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PETITIONER:

BHIKHA RAM

Vs.

RESPONDENT:

RAM SARUP AND ORS.

DATE OF JUDGMENT31/10/1991

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

MISRA, RANGNATH (CJ)

SAWANT, P.B.

CITATION:

1992 AIR 207 1991 SCR Supl. (2) 119

1992 SCC (1) 319 JT 1991 (4) 199

1991 SCALE (2)909

ACT:

Punjab pre-emption Act, 1913--Section 15(1) (b),

Fourthly---Pre-intention---A tam Prakash's emption--Pre and

post Amendment--Legislative case---Purport of.

Punjab pre-emption Act, 1913--Section 15(1) (b), Fourth-

ly--"Other ca-sharers "Construction.

HEADNOTE:

The appellant seeking to exercise the right of pre-

emption as a co-sharer, i.e. father's brother's son of the

vendors, contended that he fell within the expression 'other

co-sharers' in clause 'Fourthly' of section 15(1)(b) of the

Punjab pre-emption Act, 1913 and was, therefore, entitled to

exercise the right of pre-emption.

The courts below negatived his contention following the

decision of this Court in Jagdish & Ors. v. Nathi Mal Kej-

riwal & Ors.,[1986] 4 SCC 510.

In this appeal filed by special leave, the appellant

submitted that since the suit land belonged to more than one

co-sharer and had not been sold jointly by all the co-shar-

ers, he, as a co-sharer,

as entitled to claim the right of pre-emption under clause

'fourthly'of section 15(1)(b) and that in Jagdish's case,

the interpretation placed on the expression 'other co-shar-

ers' in section 15(1)(b) required reconsideration.

Allowing the appeal, this Court,

HELD: 1. According to section 15 of the Act before its

amendment in 1960, in the case of sale of share out of joint

land or property, the right of pre-emption was conferred

firstly on 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 persons not

included under firstly or secondly above, in order of suc-

cession, who but for such sale would be entitled, on death

of the

120

vendor, to inherit the land or property sold and fourthly,

in the cosharers. [126 E-F]

2. Section 15 after its amendment in 1960 provided that

where the sale is of a share out of the joint land or

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property and is not by all the co-sharers jointly, the right

of pre-emption was vested, first, in the sons or daughters

or son's son 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 brother or father's broth-

er's sons of the vendor or vendors; Fourthly, in the other

cosharers and Fifthly, in the tenants. [126 F-G]

3. The legislature desired to confer the right of pre-

emption on specified family members of the vendor or vendors

in the first three clauses of section 15(1)(b) and with a

view to covering all the remaining co-sharers not specifi-

cally mentioned in the preceding clauses it used the expres-

sion 'other co-sharers' in the fourth clause which was meant

to serve as a residuary clause to ensure that no cosharer is

left out. [126 G-127 A]

4. The expression 'other co-sharers' was used in the

fourth clause of the said provision to ensure that no co-

sharer was left out or omitted and not to deny the right to

kinsfolk co-sharers covered by the preceding clauses. If the

preceding clauses were not erased from the statute book as

unconstitutional the kinsfolk would have exercised the right

in the order of preference, for which no justification was

found. The relations in the first three clauses of section

15(1)(b) may or may not be co-sharers. The use of the ex-

pression 'other' in clause fourthly conveys the possibility

of their being cosharer also. [127 D-F]

5. The purport of Atam Prakash's case was that while

cosharers were entitled to pre-empt, the conferment of that

right on certain kinsfolk based on the rule of consanguinity

being a relic of the feudal past could not be tolerated.

This Court never intended to exclude any specified co-owners

from the scope of clause fourthly of section 15(1)(b) of the

Act. Once conferment of the right of preemption in favour of

co-sharers was considered to be a reasonable restriction on

the right to hold, acquire and dispose of property under

Article 19(1)(f), the same restriction was held to be valid

when tested on the touchstone of Articles 14 or 15 of the

Constitution. [127 B-D]

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6. What this Court disapproved as offensive to Articles

14 and 15 is the classification based on consanguinity and

not on co-ownership. The right of pre-emption to co-sharers

is held to be intra-vires the Constitution. Therefore, it is

difficult to hold that this Court intended to deny the right

of pre-emption of those kinsfolk even if they happened to be

co-sharers, That would clearly be discriminatory. [127 F-G]

7. The interpretation placed on clause 'fourthly' of

section 15(1)(b) of the Act by this court in Jagdish's case

was not correct on a proper construction of that clause

after the preceding clause were held to be unconstitutional,

the word 'other' preceding the word 'co-sharer' is rendered

redundant. [127 G]

Ram Sarup v. Munshi & Ors., [1963] 3 SCR 858 = AIR 1963

SC 553; Atam Prakash v. State of Haryana & Ors., [1986] 2

SCC 249 = AIR 1986 SC 859; Bhau Ram v.B. Baijnath Singh,

[1962] Suppl. SCR 724 = AIR 1962 SC 1476, referred to.

Jagdish & Ors. v. Nathi Mal Kejriwal & Ors., [1986] 4

SCC 510 'AIR 1987 SC 68, over-ruled.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4366 of

1991.

From the Judgment and Order dated 16.5.1988 of the

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Punjab & Haryana High Court in Regular Second Appeal No.

3648 of 1987.

R.K.Kapoor and Anis Ahmed Khan for the Appellant.

S.N.Mishra, L.K. Gupta, D.K. Yadav and D.K.Garg for the

Respondents.

The Judgment of the Court was delivered by

AHMADI, J. Delay condoned. Special leave granted.

The constitutional validity of section 15(1)(a) of the

Punjab Preemption Act, 1913 was challenged on the ground

that it offended the fundamental right guaranteed by Article

19(1)(f) m Ram Sarup v. Munshi & Ors., [1963] 3 SCR 858-AIR

1963 SC 553 A Constitution Bench of this Court upheld the

validity holding that there was no infringement of Article

19(1)(1') of the Constitution. Thereafter, a host of writ

petitions

122

were filed in this Court under Article 32 of the Constitu-

tion challenging the constitutional validity of section 15

on the ground that it infringed Articles 14 and 15 of the

Constitution. It may be mentioned that the mother State, the

State of Punjab, had repealed the Act in 1973 but it contin-

ued to be in force in the State of Haryana which prior to

1966 was a part of the State of Punjab. Section 15 of the

1913 Act, as it originally stood, underwent substantial

changes in 1960 and as amended read as under:

"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---

(a) where the sale is by a sole onwer--

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

Fourthly, in the tenant who holds under tenan-

cy of the vendor the land or properly sold or

a part thereof

Co) 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 son's son

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 brother 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-shar-

ers jointly--

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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's sons of the vendors

Fourthly, in the tenants, who hold under

tenancy of the vendors or any one

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of them the land or properly sold or a

part thereof.

(2) Notwithstanding anything con-

tained 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 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 lather, the right of pre-emption

shall vest--

First, in the son or daughter of such husband

of the female:

Secondly, in the husband's brother or hus-

band's brother's son of such female."

This Court in Atam Prakash v. State of Haryana & Ors,

[1986] 2 SCC 249 - AIR 1986 SC 859 held that the right of

pre-emption given to co-sharers as well as to a tenant can

be justified as they constitute a class by themselves. This

Court, therefore, upheld the constitutional validity of

clause 'fourthly of section 15(1)(a) clauses 'fourthly' and

'fifthly' of section 15(1)(b) and clause fourthly of section

15(1)(c) as valid and not infringing Articles 14 or 15 of

the Constitution This Court, however, did not find any

justification for the classification contained m section 15

which conferred a right of pre-emption on the kinsfolk. The

right of preemption based on consanguinity was held to be a

relic of the feudal past totally inconsistent with the

constitutional philosophy and scheme. It also found the list

of kinsfolk entitled to pre-emption as intrinsically defec-

tive and Self-contradictory. Finding no reasonable classifi-

cation it struck down

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clauses 'first', 'secondly' and 'thirdly' of section

15(1)(a), clauses 'first', 'secondly', and 'thirdly' of

section 15(1)(b) and clause 'first', 'secondly', and 'third-

ly' of section 15(1)(c) and the entire section 15(2) as

ultra vires the Constitution. The right of pre-emption in

regard to a co-sharer was upheld on the consideration that

if an outsider is introduced as a co-sharer in a property it

will make common management extremely difficult and destroy

the benefits of ownership in common. The right of pre-emp-

tion vested in a tenant was sustained on the ground that 1

and reform legislations in regard to the tiller of the soil

to obtain proprietary right in the soil with a view to

ensuring his continuance in possession of the land and

consequently of his livelihood without threat or disturbance

from the superior proprietor. The right of pre-emption

granted to a tenant was taken as another instance of a

legislation aimed at protecting the tenant's interest in the

land. Holding that the co-sharers and the tenants constitut-

ed a distinct class by themselves, the right of pre-emption

conferred on them was upheld as reasonable and in public

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interest. In taking this view strong reliance was placed on

the ratio of the decision of this court in Bhau Ram v.B.

Baijnath Singh, [1962] Suppl. SCR 724 - AIR 1962 SC 1476

wherein the vires of a provision of the Rewa State Pre-

emption Act which conferred a right of pre-emption based on

vicinage and the right of preemption conferred on co-sharers

and the Punjab Pre-emption Act, 1913 were challenged on the

ground of infraction of Article 19(1) (f) of the Constitu-

tion. In that case it was held that a right of pre-emption

by vicinage offended Article 19(1) (f) of the Constitution

but a similar right conferred on co-sharers was intra vires

Article 19(1)(1) of the Constitution. In that case also this

Court held that the right of pre-emption vested in co-shar-

ers was a reasonable restriction on the right to hold,

acquire or dispose of property conferred by Article 19(1)(1)

of the Constitution. In Atam Prakash s case, this Court,

therefore, held that what was said about the right of pre-

emption granted to co-sharers in relation to Article

19(1)(1) of the Constitution applied with equal force to

justify the classification in relation to Articles 14 and 15

of the Constitution.

After the surgery, section 15 underwent at the hands of

this Court removing the offending pans in Atarn Prakash's

case, what survives of section 15 is that in the case of

sale of agricultural land and village immovable property by

a sole owner, the tenant alone can exercise the right of

pre-emption. Where the sale is of a share out of joint land

or property, and is, not made by all the co-sharers jointly,

only the other co-sharers and the tenants can exercise the

right of pre-emption. Where the sale is of a land or proper-

ty owned jointly and is made by all the co-sharers jointly,

the right to pre-empt survives to the tenants only. Since in

the present case, we are concerned with sale by a single

co-sharer and not

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by all the co-sharers jointly, the remaining part of section

15(1)(b), with which we are concerned, reads as under:

"15(b). 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--

Co) where the sale is of a share out of joint

land or property and is not made by all the

co-sharers jointly--

XXX XXX XXX XXX

XXX XXX XXX XXX

XXX XXX XXX XXX

XXX XXX XXX XXX

XXX XXX XXX XXX

XXX XXX XXX XXX

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."

Counsel for the appellant submitted that since the suit

land belonged to more than one co-sharer and had not been

sold jointly by all the co-sharers, he, as a co-sharer, was

entitled to claim the right of pre-emption under clause

'fourthly' of section 15(1)(b). A similar question came up

before this Court in Jagdish & Ors. v. Nathi Mal Kejriwal &

0rs.,[1986] 4 SCC 510 - AIR 1987 SC 68 wherein a two-judge

Bench of this Court negatived the contention in the follow-

ing words:

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"In order to understand the meaning of the

words 'other co-sharers' in Section 15(1)(b)

we have to read the Act as it stood before the

decision in Atam Prakash 's case (AIR 1986 SC

859) (supra). It is seen that the expression

'other co-sharers' in clause 'Fourthly' of

Section 15(1)(b) of the Act refers to only

those co-sharers who do not fail under clause

'First' or 'Secondly' or 'Thirdly' of Section

15(1)(b) of the Act. Since the petitioners

admittedly fall either under clause 'First' or

under clause 'Secondly' of Section 15(1)(b)

of the Act they are clearly outside the scope

of clause 'Fourthly'. Therefore, the petition-

ers cannot claim the right of pre-emption

under clause 'Fourthly' We do not, therefore,

find any substance in this contention...... "

In the present case also the appellant seeks to exercise

the right of pre-emption as a co-sharer i.e. father's broth-

er's son of the vendors. His contention is that he falls

within the expression other co-sharers' in clause 'Fourthly'

of section 15(1)(b) and is, therefore, entitled to exercisee

the right of pre-emption conferred on him by that provision.

The courts below

126

have negatived this contention solely on the ground that it

cannot stand after the pronouncement of this Court in the

case of Jagdish (supra). Counsel for the appellant, however,

contended that the interpretation placed by the two-judge

Bench on the expression 'other co-sharers' in section

15(1)(b) requires reconsideration as it leads to certain

anomalous situation e.g. a sister who is a co-sharer can

claim pre-emption while her brother cannot or a daughter's

daughter of the vendor can claim pre-emption but not the

son.

The history of the Punjab Pre-emption law may be kept in

mind to understand the purport of clause 'Fourthly' of

section 15(1)(b) of the Act. Under the Punjab Pre-emption

Act, 1905, the corresponding provision, section 12, con-

ferred a right of pre-emption, in the case of a sale of a

share of such land or properly held jointly, firstly, in the

lineal discendents of the vendor in male line in order of

succession; secondly, in the co-sharers, if any, who are

agnates, in order of succession; thirdly, in the persons

described in sub-clause (a) i.e. in persons who but for such

sale would be entitled to inherit the properly in the event

of his or their decease, in order of succession and fourth-

ly, in the co-sharers jointly or severally. It will be

noticed that priority for the exercise of the right owes

statutorily fixed and even in the case of those falling

within the same class, the exercise of right was-regulated

by the use of the expression, 'in order of succession'. The

1905 Act was repealed and replaced by the 1913 Act. Accord-

ing to section 15 of this Act before its amendment in1960,

in the case of sale of a share out of joint land or proper-

ty, the right of preemption was conferred firstly on the

lineal descendents of the vendor in order of succession;

secondly, in the co-sharers, if any, who are agnates, in

order of succession; thirdly in persons not included under

firstly or secondly above, in order of succession, who but

for such sale would be entitled, on death of the vendor, to

inherit the land or property sold and fourthly, in the co-

sharers. Section 15 after its amendment in 1960 provided

that where the sale is of a share out of the joint land or

property and is not by all the co-sharers jointly, the right

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of pre-emption was vested, first, in the sons or daughters

or son's son 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 brother or father's broth-

er's sons of the vendor or vendors Fourthly, in the other

co-sharers and Fifthly n the tenants. Read in the context,

it becomes clear that the legislature desired to confer the

right of pre-emption on specified family members of the

vendor or vendors in the first three clauses of section

15(1)(b) and with a view to covering all the remaining co-

sharers not specifically mentioned the preceding clauses it

used the expression 'other co-sharers' in the fourth clause

which was meant to serve as a residuary clause to ensure

127

that, no co-sharer is left out. Since this Court found

certain intrinsic contradictions in the list of relatives

covered by the first three clauses, it saw no justification

for the classification contained in the said provision

conferring a right based on consanguinity and, therefore,

struck down those clauses:as discriminatory and violative of

Articles 14 and 15 of the Constitution. At the same time it

upheld the right conferred on co-sharers for reasons stated

earlier. Thus the purport of Atam Prakash's case (supra) was

that while co-sharers were entitled to pre-empt, the confer-

ment of that right on certain kinsfolk based on the rule of

consanguinity being a relic of the feudal past could not be

tolerated. This Court never intended to exclude any speci-

fied co-owners from the scope of clause fourthly of section

15(1)(b) of the Act. Once conferment of the right of pre-

emption in favour of co-sharers was considered to be a

reasonable restriction on the right to hold, acquire and

dispose of property under Article 19(1) (f), the same re-

striction was held to be valid when tested on the touchstone

of Articles 14 or 15 of the Constitution. We find it diffi-

cult to hold that the purport of the of Court's decision in

Attam Prakash's case was to deny the right of pre-emption to

those relative or relatives of the vendor or vendors who

were specified in the erstwhile first three clauses of

section 15(1)(b) even if they happen to be co-sharers. The

expression 'other co-sharers' was used in the fourth clause

of the said provision to ensure that no co-sharer was left

out or omitted and not to deny the right to kinstolk-coshar-

ers covered by the preceding clauses. If the preceding

clauses were not erased from the statute book as unconstitu-

tional the kinsfolk would have exercised the right in the

order of preference, for which no justification was found.

The relations in the first three clauses of section 15(1)(b)

may or may not be co-sharers, The use of the expression

'other' in clause fourthly conveys the possibility of their

being co-sharer also. What this Court disapproved as offen-

sive to Articles 14 and 15 is the classification based on

consanguinity and not on co-ownership. The right of pre-

emption to co-sharers is held to be intra-vires the Consti-

tution Therefore, it is difficult to hold that this Court

intended to deny the right of pre-emption of those kinsfolk

even if they happened to be co-sharers. That would clearly

be discriminatory. With respect, therefore, we find it

difficult to approve of the interpretation placed on clause

`fourthly'; of section 15(1)Co) of the Act by this Court in

Jagdish 's case. We think on a proper construction of that

clause after the preceding clauses were held to be unconsti-

tutional the word 'other' preceding. the word 'co-sharer' is

rendered redundant. We, therefore, do not approve the ratio

of Jagdish's case and overrule the same.

In the result the appeal succeeds, '[he decision of all

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the three courts below dismissing the appellant's suit is

set aside and the suit is decreed.

128

We direct that on the appellant-plaintiff depositing the

entire amount of sale price together with the amount needed

for the stamp duty for the execution of the conveyance in

his favour within three months from today, the purchaser-

respondent No. 1 shah within one month of such deposit

execute a conveyance of the land, i.e. his share therein

derived from his vendors, in favour of the appellant and

shall deliver possession thereof to the appellant. If the

respondent No. 1 fails to do so, the Court shall appoint a

Commissioner who shall execute the conveyance on behalf of

the respondent No. 1 and the Court shall put the appellant

in possession of the suit land. There will be no order as to

costs throughout.

V.P.R. Appeal

allowed.

129