KARNAIL SINGHversusANIL KUMAR AND ANR.

                               KARNAIL SINGH                                         A
                                     v.
                            ANIL KUMAR AND ANR.

                                JANUARY 10, 1995

             [K. RAMASWAMY AND SUJATA V. MANOHAR, JJ.]                               B

          Punjab Pre-emption Act, 1913-Clause (iv) of s.15 (l)(b)-Pre- emp-
    tion-Sister sold her share out of joint family property-Brother entitled to
    pre-emption as "other co-sharer".

           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·
    ti on Act, 1913. Trial Court decreed the suit. Appeal and second appeal were
    dismissed.
                                                                                     D
            Dismissing the appeals for different reasons, this Court

          HELD : 1.1. Respondent entitled to claim pre-emption as he was not
    a party to the sale transaction executed by sister and he 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 (iii) of Section 15(l)(b) as amended in 1980 were
    declared ultra-vires Articles 14 and 15 of the Constitution but as validity of
    15(1)(b)(iv) was upheld it entitled those relations covered under Section
    15(1)(b)(i) to (iii) who are "co-sh~rers" to per-emption rights. [167·B·D]
                                                                                     F
         Atam Prakash v. State of Haryana, [1986) 2 SCC 249 and Bhikha Ram
    v. Ram Sarup, [1992) 1 SCC 319, relied on.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1569 of
    1986.
                                                                                     G
         From the Judgment and Order dated 22.1.85 of the Punjab &
    Haryana High Court in R.S.A. No. 3126 of 1984.

            K.K. Mohan for the Appellant.
•
            D.V. Sehgal and Prem Malhotra for the Respondents.                       H
                                      165
    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
    appellant Neeru are brother and sister. Neeru sold the property in dispute
B   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 Sarnp, [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 Atom 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 jus-
                                                                                       ..
H            tification was found. The relations in the first three clauses of
                           KARNAIL SINGH v. ANIL KR.                          167

              s.15(1)(b) 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 B
              hold that this court intended to deny the right of pre-emption of
              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
      clauses (i) to (iii) of s.15(1)(b) of the Act would also become 'co-sh.uers'
                                                                                    c
      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.
                                                                                     F
           The appeal is accordingly dismissed though for different reasons.
      No costs.

      A.G.                                                     Appeal dismissed.