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Kalu Ram and anr. Vs. Madho Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal Nos. 169 of 1967 and 108 of 1968
Judge
Reported inAIR1973HP81
ActsPunjab Pre-emption Act, 1913 - Sections 8(2), 15 and 31; ;Punjab Pre-emption (Amendment) Act, 1960; ;Limitation Act, 1908 - Section 5
AppellantKalu Ram and anr.
RespondentMadho Ram and anr.
Appellant Advocate S. Malhotra,; H.K. Bhardwaj,; K.D. Sud and;
Respondent Advocate A.C. Sud and; Chhabil Dass, Advs.
Cases ReferredMata Din v. A. Narayanan
Excerpt:
- d.b. lal, c.j. 1. these are two connected and consolidated regular second appeals, and can conveniently be disposed of by a single judgment. both the suits related to the right of pre-emption claimed by the plaintiffs on the basis of their being co-sharers, along with the vendors. in both suits, the vendees are strangers to the family of the vendors. rsa no. 169/67 is directed against the decision of the district judge, hoshiarpur, whereby agreeing with the finding of the senior sub-judge. kangra. he has dismissed the suit of the plaintiffs kalu ram and three others and repelled their contention that the notification no. 4669 dated 6th march. 1917 (hereinafter to be referred as the notification of 1917) does not hold the field because of the amendment of section 15 of the punjab.....
Judgment:

D.B. Lal, C.J.

1. These are two connected and consolidated regular second appeals, and can conveniently be disposed of by a single judgment. Both the suits related to the right of pre-emption claimed by the plaintiffs on the basis of their being co-sharers, along with the vendors. In both suits, the vendees are strangers to the family of the vendors. RSA No. 169/67 is directed against the decision of the District Judge, Hoshiarpur, whereby agreeing with the finding of the Senior Sub-Judge. Kangra. he has dismissed the suit of the plaintiffs Kalu Ram and three others and repelled their contention that the notification No. 4669 dated 6th March. 1917 (hereinafter to be referred as the notification of 1917) does not hold the field because of the amendment of Section 15 of the Punjab Preemption Act 1913 (hereinafter to be referred as the Act of 1913) by the Punjab Pre-emption (Amendment) Act. 1960 (hereinafter to be referred as the Amendment Act of 1960). The plaintiffs in thatsuit claimed to be co-sharers with Sita Ram vendor and the latter had sold on 31st May, 1960. 5 kanals and 9 marlas of his land in Tika Aloh. Mouza Kaleha of Tehsil Dehra, in favour of one Madho Ram who was a stranger to the family of Sita Ram. Accordingly the plaintiffs claimed a preferential right to pre-empt over Madho Ram and filed the suit for claiming back possession of disputed land from Madho Ram by exercise of their right of pre-emption. The contention of the defendant-vendee has been that the notification of 1917 excluded co-sharers and deprived them of their right of preemption conferred by Section 15 (b) Fourthly, of the Act, of 1913. Therefore the plaintiffs could not claim a right of pre-emption. In reply, the plaintiffs contended that Section 15 of the Act of 1913 has been drastically amended by the Amendment Act of 1960 and as such the said notification of 1917 cannot he reconciled and made to stand together with these amendments. In the result, the said notification no longer stands and the plaintiffs revive their right of pre-emption. The contention of the plaintiffs did not find favour both with the trial Court and the first appellate Judge. The suit was accordingly dismissed. The plaintiffs came in second appeal before the High Court.

2. A learned single Judge of this Court (P. S. Safeer. J.) however, found that an important question of law arose in the case, inasmuch as there was conflict of decision as to the validity and enforcement of the notification of 1917 in pre-emption cases. He has, therefore, recommended, for constitution of a larger Bench so that the controversy is resolved and an authoritative decision is given. Accordingly the learned judge made a reference order and the present Division Bench is constituted for the purpose.

3. At a subsequent date. R.S.A. No. 108 of 1968 was instituted. This second appeal is directed against the decision of the District judge, Mandi. who has reversed the finding of the Subordinate Judge. First Class Kulu and has decreed a similar suit for pre-emption filed by Lahna Ram against Smt. Dugli and others. It was stated in that suit, that Smt. Dugli sold to Behari Lal and four others (Defendants 2 to 51 by a sale-deed dated 21st December, 1963. 13 bighas and 4 biswas of land situate in Phati Jarri, Kothi Harkandhi of Tehsil and District Kulu. The plaintiff claimed to be co-sharers with Smt. Dugli defendant vendor. According to him. the vendee-defendants are strangers to the family and as such the plaintiff has a preferential right to pre-empt the property against them. Again the contention of the vendee-defendants has been, that the notificationof 1917 excluded co-sharers from claiming right of pre-emption. As such the plaintiff cannot have such right against them. The plaintiff contended in reply that the said notification of 1917 no longer held the field because the same has been impliedly repealed by the amendments made in Section 15 by the Amendment Act of 1960. The contention of the plaintiff did not find favour with the learned Subordinate Judge and he dismissed the suit. However, the learned District Judge Mandi disagreed with him and decreed the suit, holding that the notification of 1917 was no longer good law having been impliedly repealed by the amendments of Section 15 by the Amendment Act of 1960.

4. It is manifest, in both the suits a common question of law arises, in so far as the question relates to the right of pre-emption which can be claimed by a co-sharer against a stranger, and the validity or otherwise of the notification of 1917 which affects such right is directly a question at issue. Therefore, it has been considered advisable to connect and consolidate the two second appeals.

5. It is thus evident that one important point that falls for consideration is. as to whether the notification of 1917 has in substance and effect been repealed by the amended Section 15 of the Act of 1913. The said notification may then conveniently be reproduced-

'Notification No. 4669, dated 6th March, 1917:--

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 the Clause (a) of Section 15 to the person 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.

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

This notification was issued in exercise of the power conferred upon the local Government by Section 8 (2) of the Act of 1913. This section may now be reproduced:--

'8. (1) Except as may otherwise be declared in the case of any agricultural land in a notification by the Local Government, no right of pre-emption shall exist within any Cantonment.

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

Since the effect of amendments made in Section 15, upon the notification of 1917, is a subject-matter of enquiry, it would be proper, for sake of elucidation, to lay down section 15 both in original and amended shape as it exists in the Act of 1913:--

Original Section 15

'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, 13 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 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 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 pre-emption 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 pattior 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 orfather, the word 'agnates' in this section shall mean the agnates of the person through whom she has so succeeded '

Amended Section 15

'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 father's brother's sons 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 iointly.-

FIRST, in the sons or daughters or sons' sons or daughters' 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 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 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 soils of the vendors;

THIRDLY, in the father's brothers or father's brother's 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 preemption 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'sbrothers or the mother's 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.'

6. While referring to the Act of 1913. the learned counsel also relied upon Sections 6 and 31 of the said Act and, therefore, these may also be reproduced:--

'6. Exists in agricultural land and village immovable property.--A. right of pre-emption shall exist in respect of village immovable property and subject to the provisions of Clause (b) of section 5. in respect of agricultural land, but every such right shall be subject to all the provisions and limitations in this Act contained.'

'31. Punjab Pre-emption (Amendment) Act 1960 to apply to all suits.--No Court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, 1959, which is inconsistent with the pro-visions of the said Act.'

7. As a result of application of Section 22 of the Punjab General Clauses Act (reproduced below), the learned counsel for the plaintiff-pre-emptor contended, that the notification of 1917. being inconsistent with the provisions re-enacted, ceases to continue in force and as such the co-sharers revive the right of pre-emption as against strangers.

'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 or Regulation, 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.'

We were rather half inclined to cut short the controversy by making a reference to Section 22 (aforesaid) and by seeing that prima facie the provision regarding co-sharer is not inconsistent with the provision re-enacted, and as such continues in force in the notification of 1917. In the original Section 15 (b) Fourthly, co-sharers were given right of pre-emption and similarly under the amended section 15 (1) (b) Fourthly, co-sharers have been given the right of preemption. Therefore, the re-enacted provision has repeated the original provision and if the notification was issued in respect of the original provision, it can be made to stand in respect of the re-enacted provision and to that extent, there would be no inconsistency. If the notification of 1917 excluded co-sharers, it nonetheless excludes co-sharers in the re-enacted provision. This device was already adopted by a learned single judge of this Court while deciding R. S. A. No. 289 of 1967 on 26-8-1968 (Gokal v. Santu). Before him. the plaintiff was agnate co-sharer whose right to pre-emption existed under original Section 15 (b) Secondly, and the notification of 1917 left unaffected the right of pre-emption claimed by an agnate co-sharer. This right was taken away by the amended Section 15 inasmuch as the distinction was not drawn between agnate co-sharers and other co-sharers. The learned judge held that the preferential right of agnate co-sharers has been taken away by the legislature. The plaintiff could claim a right of pre-emption as ordinary co-sharer and since this right existed in the original Sec. 15 as well as in the re-enacted Section 15. there is no inconsistency between the two provisions within the meaning of Section 22 of the Punjab General Clauses Act and the plaintiff having been deprived of his right of pre-emption as co-sharer by the notification of 1917 which still stands as good law, cannot claim such right and his suit was dismissed. The learned Judge refused to enter into another facet of the controversy, as, according to him. the notification was prima facie consistent with the re-enacted Section 15. Similarly. in the instant case, we could hold that the provision regarding co-sharers has been kept intact, in the re-enacted Section 15 and in so far as co-sharers are concerned, the notification of 1917 has remained unaffected by the amendments. As such, the said notification stands valid for co-sharers and they are excluded from claiming a right of pre-emption. The plaintiffs, therefore, in these two suits, should be deprived of their right of pre-emption and the two suits should be held dismissed on this short ground.

8. The learned counsel, however, led us through the entire provisions contained in Section 15, both original and amended, and made copious reference to each classification made in that section.Therefore, we consider ourselves bound to discuss the entire classifications of Section 15 in order to ascertain, as to whether the re-enacted Section 15 has necessarily done away with the notification of 1917. We shall then at once advert to the changes that have been brought about by the re-enacted provision.

9. At first, we shall take up. as to what has been excluded from the re-enacted Section 15. It is manifest, by a simple comparison of the two provisions, that what has been old Section 15 (a) is now re-enacted Section 15 (1) (a) and (c). Distant heirs are excluded and nearer heirs are preferred and specified. The exclusion of distant heirs has obviously been done under a legislative power. The notification of 1917, in fact, neither conferred nor took away, any right of pre-emption in relation to heirs specified in original Section 15 fa), because that part of the section was left unaffected by the notification. aS such no question of inconsistency should arise in so far as that part of the section is concerned. Regarding the exclusion provided by the re-enacted Section 15 (1) (b) which is equivalent to original Section 15 (b), again distant heirs save been excluded and nearer heirs have been specified. It may as well be. that the preference of one heir over the other might be different than what has been under original Section 15 (a) and (b). The distinction between agnate co-sharers (Secondly) and other co-sharers (Fourthly) of old Section 15 (b) has been done away with. Instead only co-sharers have been provided in Fourthly of re-enacted Sec. 15 (1) (b). So far as the exclusion of distant heirs is concerned and so far as the removal of distinction between agnate co-sharers and other co-sharers is concerned, the notification of 1917 did not have any effect. It is obvious that the notification did not relate to other provisions of old Section 15 (b). except to its provision Fourthly which related to other co-sharers. To this extent, the notification cannot be considered to be inconsistent with the re-enacted provision inasmuch as distant heirs were excluded and agnate co-sharers were specified and described in the section. The co-sharers Fourthly, were repeated as such in the re-enacted provision. As we have already stated, the provision having been repeated could not be considered to be inconsistent in any manner. The notification of 1917 excluded co-sharers and nonetheless the exclusion will hold good even now after re-enactment.

10. The third exclusion relates to old Section 15 (c). The entire provision is excluded from re-enacted Section 15 and the exclusion relates to sale affecting superior or inferior proprietary right, sale by owners of the 'Pati' or other sub-divisions of the estate, and sale by owners of estate. If a sale relating to this category has been excluded from the re-enacted provision, thereby no inconsistency can be stated to creep in. What has thus been excluded, does not affect in any mariner the other re-enacted provision, and what is thus excluded. Simply ceases to exist without leaving any mark upon the remaining part of the notification, therefore, the exclusion of this category of sale shall not lead to any inconsistency, and thereby the notification of 1917 cannot be held to have been impliedly repealed.

11. The 'explanation' of original Section 15 has been replaced by re-enacted Section 15 (2). Again this provision relates to sale by a female of land or property to which she has succeeded through father or brother or husband. The heirs are specified in whose favour the right of pre-emption shall devolve. This amendment was made because after 1956 the female heirs became full owners of land or property, and so the re-enacted provision was considered necessary. To this extent as well the notification of 1917 cannot be considered to be inconsistent with the re-enacted provision. The said notification did not specify anything regarding the 'explanation' and as such re-enacted provision has also remained unaffected by the said notification. In the result we have no hesitation in holding that what has been excluded from original Section 15 is not inconsistent to the effect otherwise provided by the notification of 1917 and as such the said notification, nevertheless these exclusions, still holds good. What has been excluded cannot be inconsistent, unless it makes the application of the notification either impossible or contrary to the re-enacted provision.

12. Much capital has been laid by the learned counsel, by making a reference to what has been included by the re-enacted Section 15. In this connection, it is contended, that tenants without distinction of their being occupancy or non-occupancy, have been, conferred the right of pre-emption. This has been done in accordance with the policy of agrarian reform for which so much was stated by a learned Judge V. S. Deshpande while deciding S. A. No. 279 of 1967 on 24-9-1968 (Delhi) (Kashi Ram v. Inder Singh). The occupancy tenants have all been converted into proprietors by the enforcement of the Pun-jab Occupancy Tenants (Vesting of Proprietary Rights) Act. 1923 (Act No. VIII of 1953). That is why the distinction between occupancy and non-occupancy tenants no longer holds good and the right of pre-emption given to Occupancy tenants by Fourthly and Fifthly of old Section 15 (c) could be converted in the amended section into a right given totenants-at-will. Therefore, re-enacted Section 15 (1) (a) (b) and (c) was provided. It is manifest, the notification of 1917 did not state anything regarding old Section 15 (a) and (b) in so far as the tenants could be concerned. If tenants-at-will have been introduced by the re-enacted Section 15. that has been done in exercise of legislative power. The provision so introduced is not inconsistent with any effect created by the notification of 1917. Therefore, the said notification shall remain standing, despite the introduction of tenants-at-will in the re-enacted Section 15. As we have stated before, the occupancy tenants no longer remained in the field and, therefore, that part of the notification had become redundant, and what has become redundant, cannot be considered to be inconsistent with the re-enacted provision. The redundant provision, no doubt, does not render the working of the notification impossible or contrary to the re-enacted provision.

13. In the result, we must hold that the notification of 1917 still holds good and the re-enacted provision does not make it inconsistent in any manner. The said notification can certainly coexist with the re-enacted. Section 15 and no question of its implied repeal has arisen. In short, the notification can be reconciled and made to stand together with the re-enacted Section 15.

14. The learned counsel for the plaintiff-pre-emptors argued with great insistence, that Section 31 of the Act of 1913 (Section having been introduced by the Amendment Act of 1960) makes it obligatory that the right of co-sharers for pre-emption is protected and should not be taken away by the notification of 1917. According to learned counsel, to say otherwise would be to bring in a situation inconsistent with the provisions made by the Amendment Act of 1960 for which an embargo has been placed in Section 31 As observed by V. S Deshpande, J.. in RSA No. 279 of 1967 (Delhi) (supra), as also held, by the learned single Judge who referred one of these appeals to this larger Bench, the words 'said Act' in Section 31 do refer to the provisions brought in by the Amendment Act of 1960. Still, in our opinion, the effect of the notification of 1917 cannot be dissolved by making a reference to Section 31. This is so. because Section 31 will stand or fall along with Section 8 of the Act of 1913 which has remained unaffected by the Amendment Act of 1960. Under Section 8 (2) (supra). the local Government was given the legislative sanction to exclude any local area so that any class of sales could not give rise to a right of pre-emption. Upon this legislative sanction, theDistrict of Kangra was excluded for claiming right of pre-emption by a co-sharer against a stranger. If the effect of Section 31 is to do away with any right of exclusion, that can be claimed by the local Government under Section 8 (2), to that end, in our opinion. Section 31 cannot be applied. On the principle of harmonious construction, both Sections 8 and 31 will have their independent effect. The re-enacted Section 15 is by itself subject to Section 8 and only so far as the said section remains unaffected by Section 8. it has been protected by Section 31. The purpose behind Section 31 is to confer and protect right of pre-emption only to the extent conferred by Sections 6 and 15, lest the Courts may be tempted to grant or refuse right of pre-emption in a situation not contemplated under these re-enacted sections. This appears to be the genesis of Section 31. and nothing beyond should be inferred. In Section 6, the word 'but every such right shall be subject to all the provisions and limitations in this Act contained' make it abundantly clear that Section 8 has been given its full force. This is another reason w' Section 31 should be made subject to Section 8.

15. At this stage. We think itnecessary to refer to the case law on the subject. The earliest case of the series, that has been placed before us is reported in AIR 1922 Lah 474 (1) (Jalal Din v. Nathu Ram). Their Lordships were considering Section 6 of the Act of 1913 vis-a-vis the notification issued under Section 7 of the Punjab Pre-emption Act of 1905. It appeared that under Section 7 of the Act of 1905 certain area was excluded from the scope of the Act. The argument was that the notification had become inconsistent with the re-enacted Section 6 of the Act and as such the said notification should be cancelled. The argument was not accepted and on the basis of Section 22 of the Punjab General Clauses Act. it was held that Section 7 was not cancelled by Section 6 and the notification issued under the former could not be set aside. A similar situation seems to arise in the instant cage, because the notification issued under old Section 15 is stated to be cancelled by re-enacted Section 15. The test is decidedly of 'inconsistency' and we have already found that no such inconsistency exists in the re-enacted Section 15 so as to render nugatory the notification of 1917.

16. In Bishan Singh v. Khazan Singh (AIR 1958 SC 838), which is a case under the Punjab Pre-emption Act of 1913. their Lordships held that the right of pre-emption is 'a very weakright' and can be defeated by all legitimate methods, In our view, the right is a piratical right which creates an obstacle in the way of a legitimate owner of property to sell it to a person of his own choice. If the notification of 1917 took away the right of pre-emption of a co-sharer, in any given area, the same right shall not be reconferred for any lighter reason. We are, therefore, inclined to hold that the notification of 1917 still holds good and the said right stands taken away as it was taken away before, under old Section 15.

17. In Ram Samp v. Munshi (AIR 1963 SC 553). their Lordships considered the retrospective effect created by Section 31 of the Act of 1913. In that case, the notification of 1917 did not figure in any manner. It was held that Section 31 has retrospective effect and the decree passed in favour of pre-emptor owner of estate could be vacated by the appellate Court because under the re-enacted Section 15 such a right of pre-emption was taken away. This decision was referred to by the learned counsel for the plaintiff-pre-emptors, and, to our opinion, would not be of much help to them.

18. Then we come across almost a direct case of a Division Bench of the Punjab High Court, with which we respectfully disagree. We refer to Parja Ram v. Ganga Ram (1966) 68 Pun LR 616). The plaintiff-pre-emptor claimed his right as he was tenant under the vendors. The notification of 1917 was pleaded so as to exclude occupancy tenants in Kangra District from claiming pre-emption. The learned Division Bench held that the said notification having been rendered inconsistent with the re-enacted Section 15 does no longer hold good and plaintiff-pre-emptor did possess right to pre-empt and the suit was decreed. The learned judge who spoke for the Bench, at one place held as below:--

'In the circumstances it would seem to be the result of a mere oversight that the notification regarding Kangra District of 1916 has not either been completely cancelled or suitably modified so as to make it applicable to the provisions of Section 15 as amended by the Act of 1960. It is in fact obviously completely impossible to apply the notification to the Section in its present form. If it was sought to be applied it would produce some absurd results such as that whereas a tenant, now appearing at fourthly in Clause (a) would enjoy the right of pre-emption under the terms of the notification in the case of a sale by a sole owner, covered by the old (a) he would not enjoy it in a sale cover-ed by Clause (b) of a share of joint land not made by all the co-sharers jointly or covered by the new (c) which is sub-division of the old (a). In my opinion it must be held that the terms of the notification are impliedly cancelled by the amendment of the Act in 1960 and that it has become a piece of dead woodwhich must be ignored.'

We have already disclosed how it is not impossible to apply the notification to the section in its present form. Regarding the so-called 'absurd results' as pointed out by the learned judge, to our regret, the reasoning does not appear to be sound. It would not be correct to state that the tenants now appearing at fourthly in Clause (a) would enjoy the right of pre-emption under the terms of the notification, because the notification itself did not confer any right of preemption upon tenant. Rather, the notification left unaffected old (a) and if a subsequent legislation enlarged its scope by introducing tenant, the notification had no bearing upon such re-enacted provision. To the extent, that the notification stated that persons specified in Section 15 (a) shall have right of preemption, it did nothing but to repeat what was already provided in old Sec-tion 15 (a). That statement in the notification was not even necessary. Therefore, to say that a tenant would get a right of pre-emption under the notification would not be correct because this right has been conferred not by the noti-cation but by the re-enacted provisions. Similarly the provision regarding tenant in re-enacted Section 15 (a) (b) does not refer to any part contained in the notification of 1917 and as such is not an inconsistent provision for the working of that notification. The notification did not state anything regarding the category of tenant which could be introduced under a subsequent legislation. The notification was, therefore, not inconsistent with such Introduction of a new category. We, therefore, do not agree with, the finding given by the learned judges of that Division Bench, wherein, the notification of 1917 has been considered as non-existent because of the amended Section 15.

19. We have already referred to R.S.A. No. 279 of 1967 (Delhi) decided by V. S. Deshpande, J. (supra). The learned Judge in that case, was dealing with a right of pre-emption claimed by a tenant of the vendor. His entire reasoning was, that being governed by legislative policy which introduced tenant in the category of persons who could claim pre-emption it must necessarily be held that the provision excluding occupancy tenants from claiming right of preemption, in the notification of 1917, has become inconsistent with tile said legislative policy andthe said notification must be struck down as impliedly repealed by the re-enacted Section 15. In our opinion, questions regarding legislative policy should be held foreign to our enquiry, so long as Section 22 of the Punjab General Clauses Act is clear and so long it cannot be held that the notification has become inconsistent in any manner with the re-enacted Section 15. If no such inconsistency can be found to exist in fact, the same cannot be inferred on the basis of any involved reasoning founded on legislative policy for re-enacting Section 15. Apart from this, how would the notification be considered inconsistent for anything with regard to which it had omitted to state, or with respect to which there was no occasion to state in it? If tenants-at-will were subsequently introduced in the section by legislature, the said provision is not inconsistent with the notification, simply because the said notification does not state anything regarding tenants-al will. The learned Judge stated that if the notification is now literally construed, then it would allow pre-emption to tenants. If it is so, there is all the more reason to hold that the notification is in consonance with the new agrarian policy. This cannot be a ground for striking down the notification. The learned Judge then Dosed a question as follows---

'Can it, then be said that a neir who is not included in new Section 15 (11 (a) can sue for pre-emption thereon because the notification of 1917 gives him the right to do so?'

The learned Judge is referring to a heir who is excluded in re-enacted Section 15 (1) (a) but included in old Section 15 (a). The question hardly arises, because such a heir if now excluded (being distant heir), has no right of pre-emption because the section itself has been amended for which the power was not derived under the notification. As we have already stated, old Section 15 (a) was excluded from their ambit of the notification and, therefore, whatever amendments were made in that part of the section also remained unaffected by the notification. We should say, with respects, that it would be an incorrect reasoning to hold that the notification Save any right to pre-empt to a heir included in old Section 15 (a). The notification simply stated that the heirs specified in old Section 15 (a) would get the right of pre-emption which was nothing but repeating the section itself. That part of the notification could even be avoided, as it neither added nor subtracted anything from old Section 15 (a) The learned judge then referred to Section 31 and held that the notification is rendered nugatory because no right of pre-emption conferred by Section 15 could be taken away by the notification of 1917. We have already replied to this part of the argument. The decision of the learned Judge in KSA No. 279 of1967 went in Letters Patent appeal before a Division Bench (LPA No. 19 of1968 decided on 10-6-1969). It is significant to note that the learned Judges of that Division Bench disposed of the appeal on the short question, very much similar to what we have posed before ourselves, that tenants-at-will were not dealt with in the notification of 1917, and as such the said notification neither conferred nor curtailed their right of preemption The plaintiff-pre-emptor in that case, being tenant, could, therefore, claim a right of pre-emption under the new Section 15. The following observations of their Lordships are material in this respect-

'It is obvious from the plain reading of the notification and the amended section that the right of the tenants to pre-empt sales, which has been conferred on them by virtue of the amended Section 15 of 1960. could not possibly have been destroyed or prejudicially affected by anything contained in the notification of 1917. Neither has any precedent been cited nor any principle pressed into service to justify a conclusion which prima facie seems to be wholly unacceptable. .........

It is not disputed that the amended Section 15, in clear and unequivocal terms, confers the right of pre-emption on the tenants: the earlier notification of 1917 does not. in my view, lay down a legislative command which would in any way militate against the conferment of such right on the tenants. To accede to Chaudhry Rup Chand's contention would really amount to saying that the right conferred on the tenants in 1960 remained still born because of the earlier notification. I am unable to accede to such a contention.'

While dealing with Section 31. the Division Bench referred to the opinion expressed by V. S. Deshpande, J., and observed that it was not necessary to enter into that controversy and hence they refrained from expressing any considered opinion on the scope and effect of Section 31. We cannot be supposed to be saying 'anything contrary to the Division Bench which decided LPA No. 19 of 1968, which is in fact a decision of this very Court. In RSA 289 of 1967 decided on 26-8-1968 (Delhi) (supra) Hardiayal Hardy, J.. took a similar view of the case as we have taken. His Lordship was dealing with a case of plaintiff-pre-emptor who was a co-sharer. It was held thatqua en-sharers, the notification of 1917 remains unaffected by the re-enacted Sec. 15 and as such the said notification excludes co-sharers in Kangra District from claiming pre-emption. It was held that the notification is not inconsistent with the provisions re-enacted and cannot be deemed to have been repealed. The following observation is material and may be quoted:--

'As I read Section 15 before as well as after the amendment, in so far as it is relevant for the purpose of the present case, all that it means is that co-sharers had a right of pre-emption then and they have the same right even now. What the amendment has done is to delete the preferential right of one particular class of co-sharers namely co-sharers who were also agnates. So far as the general class of co-sharers is concerned there is no change in their position and as such there is no inconsistency between the provision that has been repealed and the provision that has been re-enacted. Under the aforementioned notification a co-sharer in Kangra District had no right of pre-emption. A fortiori the plaintiff will have no such right even now. aS regards his claim as an agnate co-sharer, the notification under the old section did not affect his right and it does not touch his right even now. His light as such has however been taken away by the legislature and it is not the case that there was lack of competency in the legislature to do so.'

20. Therefore, our considered view is that the notification of 1917 can be reconciled and made to stand together with the re-enacted Section 15 and the same has not been impliedly repealed.

21. In RSA No. 108 of 1968. a short question was posed, based on the bifurcation of Kangra District and creation of independent Kulu District out of its area. It was submitted by the learned counsel that the notification of 1917 related to Kangra District and hence should not be considered to relate to Kulu District. To us, it appears, that the entire reasoning is misconceived. The area comprising Kulu District was certainly the area covered by Kangra District. If under Section 8 (2) of the Act of 1913. the local Government had declared that no right of pre-emption could be exercised by a co-sharer with respect to the area comprising Kangra District it logically follows that wherever portions of area belonging to Kangra District have gone so as to comprise the new District, the said disqualification shall apply to such portions as well. The exclusion is with respect to a local areaand if a new name of District has been given to any local area, that will not make any difference. Therefore, in our opinion, the notification of 1917 as much relates to Kulu District as it related to Kansra District because on the date the notification was issued, Kulu District was part of Kangra District.

22. Again in respect of RSA No. 108 of 1968. the learned counsel for the respondents referred to the order dated 7th June, 1968 passed by the learned District Judge. Mandi. in so far as he held that whatever delay was committed in preferring the first appeal before him, is to be condoned under Section 5 of the Indian Limitation Act. The learned counsel contended that the delay could not be condoned and as such the first appeal was time-barred. As revealed by the order of the District Judge the judgment of the trial Court was pronounced on 21-12-1965. and on that very day an application for obtaining copy of such judgment was given. The copy was prepared on 31-12-1965. The limitation for filing the appeal expired on 30-1-1966. The Civil Courts at Kulu were closed for winter vacation from 15-1-1966 to 14-2-1966. The learned counsel who represented the appellant in first appeal, considered that the Sub-Judge at Kulu was competent to receive the appeal, as he was duly authorised to receive the same. This was, no doubt, the practice at Dharamsala where the Senior Sub-Judge. Kangra, was authorised to receive first appeals on behalf of the District Judge. Being under that impression, the learned counsel filed the appeal on the opening day. i. e. an 15-2-1966. before the Sub-Judge, Kulu. As subsequently revealed, the Sub-Judge, Kulu had no right to receive the first appeals and. therefore, he returned the same to the learned counsel for presentation to the proper Court. The learned counsel then sent the appeal by post to another counsel at Dharamsala and the first appeal was filed before the Senior Sub-Judge, Dharamsala. who was competent to receive it. on 22-2-1966. In this manner, 6 days' delay was caused in filing the appeal before the Senior Sub-Judge, Dharamsala. if the days are reckoned from 15-2-1966 which was the opening day after vacation at Kulu. It was contended before the learned District Judge that this delay could not be condoned. However, the learned District Judge held that a bona fide mistake was committed by the counsel and that was a sufficient cause for condoning the period of delay. It is already observed in Mata Din v. A. Narayanan (AIR 1970 SC 1953) that mistake of counsel will not in every case by itself be sufficient ground to condone delay. However, if in a given situationnothing is shown to indicate that error of counsel was tainted by any mala fide motive, the Court would be justified in extending time. In our opinion, for the reasons given by the learned District Judge, it could be stated that the learned counsel presenting the appeal was not governed by any mala fide motive. He committed a genuine mistake as he thought that the appeal could be preferred before the Sub-Judge. Kulu. It could not be held that any negligence was committed by such counsel. In the circumstances, in our opinion, the learned District Judge was right in condoning whatever delay was caused for filing the first appeal.

23. With these findings, therefore we must hold that the plaintiff-preemptors, being co-sharers, already stood excluded from claiming a right of pre-emption under the notification of 1917. In the result, the two Courts below rightly dismissed the suit is RSA No. 169 of 1967. We confirm the decision, and dismiss the second appeal.

24. However, the suit in RSA No. 108 has been wrongly decreed by the learned District Judge, and we allow this second appeal and set aside the decision of the learned District Judge and restore the decision of the learned Subordinate Judge. First Class. Kulu. The plaintiffs' suit in this second appeal shall also stand dismissed.

25. We, however, prefer to leave the parties to bear their own costs.

Chet Ram Thakur, J.

26. Iagree.


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