Bhikha Ram VS. Ram Sarup And Ors.

Summary

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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 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.

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Extract

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Bhikha Ram VS. Ram Sarup And Ors.

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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4366 of 1991.

From the Judgment and Order dated 16.5.1988 of the 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 delivere...

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