v.
JANUARY 10, 1995
Punjab Pre-emption Act, 1913-Clause (iv) of s.15 (l)(b)-f're- emption-Sister sold her share out of joint family property-Brother entitled to pre-emption as 11other co-sharer11 •
Sister of respondent sold her share out of joint property to appellant C by registered sale deed dated January 22, 1985. Respondent filed suit for pre-emption under clause (ii) of Section 15(1)(b) of the Pubjab Pre-emp· tion Act, 1913. Trial Court decreed the suit. Appeal and second appeal were dismissed.
Dismissing the appeals for different reasons, this Court
HELD : 1.1. Respondent entitled to claim pre-emption as be was not a party to the sale transaction executed by sister and be was "other co-sharer" as envisaged in 15(1)(b)(fourthly) of the Punjab Pre-emption Act, 1913. [166-B] E
1.2. Clauses (I) to (Ill) of Section lS(l)(b) as amended in 1980 were declared u/tra-vires Articles 14 and 15 of the Constitution but as validity of 15(1)(b)(lv) was upheld it entitled those relations covered under Section 15(1)(b)(I) to (Ill) who are "co-sb!""'rs" to per-emption rights. [167-B-D]
Atam Prakash v. State of Haryana, (1986] 2 SCC 249 andBhikha Ram v. Ram Sarup, (1992] 1 SCC 319, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1569 of 1986.
From the Judgment and Order dated 22.1.85 of the Punjab & Haryana High Court in R.SA. No. 3126 of 1984.
K.K. Mohan for the Appellant.
D.V. Sehgal and Prem Malhotra for the Respondents. H
166 SUPREME COURT REPORTS [1995) 1 S.C.R. A The following Order of the Court was delivered :
This appeal by special leave arises from the judgment of the High
Court of Punjab & Haryana dated January 22, 1985 made in RSA 3126/84.
The facts not in dispute are that Anil Kumar and the vendor of the B 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
pre-emption under s.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 Haryana, (1986] 2 C SCC 249, declared Clauses (i) to (iii) of Clause (1) of s.15(1)(b) of the Act
as amended in 1960 as ultra vires of Articles 14 and 15 of the Constitution.
Consequently, the claim of the respondent on the basis of clause secondly
of s.15(1)(a) having been declared to be ultra vires, this court granted leave.
D In Atam Prakash's case, this court upheld the constitutional validity
of Clause fourthly which postulates entitlement of pre-emption by "other
co-sharers". Subsequently, the questions whether the relations covered in
Clauses (i) to (iii) of s.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 Sarup, [1992] 1 SCC E 319, this Court considered the controversy and held that s.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 in Atam Prakash's case did not intend to exclude any specified p co-sharer from the scope of clause fourthly of s.15(1){b) of the Act. It was
concluded thus :-
''We find it difficult to hold that the purport of this Court's decision
inAtam Prakash case was to deny the right of pre-emption to those
relative or relative of the vendor or vendors who were specified in G the erstwhile first three clauses of s.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 would have
exercised the right in the order of preference, for which no jusH tification was found. The relations in the first three clauses of
s.15(1)(9) may or may not be co-sharers. The use of the expression A
'other' in clause fourthly conveys the possibility of their being
co-sharer also. What this Court disapproved as offensive to Ar-
ticles 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 B
those kinsfolk even if they happened to be co-shares. That would
clearly be discriminatory".
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 C clauses (i) to (iii) of s.15(1)(b) of the Act would also become 'co-sh.rrers' 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-s. (l)(b) of s.15 of the Act. As a D 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, therefore, E 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 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.
The appeal is accordingly dismissed though for different reasons. No costs.
A.G. Appeal dismissed.