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PETITIONER: JAGDISH & ORS.

       Vs.

RESPONDENT: NATHI MAL KEJRIWAL & ORS.

DATE OF JUDGMENT24/10/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)

CITATION:  1987 AIR   68            1987 SCR  (1)  68  1986 SCC  (4) 510        JT 1986   697  1986 SCALE  (2)679  CITATOR INFO :  R          1988 SC2141  (8)  O          1992 SC 207  (3,4)

ACT:     Punjab Pre-emption Act, 1913, s. 15(1)(b)clause ’Fourth- ly’-’Other  Co-sharers’--Interpretation  of--Land  belonging to  joint  family--Sold--Non-alienating  co-sharers--Whether entitled to claim right of pre-emption.

HEADNOTE:     Respondent  Nos.  5 to 7 were joint owners of  the  suit land.  They sold it to respondent nos. 1 to 4  on  25.10.71. The petitioners, sous and nephews of the vendors, instituted a  suit before the sub-Judge, Palwal for possession  of  the suit land on payment of the sale consideration on the ground that  they were entitled to the right of the pre-emption  in respect  of  the suit land either under clause  "First",  or Secondly, of s. I5(1)(a) or under clause ’First’ or ’Second- ly’ of s. 15(1)(b) of the Punjab Pre-emption Act 1913 as  in force  in the SLate of Haryana. The Sub- Judge  decreed  the suit  for possession. The appeal of Respondent Nos. 1  to  4 against  the  aforesaid order having been dismissed  by  the District  Judge, they filed a second appeal before the  High Court.     During  the pendency of the second appeal,  the  Supreme Court  delivered  its judgment in Atam Prakash v.  State  of Haryana & Ors., [1986] 2 SCC 249. The High Court allowed the second  appeal and dismissed the suit since  the  provisions under which the petitioners claimed the fight of pre-emption had  been  declared void by the Supreme Court in  Atam  Pra- kash’s case.     Being  aggrieved by the judgment of the High Court,  the petitioners  in  the special leave petition  contended  that since the suit land belonged to the joint family and it  had not  been  sold by all the sharers, they  were  entitled  to claim  the  right of pre-emption under dause  ’Fourtidy’  of s.15(1)(b)  of the Act because they happened to be the  non- alienating co-sharers. Dismissing the petition,     HELD:  The  expression  ’other  co-sharers’  in   clause ’Fourthly’  of s. 15(1)(b) of the Act refers to  only  those

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co-sharers who do not fall 69 under   clause  ’First’  or  ’Secondly’  or   ’Thirdly’   of s.15(1)(b) of the Act. Since the petitioners admittedly fail either under clause ’First’ or under clause ’Secondly’ of s. 15(1)(b)  of the Act, they are clearly outside the scope  of clause  ’Fourthly’. Therefore, the petitioners cannot  claim the right of pre-emption under clause ’Fourthly’. [71D-E]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 11015 of 1986.     From  the  Judgment and Order dated 2.5.86 of  the  High Court  of Punjab & Haryana at Chandigarh in  Regular  Second Appeal No. 1504 of 1977. R.K. Jain, D.S. Mehra and Ms. Abha Jain for the Petitioners.     K.K.  Jain,  P. Dayal, Shiv Kumar and  A.D.  Sanger  for Respondent No. 1 The Judgment of the Court was delivered by     VENKATARAMIAH, J- Respondents 5 to 7--Aji Ram, .Tota Ram and  Hari Chand are sons of one Kesaria. The suit  land  be- longed  jointly to Respondents 5 to 7. They sold it  to  Re- spondents 1 to 4Nathi Mal Kejriwal, Radhey Shayam  Kejriwal, Smt. Daropdi Devi and Nagar Mal Kejriwal, who were strangers to  their  family for a consideration of Rs.33,000  under  a sale  deed  registered on 25.10.1971. The  petitioners,  who claimed  themselves to be the sons and nephews of  the  ven- dors, instituted a suit in Civil Suit No. 466 of 1972 on the file  of the Sub-Judge, 1st Class, Palwal for possession  of the  suit  land on payment of Rs.33,000 claiming  that  they were entitled to the right of pre-emption in respect of  the suit  land  either  under clause ’First’  or  ’Secondly’  of Section 15(1)(a) of the Punjab Pre-emption Act, 1913  (here- inafter  referred to as ’the Act’) as in force in the  State of Haryana or under clause ’First’ or ’Secondly’ of  Section 15(1)(b)  of the Act. The learned Sub-Judge upheld the  plea of  the petitioners and decreed the suit for  possession  of the  suit land against Respondents 1 to 4 who had  purchased the suit land as well as against Respondents 5 to 7 who  had sold  it  subject  to  the  petitioners  paying  a  sum   of Rs.36,642’ which included the consideration of Rs.33,000 and interest  thereon at 8 per cent per annum. The learned  Sub- Judge further directed the petitioners to deposit the sum of Rs.36,642 minus the zare punjam amount on or before 3rd May, 1976  and that on their failure to deposit the said  amount, he directed that the suit should be deemed to have been 70 dismissed  with  costs.  Aggrieved by the  judgment  of  the learned SubJudge, Respondents 1 to 4 filed an appeal  before the District Judge, Gurgaon in Civil Appeal No. 69 of  1976. The  appeal  was  dismissed. Against  the  judgment  of  the learned  District Judge, Respondents 1 to 4 filed  a  second appeal before the High Court of Punjab and Haryana in  Regu- lar  Second Appeal No. 1504 of 1977. That second appeal  was taken  up  for hearing on 2nd May, 1986. By that  time  this Court had delivered its judgment in Atam Prakash v. State of Haryana  and Others, [1986] 2 S.C.C. 249  declaring  clauses ’First’,  ’Secondly’  and  ’Thirdly’  of  Section  15(1)(a), clauses   ’First’,  ’Secondly’  and  ’Thirdly’  of   Section 15(1)(b),  clauses ’First, ’Secondly’ and ’Thirdly’ of  Sec- tion  15(1)(c) and the whole of Section 15(2) of the Act  as ultra  vires the Constitution. Following the  said  decision the  High Court allowed the second appeal and dismissed  the

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suit  since  the  provisions  under  which  the  petitioners claimed  the right of pre-emption had been declared void  by this Court. This petition is filed praying for special leave to  prefer an appeal against the judgment of the High  Court in the second appeal.     At  the  hearing  of this  Special  Leave  Petition  the learned  counsel  for the petitioners  contended  that  even though  the petitioners were not able to claim the right  of pre-emption under clauses ’First’, and ’Secondly’ of Section 15(1)(a)  or  clauses  ’First’  and  ’Secondly’  of  Section 15(1)(b)  by  reason of the decision in the  Atam  Prakash’s case  (supra) they were entitled to claim the right of  pre- emption  under clause ’Fourthly’ in Section 15(1)(b) of  the Act. Section 15(1)(b) reads thus:               "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 shah vest--               (               a               ) ............................................               (b) 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  sons  or               daughters’ sons of the vendor or vendors;               Secondly, in the brothers or brother’s sons of               the vendor or vendors;--               71               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; ........................................................"     It is argued by the learned counsel for the  petitioners that since the suit land belonged to the joint family and it had  not been sold by all the co-sharers they were  entitled to claim the right of pre-emption under clause ’Fourthly’ of Section 15(1)(b) of the Act because they happened to be  the non-alienating  co-sharers-  Although there is  no  specific finding  that  the property is the joint  property  in  this case, we shall assume for purposes of this judgment that the suit  land  was joint property. In order to  understand  the meaning of the’ words ’other co-sharers’ in Section 15(1)(b) we  have to read of the Act as it stood before the  decision in Atam Prakash’s case (supra). It is seen that the  expres- sion  ’other  co-sharers’ in clause  ’Fourthly’  of  Section 15(1)(b)  of the Act refers to only those co-sharers who  do not fall under clause ’First’ or ’Secondly’ or ’Thirdly’  of Section 15(1)(b) of the Act. Since the petitioners admitted- ly fall either under clause ’First’ or under clause ’Second- ly’ of Section 15(1)(b) of the Act they are clearly  outside the  scope of clause ’Fourthly’. Therefore, the  petitioners cannot claim the right of pre-emption under clause  ’Fourth- ly’.  We do not, therefore, find any substance in this  con- tention  which was urged for the first time before the  High Court-  The  suit was, therefore, rightly dismissed  by  the High  Court  holding  that the petitioners  were  no  longer entitled to any relief under the Act. This petition,  there- fore, fails and it is dismissed. M.L.A.                                       Petition   dis- missed.

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