Cases ReferredMoti Ram v. Bakhwant Singh
Excerpt:
- .....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 brother's 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 tenant who holds, under the tenancy of the vendor or vendors, the land or property sold or a part thereof. (c) whether 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 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 brother's or father's brother's sons of the vendors......
Judgment:

T.R. Handa, J.

1. 'Whether a stepson can claim a right of pre-emption under Section 15(1)(a), Punjab Pre-emption Act, 1913 (as amended up to date), hereinafter referred to as 'the Act' in respect of sale of self-acquired agricultural land effected by his stepmother' is the short and sole question which falls for consideration in this regular second appeal filed at the instance of the plaintiff whose claim to pre-empt such a sale has been negatived by both the Courts below.

2. The plaintiff-appellant is the son of one Mahantu by his first wife. Mahantu performed his second marriage with one Jaiwanti. Smt. Jaiwanti owned some land as her self-acquired property in the sense that She had not inherited the same. She sold this land to the present respondents. The plaintiff-appellant thereupon filed his suit giving rise to this appeal to pre-empt that sale. He claimed his superior right of preemption of the solitary ground that he was the stepson of the vendor Smt. Jaiwanti.

3. As stated earlier both the Courts below have ruled that the stepson of a female vendor has no right to pre-empt a sale made by her in respect of her self-acquired property.

4. Section 15 of the Act enumerates the various categories of persons who have been vested with the right of pre-emption in respect of the sates of agricultural land and village immovable property. This section reads;

'Section 15. Persons in whom right of pre-emption vest 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) Whether the sale is by a sole owner:--

First, in the son or daughter or son's son or daughter's son of the vendor, or;

Secondly, in the brother or brother's son of the vendor, or;

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 sons' sons or daughter's sons of the vendor or vendors.

Secondly, in the brothers or brother's 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 tenant who holds, under the tenancy of the vendor or vendors, the land or property sold or a part thereof.

(c) Whether 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 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 brother's or father's brother's sons of the vendors.

Fourthly, in the tenants who hold under the tenancy of vendors or any 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 the 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 brother or the mother's brother's sons of the vendor or vendors.

(b) Where the sale is by a female of theland or property to which she has succeededthrough her husband or through her son incase the son has inherited the land or property sold, from his father, the fight of preemption shall vest:--

(i) First, in the son or daughter of such(husband of the) female.

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

5. The short argument of Shri Prem Goel, the learned counsel for the plaintiff, is that this section makes no distinction between a son and a stepson and hence the expression 'son' as used therein should be interpreted to include a stepson also. In support of this contention Shri Goel relies upon a Full Bench decision of the Punjab and Haryana High Court in the case of Moti Ram v. Bakhwant Singh reported in AIR 1968 Punj & Har 141.

6. I have carefully perused this authority and all that I can say is that it has no bearing on the question with which we are confronted in the instant case. In the case of Moti Ram (supra) the pre-emptors claimed their right of pre-emption, under Section 15(2) of the Act whereas in the instant case the plaintiff pre-emptor has invoked Section 15(1) in support of his claim. The facts of the case of Moti Ram (supra), show that one Tarlok Singh had two wives Ind Kaur and Karam Kaur. He had sons from both these wives. On his death his property was inherited by his two widows named above and his sons from either of these wives. One of the widows, namely, Ind Kaur and his two sons from this widow sold the property which they had inherited from Tarlok Singh. This sale was sought to be pre-empted by the sons of Tarlok Singh from his other wife Karam Kaur. It was on these facts that the Full Bench of Punjab and Haryana High Court held that for the purpose of Section 15(2)(b) of the Act, son included astepson so as to entitle him to pre-empt thesale made by, his stepmother. This was donein view of the explicit language of Section 15(2)(b) which confers the right of pre-emption not on the son of the female vendorbut on the son of her husband throughwhom she had succeeded to the propertyforming, subject matter of the sale. Section 15(2)(b) governs the sale by a female of the land or property to which she hassucceeded: through her husband, or throughher son and the right to pre-empt such saleis conferred on the son or daughter of suchhusband of the female. Section 15 (1)(a)which has been invoked by the plaintiff insupport of his claim would on the otherhand be attracted where the vendor is thesole owner. Now a vendor may be a maleor a female. In either case the right of preemption has been conferred on the son ordaughter or son's son or daughter'sson of the vendor. In case of adaughter's son of the vendor. In case of afemale vendor this provision would applyonly when the case does not attract eitherSection 15 (2)(a) or Section 15 (2)(b). Inany case Section 15 (1)(a) would be applic-self-acquired property in the hands of thefemale vendor for admittedly in such a weneither Section 15 (2)(a) nor Section 15 (2)(b) would be attracted.

7. Now the words 'husband of the' were introduced before the last word 'female' in Section 15(2)(b)(i) of the Act by way of amendment effected by Punjab Act No. 13 of 1964. It was so done only in order to place at par all the sons of the deceased husband of the female vendor from whom the vendor had inherited the subject-matter of sale. The effect of this amendment is that now the son and stepson of the female Vendor who were from the loins of her Husband, the original owner of the subject-matter of sale, are treated alike for the purposes of right of pre-emption. The mere fact that the legislature felt it necessary to make the aforesaid amendment in Section 15(2)(b)(i) would go to show that the Legislature itself was of the view that the expression, son as used, in Section 15 would not include stepson or else there was no need to introduce the words husband of the in Section 15(2)(b)(i).

8. Now in case the intention of the legislature was to treat a stepson of a vendor at par with his or her son for the purposes of Section 15(1)(a) also, the same would have been specifically exhibited by making suitable amendments in this provision-as well like the one made in Section 15(2)(b). The legislature, however, intentionally made no such amendment and for obvious-reasons. The modern tendency of the Legislature as gathered from the various amendments made in the Act is to restrict the right of pre-emption and to curtail the list of pre-emptors. In so far as the right of pre-emption on the basis of relationship with the vendor is concerned. such light has been accorded on the principle of consanguinity. It is apparent from the plain language employed in Section 15(2)(b) of the Act. There being no such relationship between a stepmother and a stepson or for that matter between a stepfather and a stepson, this right was intentionally not conferred on the stepson irrespective of the fact whether the vendor was male or female.

9. Looking from yet another angle, in the absence of any statutory definition of the expression 'son' for the purposes of the Act. this expression must be given its natural meaning as commonly understood. There is a recognised distinction between a son and a stepson which terms are normally not taken at par. Son means a male child in relation to his parents i.e. his father and mother. He must be an offspring of his father and mother. A stepson qua a female cannot be said to be an offspring of such female. Similarly a stepson qua a male cannot be said to be an offspring of a male. There is thus a real distinction between a son and a stepson arid it is, therefore, not possible to subscribe to the view that son includes a stepson.

10. Lastly even if, there was any scope to Interpret the expression 'son' used in Section 15(1)(a) as including a stepson, the Courts would be most reluctant to adopt any such interpretation. The right of pre-emption in its very nature being aggressive and piratical, it must be construed strictly. In ease a provision dealing with such a right is open to two interpretations, it must be interpreted in a manner which would restrict its operation and be more favourable to, the vendee.

11. I thus find myself unable to agree with the contention of the learned counsel for the appellant that a son would include a stepson for the purposes of Section 15(1)(a) of the Act so as to recognize 'a right Of pre-emption in favour of the plaintiff to pre-empt the sate made by his stepmother: Since no other point is involved in this appeal, the same is dismissed with costs.


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