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PETITIONER: CHANAN SINGH & ANOTHER

       Vs.

RESPONDENT: JAI KAUR

DATE OF JUDGMENT: 11/08/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. (CJ) RAMASWAMI, V.

CITATION:  1970 AIR  349            1970 SCR  (1) 803  1969 SCC  (2) 429  CITATOR INFO :  D          1976 SC2363  (11)  R          1986 SC1760  (35)

ACT:     Punjab   Pre-emption  Act,  1913,   s.   15(2)(b)--Scope of--Amendment by Amendment Act of 1964--if has retrospective operation.

HEADNOTE:  S,  the  owner of some land in a village  in  Punjab,  died leaving a widow and the respondent, his daughter by  another wife.  The widow sold a part of the land in February 1958 to the  appellants, whereupon the respondent filed a  suit  for possession by pre-emption of the land sold. The trial  court decreed the suit and a first appeal was dismissed.  A single bench  of  the High Court allowed the second appeal  on  the view that the respondent not being the widow’s daughter, had no right  of  pre-emption  under s. 15(2) of the Punjab Pre- emption  Act,  1913, as amended by  the  Punjab  Pre-emption Amendment  Act,  1960.   However, a  division  bench  in   a Letters  Patent appeal, relying on an amendment made by  the PUnjab  Preemption  Amendment  Act,  1964  in  s.  15(2)(b), reversed  the judgment of the single bench and  decreed  the suit.     It  was contended in appeal to this Court that there  is no  indication  in the Amendment Act of 1964 that it  is  to have  retrospective operation and the amendment made  by  it should be deemed to be only prospective.     HELD:  The  Amendment  Act  of  1964  was  merely  of  a clarificatory or declaratory nature.  Even in the absence of words which were inserted by the Amendment Act of 1964 under s. 15(2)(b) the only possible interpretation and meaning  of the  words  "in the son or daughter of  such  female"  could have  reference  to and cover the son or  daughter  of   the husband  of the ’female.  The entire scheme of s.  15(2)  is that  the  right  of pre-emption has been  confined  to  the issues  of   the last male  holder from  whom  the  property which has been sold came by inheritance. [805 H]     Under  s. 15(2)(b) the right of pre-emption  would  vest firstly in the son or daughter of the husband of the  female

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meaning thereby either her own off-springs from the  husband whom  she  had  succeeded or the son  or  daughter  of  that husband even from another wife. [806 G]     In  the  present  case the respondent  was  entitled  to exercise  her right of pre-emption under paragraph First  of clause  (b) of s. 15(2) even before the Amendment  of  1964. Whatever doubts existed they were removed by that Act  which must be given retrospective operation. [807 E-F]     Ram Sarup v. Munshi & Ors, [1963] 3 S.C.R. 858 and  Mota Singh v. Prem Parkash Kaur & Ors., I.L.R. [1961] Punj.  614, 627; referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:  Civil Appeal No. 774  of 1966.     Appeal  by  special leave from the judgment  and  decree dated  August 31, 1965 of the Punjab High Court in   Letters Patent Appeal No. 91 of 1961. Harbans Singh, for the appellant. 804 Bishan Narain and S.K. Mehta, for the respondent. The Judgment of the Court was delivered by Grover,  J.   This  is an appeal by  special  leave  from  a judgment  of  a  division bench. of the  Punjab  High  Court decreeing the suit filed by the respondent for possession of certain land by preemption.     The  facts  may be shortly stated: Santa Singh  was  the owner of some land in village Samadh Bhai, tehsil Moga.   He died  leaving a widow Smt. Sobhi.  He also left  a  daughter Smt. Jai Kaur from his other wife.  On February 3, 1958 Smt. Sobhi  sold 73 kanals 14 marlas of land to  the  appellants, the sale consideration mentioned in the sale deed being  Rs. 8,000/-.  Smt. Jai Kaur filed a suit for possession by  pre- emption  of  the  land which had been sold  by  Smt.  Sobhi. According  to  her a consideration of Rs. 4,000/-  only  had been  paid by the vendee.  The trial court decreed the  suit in  May 1959 granting a decree for possession on payment  of Rs.  6,500/-  together with costs.   The  second  Additional Judge to whom an appeal was taken dismissed it.  In the High Court  the learned Single Judge took the view that Smt.  Jai Kaur not being the daughter of the vendor Smt. Sobhi had  no right  of  pre-emption  under s. 15(2) of  the  Punjab  Pre- emption  Act,  1913 ’as amended by  the  Punjab  Pre-emption Amendment Act, 1960.  The suit was dismissed.  Smt. Jai Kaur filed an appeal under clause 10 of the Letters Patent of the High  Court.  Relying on an amendment made by   the   Punjab Pre-emption Amendment  Act  1964  in the first paragraph  of clause (b) of sub-s. (2) of s. 15 of the Punjab  Pre-emption Act, hereinafter called the Act, the Division Bench reversed the judgment of the Single Judge and decreed the plaintiff’s suit.     The  relevant  provisions  of the  statute  may  now  be noticed together with the amendments made in 1960 and  1964. Section  15  of  the  Act was substituted by  s.  4  of  the Amendment  Act, 1960. According to the  substituted  section the right of pre-emption in respect of agricultural land and village immovable property shall vest thus :--               (1)                   (2) Notwithstanding  anything contained in               sub-section (1)--                   (a) where the sale is by a female of  land               or  property  to  which  she  h,as   succeeded               through  her father or brother or the sale  in

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             respect  of  such land or property is  by  the               scan or daughter of               805               such  female, after inheritance, the fight  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’s brother or the               mother’s  brother’s  sons  of  the  vendor  or               vendors;" By the Amendment Act 1964 in the first paragraph of s. 15(2) (b) between the words "such" and "female" the words "husband of  the"  were  inserted.  The result  was  that  after  the amendment the portion of clause (b) relevant for our purpose was to read as follows:       "FIRST, in the son or daughter of such husband of  the female." Now if the Amendment Act of 1964 could be regarded as having retrospective operation so as to affect pending  proceedings there   can be no dispute that the judgment of the  division bench was light and must be affirmed.  The contention  which has  been raised on behalf of the appellants is that.  there is no indication in the Amendment Act of 1964 that it was to have  retrospective operation and therefore  the  ’amendment made by it should be deemed to be only prospective.  It  may be mentioned that by s. 6 of the Amendment Act of 1960 a new section 31 was inserted in the Act.  That section  provided, "no  court  shall pass a decree in a  suit  for  pre-emption whether instituted be,fore or after the commencement of  the Punjab   Pre-emption   Amendment  Act  of  1960   which   is inconsistent  with the provisions of the said Act."  in  Ram Sarup v. Munshi & Ors.(1) this Court held that the  language used  in s. 31 was comprehensive enough so as to require  an appellate court to give effect to the substantive provisions of  the  Amending Act whether the appeal before it  was  one against  a decree granting pre-emption or one refusing  that relief. Although s. 31 was inserted in the Act for all times the  phraseology  employed therein does not  show  that  its language  was  meant  to cover those amendments which  would be  made subsequent to the Amendment Act of 1960.  The  word "said"  can  have  reference  in the  context  only  to  the enactment  of  1960  and  to  no  other.  it  would  not  be legitimate for the  courts to give  an  extended effect to a provision  used and words employed warranted such  a  course being followed.  That does not appear to be the case here.     It  appears  to us that the Amendment Act  of  1964  was merely  of a clarificatory or declaratory nature.   Even  in the  absence  of   the  words which  were  inserted  by  the Amendment  Act  of  1964 in s. 15(2)(b)  the  only  possible interpretation and meaning of (1) [1963] 3 S.C.R. 858. 806 the  words  "in the son or daughter of such  female"   could have  reference  to and cover the sort or  daughter  of  the husband  of the female.  The entire scheme of sub-s. (2)  of s. 15 is that the right of pre-emption has been confined  to the  issues of the last male holder from whom  the  property which has been sold came by inheritance.  Looking at  clause (a) of sub-s. (2) where the properly which has been sold has come to the female from her ,father or brother by succession the  right of pre-emption has been given to. her brother  or brother’s  son.  As has been observed in Mota Singh v.  Prem Parkash  Kaur & Ors.(1), the  predominant  idea seems to  be that  the property must not go outside the line of the  last

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male  holder and the right has been given to his male  linea descendants.   Where the sale is by the son or the  daughter of such female the right is given to the mother’s brother or their  sons.  The principle which has been kept in  view  is that  the  person  on  whom  the  right  of  pre-emption  is conferred must be a male lineal descendant of the last  male holder  of  the property sold.  This  is so with  regard  to clause  (a)  of sub-s. (2). Coming to clause (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 same from his father the right  of pre-emption is to vest firstly in  the  son  or daughter  of such  female  and  secondly  in  the  husband’s  brother  or husband’s  brother’s son of such female.  Now  if  the   son or  daughter of the female who has sold the  property  could refer  to her son or daughter from a husband other than  the one  from  whom the property devolved on her,  it  would  be contrary  to  the  scheme and purpose of  sub-s.  (2)  which essentially  is  to  vest the right of  pre-emption  in  the lineal  descendants of the  last male holder.  Similarly  it is  unthinkable  that  a  husband’s  brother  or   husband’s brother’s  son should have reference to a  husband  to  whom the   property   never belonged.  In other  words  it  could never  be  intended  that if a female  has  had  a  previous husband  who has either died or with whom the  marriage  has been dissolved and the female has remarried and succeeded to the  property   of  her second husband the  brother  or  the brother’s  son  of her previous husband should  be  able  to claim  the  right  of  pre-emption  when  they  had  nothing whatsoever  to do with the property sought to be  preempted. It  would  follow  that  under  clause  (b)  the  right   of preemption would vest firstly in the son or daughter of  the husband  of the female meaning thereby either her  own  off- spring  ,from the husband whom she has succeeded or the  son or daughter of that husband even from another wife.     If  the  above discussion is kept in view  there  is  no difficulty  in attributing a retroactive  intention  to  the legislature   when  the Amendment Act of 1964  was  enacted. It is well settled that if a (1) I.E.R. [1961] Punj. 614. 627. 807 statute  is  curative or merely declares  the  previous  law retroactive  operation would be more rightly ascribed to  it than  the  legislation which may prejudicially  affect  past rights  and transactions.  We are in entire  agreement  with the following view expressed in a recent full bench decision of  the  Punjab High Court in Moti Ram v. Bakhwant  Singh  & Ors.   (1)   in  which  a  similar  point   came   up   ,for consideration:                     "A close analysis of paragraphs  (First)               and  (Secondly) of clause (b)  of  sub-section               (2)   of  section  15  before  the   amendment               introduced  by  Punjab Act 13  of  1964  would               demonstrate  that  a son of the husband  of  a               female  vendor though not born from  her  womb               would  be  entitled to  preempt,  particularly               when the husband’s brother and even the son of               the  husband’s  brother  of  that  female  are               accorded   the   right  of   preemption.    To               reiterate, the right of preemption is accorded               manifestly on the principle of  consanguinity,               the property of the female vendor ’being  that               of  her husband, and there is no  reason   why               the step-son should be excluded and the nephew               of  the husband included.  From this alone  it

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             must  be  inferred that  the  Legislature  had               intended    to   include   a   step-son    and               consequently retrospective operation had to be               given   to   the  amending  Act  as   such   a               construction appears to be in consonance  ’and               harmony with the purpose of the Act". The  result, therefore, is that the respondent was  entitled to. exercise, her right of preemption under paragraph  First of cl. (b) of sub-s. (2) of s. 15 even before the  amendment made in 1964.  At any rate whatever doubts existed they were removed  by  the Amendment Act of 1964 which must  be  given retrospective operation. The  appeal  consequently fails  and it  is  dismissed  with coats. R.K.P.S.                           Appeal dismissed (1) I.L.R.[19681] Punjab 104, 120. 808