http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: KARNAIL SINGH

       Vs.

RESPONDENT: ANIL KUMAR AND ANOTHER

DATE OF JUDGMENT10/01/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MANOHAR SUJATA V. (J)

CITATION:  1995 SCC  (2)   9        JT 1995 (2)   516  1995 SCALE  (1)141

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   This  appeal by special leave arises from the  judgment of the High Court of Punjab and Haryana dated 22-1-1985 made in RSA No. 3126 of 1984.  The facts not in dispute are  that Anil Kumar and the vendor of the appellant Neeru are brother and  sister.   Neeru sold the property in  dispute  to  ’the appellant  by a registered sale deed.  Anil Kumar  laid  the suit  for preemption under Section 15(1)(b) clause  secondly of the Punjab Pre-emption Act, 1913, (for short "the  Act"). The trial court decreed the suit and it is confirmed by  the appellate court.  The second appeal was dismissed in limine. By  then,  this Court in Atam Prakash v. State  of  Haryana1 declared  sub-clauses (i) to (iii) of clause (1) of  Section 15(1)(b)  of  the  Act as amended in  1960  as  ultra  vires Articles  14 and 15 of the  Constitution..Consequently,  the claim  of the respondent on the basis of clause secondly  of Section  15(1)(a)  having been declared to be  ultra  vires, this Court granted leave. 2.In Atam Prakash case1 this Court upheld the constitutional validity of clause  fourthly which postulates entitlement of pre-emption by "other co- +From     the  Judgment  and Order dated  22-1-1985  of  the Punjab & Haryana High Court in R.S.A. No. 3126 of 1984 1 (1986) 2 SCC 249 10 sharers".  Subsequently, the questions whether the relations covered  in  clauses (i) to (iii) of Section 15(1)  are  co- sharers under clause fourthly and whether they are  entitled to the benefit of the pre-emption, were referred to a  Bench of  three  Judges.  In Bhikha Ram v. Ram Sarup2  this  Court considered  the controversy and held that Section  15  after the  amendment in 1960 provided that where the sale is of  a share out of the joint property and is not by the co-sharers jointly, the right of pre-emption was vested fourthly in the "   other co-sharers".  It was further held that this  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

in  Atam  Prakash  case1  did  not  intend  to  exclude  any specified  co-sharer  from the scope of clause  fourthly  of Section 15(1)(b) of the Act.  It was concluded thus: (SCC p. 326, para 4)               "We find it difficult to hold that the purport               of this Court’s decision in Atam Prakash case1               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 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 expression ’other’               in clause fourthly conveys the possibility  of               their  being co-sharer also.  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  ultra               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     b e               discriminatory." 3.   In view of the above declaration of law by this  Court, it  is  now  concluded  that even  relations  who  would  be otherwise not entitled under clauses (i) to (iii) of Section 15(1)(b)  of  the Act would also become  ’co-sharers’  under clause fourthly.  Being not a party to the sale  transaction of  joint property, they are entitled to claim  pre-emption. It is not in dispute, as stated earlier, that the respondent Anil Kumar was not a party to the sale transaction  executed by his sister Neeru.  Therefore, he would be other co-sharer in  clause fourthly of sub-section (1)(b) of Section  15  of the  Act.  As a consequence, he is entitled to  pre-emption. Shri   K.K.  Mohan,  learned  counsel  for  the   appellant, contended that there is no evidence to show that  respondent Anil Kumar is a co-sharer.  On the other hand, the  recitals in  the  sale deed shows that there was  a  prior  partition under  which  Neeru  had obtained the  property  under  sale towards her share and therefor Anil Kumar cannot be said  to be a co-sharer.  The learned counsel for the respondents has produced before us a document of the year 1974-75 which 2 (1992) 1 SCC 319 11 was already marked in the trial court which would show  that they are the co-owners.  In this view, we do not think  that we  will  be  justified  to remit  the  matter  for  further evidence. 4.The  appeal is accordingly dismissed though for  different reasons.  No costs. 12