http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  342 of 2008

PETITIONER: Labh Singh & Ors.

RESPONDENT: Bachan Singh

DATE OF JUDGMENT: 11/01/2008

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T

(Arising out of S.L.P. (C) No.3100 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Heard learned counsel for the parties.    

2.      Leave granted.

3.      Challenge in this appeal is to the judgment dated  29.10.2004 passed by a learned Single Judge of the Punjab  and Haryana High Court in a Second Appeal filed under  Section 100 of the Code of Civil Procedure, 1908 (in short  \021CPC\022).  The Second Appeal before the High Court was filed by  the plaintiff who had succeeded before the Trial Court; but the  First Appellate Court set aside the judgment and decree  passed.  In the Second Appeal, the judgment and decree of the  Trial Court was restored and those of the First Appellate Court  were set aside.  The respondent as plaintiff filed a suit for pre- emption.           

4.      Background facts in a nutshell are as follows:

       The plaintiff filed suit for possession alleging therein that  the vendor Singh Ram is jointly recorded as owner of half  share of land measuring 24 kanals situated in village  Fatehbad Tehsil Naraingarh.  The plaintiff and vendor Singh  Ram are related to each other as the plaintiff is fourth degree  collector of the vendor.  Singh Ram had sold half of 24 kanal  of land by way of registered sale deed dated 2.6.1979  registered on 29.6.1979 for an ostensible consideration of  Rs.30,000/-     

       The plaintiff inter alia claimed superior right of pre- emption as a co-sharer with the vendor in the land in dispute  under Section 15(1) of Punjab Pre-emption Act, 1913  (hereinafter referred to as the \021Act\022).  It was the case of  the  defendant that Singh Ram was owner of only 3/4th share and  his sister was owner of 1/4th share and both of them were  jointly owners of half of the land.  Singh Ram alone has half  share of land measuring 24 kanals, but it was asserted that  the sale deed was by Singh Ram and Angrezo who are owners

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

of the land.  In replication, it was pointed out that the sale is  by Singh Ram for himself and as Mukhtiar of Smt. Angrezo.   Therefore, the sale is pre-emptible.             

5.      The Trial Court decreed the suit on the ground that the  plaintiff is a co-sharer and has thus superior right of pre- emption.  The Trial Court negatived the argument raised by  the defendant that the sale is by a female and thus governed  by the provisions of sub-section (2) of Section 15 of the Act.   However, in the appeal filed by defendant, the judgment and  the decree passed by Trial Court were set aside and it was  held that vendee has improved his status as that of a co- sharer in view of the fact that the sale to the extent of share of  Angrezo is not pre-emptible being not governed by the  provisions of Section 15(2) of the Act and thus the plaintiff  does not have superior right of pre-emption.

6.      In Second Appeal, the following questions were  formulated for consideration:

1.      Whether the plaintiff has superior right of pre- emption as co-sharer? 2.      Whether the suit for pre-emption can be dismissed  for not disclosing the complete fact regarding the  sale by Angrezo, a female vendor?

7.      The High Court was of the view that right of pre-emptor  cannot be defeated by virtue of amendment in Section 15 of  the Act taking away right on the basis of co-sharer.  

8.      In support of the appeal, learned counsel for the  appellants submitted that the High Court misconstrued the  decision of this Court in Atam Prakash  v. State of Haryana  and Ors. (1986 (2) SCC 249).

9.      It was further submitted that the view was re-iterated in  Mahant Braham Dass Singh Pannu v. Om Prakash Chaudhary  (1996 (7) SCC 97).

10.     In Atam Prakash case (supra) it was inter alia observed  as follows:-                 \023We are thus unable to find any  justification for the classification contained in  Section 15 of the Punjab Pre-emption Act of the  Kinsfolk entitled to pre-emption. The right of pre- emption based on consanguinity is a relic of the  feudal past. It is totally inconsistent with the  constitutional scheme. It is inconsistent with  modern ideas. The reason which justified its  recognition quarter of a century ago namely, the  preservation of the integrity of rural society, the  unity of family life and the agnatic theory of  succession are today irrelevant. The list of kinsfolk  mentioned as entitled to pre-emption is intrinsically  defective and self-contradictory. There is therefore  no reasonable classification and clauses \023First\024,  \021Secondly\024 and \021thirdly\024 of Section 15(1)(a). \023First\024,  \023secondly\024, and \023thirdly\024 of Section 15(1)(b), clauses  \023First\024, \023secondly\024 and \023thirdly\024 of Section 15 (1)(c)  and the whole of Section 15(2) are, therefore,  declared ultra-vires the constitution.

       We are told that in some cases suits are  pending in various courts and, where decrees have  been passed, appeals are pending in appellate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

courts. Such suits and appeals will now be disposed  of in accordance with the declaration granted by us.  We are told that there are a few cases where suits  have been decreed and the decrees have become  final, no appeals having been filed against those  decrees. The decrees will be binding inter-parties  and the declaration granted by us will be of no avail  to the parties thereto.\024

11.     In Mahant Braham Dass\022s case (supra) it was noted as  follows:         \023The question then is whether he is a co- sharer. It is seen that at one time he was co-sharer  but subsequently, brothers effected by mutual  consent partition and the vendee/appellant\022s vendor  Jai Singh was in separate possession and  enjoyment of the property. Therefore, the mere  mention in para 3 that he is a co-sharer is not  independent of the right to vicinage. It would appear  that the pleading was made on the basis that the  respondent is not the real brother of the vendor of  the appellant and on the basis thereof he claimed to  be the co-sharer. Therefore, Mr. G.K. Bansal,  learned counsel for the respondent, sought to place  reliance on the judgment of this Court in Bhikha  Ram v. Ram Sarup (1992 (1) SCC 319) where a  Bench of three Judges of this Court held that a co- sharer has a right of pre-emption under clause  \021Fourthly\022 of Section 15(1)(b) which was not declared  ultra vires in Atam Prakash v. State of Haryana  (1986(2) SCC 249) and, therefore, he was entitled to  seek pre-emption. It is true that independent of  right of kinship, if there is any right as co-sharer, in  other words, on the date when the alienation was  made if the vendor of the appellant had remained in  joint possession and enjoyment without any  partition, he would become a co-sharer with the  respondent independent of the right of kinship. But  if the joint enjoyment is by virtue of the unity in  possession and enjoyment as members of the joint  family property then it is not an independent right  of co-sharer but as a member of the joint family or  coparcener.\024  

12.     Learned counsel for the respondent on the other hand  supported the judgment of the High Court.         

13.     As was noted in Atam Prakash Case (supra), the decision  was applicable to pending suits and appeals. As noted above,  the view was re-iterated in Mahant Braham Dass case (supra).  

14.     A few factual aspects as evident from the order of the  trial Court which projects the case of the parties need to be  noted:          \023But learned counsel for the defendants has  argued that since it has been stated by the plaintiff  that he is cultivating the land separately, so the  plaintiff is not a co-sharer in the suit land. But this  arguments of the learned counsel for the  defendants, is not maintainable because the  plaintiff has stated that the property in dispute was  a joint property with the vendors and himself. So,  on this ground the plaintiff has superior right of  pre-emption over the suit land\024.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

        15.     In view of what has been stated by this Court in Atam  Prakash Case (supra) and Mahant Braham Dass case (supra)  the inevitable result is that the appeal deserves to succeed  which we direct. The judgment of the High Court restoring the  judgment and decree of the trial Court is set aside. The first  Appellate Court had taken the correct view. It is stated that  certain amounts have been deposited by the respondent with  the trial Court. The said Court shall permit withdrawal of the  amount deposited by the respondent on a proper application  being made. 16.     The appeal is allowed. There will be no order as to costs.