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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] 121     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--               123               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 124 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 125 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