Holding

A co‑sharer does not have a superior right of pre‑emption where the sale involves the share of a female owner, as such sale is non‑pre‑emptible under Section 15(2), and the amendments to Section 15 are ultra‑vires per the precedents.

Summary

Lash Singh and others filed a suit for pre‑emption of agricultural land, claiming a superior right as a co‑sharer under Section 15(1) of the Punjab Pre‑emption Act, 1913. The vendor, Singh Ram, had sold half of the land, part of which was owned jointly with his sister Angrezo, a female. The trial court upheld the plaintiff’s claim, but the first appellate court set aside the decree, holding that the sale of the female’s share was not pre‑emptible under Section 15(2) and that the vendee’s status became that of a co‑sharer. The High Court reversed this, restoring the trial court’s decree. The Supreme Court, relying on the decisions in Atam Prakash v. State of Haryana and Mahant Braham Dass Singh Pannu v. Om Prakash Chaudhary, held that the High Court erred and reinstated the first appellate court’s view, concluding that the plaintiff did not have a superior pre‑emptive right. The appeal was allowed and the High Court order set aside, with the plaintiff permitted to withdraw deposited amounts.

Issues considered

Whether the plaintiff has a superior right of pre‑emption as a co‑sharer under Section 15(1) of the Punjab Pre‑emption Act, 1913.
Whether the suit can be dismissed for not disclosing the complete fact that the sale was by Angrezo, a female vendor, making it non‑pre‑emptible under Section 15(2).
Whether the amendments to Section 15 removing kinship‑based pre‑emption are ultra vires, as held in Atam Prakash and Mahant Braham Dass cases.

Legislation cited

Code of Civil Procedure, 1908s. 100
Punjab Pre-emption Act, 1913s. 15(1), s. 15(2)

Subjects

pre‑emptionco‑sharerPunjab Pre‑emption Actagricultural landultra viresconstitutional validitysale by femalejoint ownershippartition

Judgment

[2008] 1 S.C.R. 639

~ ..o;·
LASH SINGH & ORS. A
v.
BACHAN SINGH
(C.A. No. 342 of 2008)

JANUARY 11, 2008
B
[DR. ARIJIT PASAYAT AND AFTAB ALAM, JJ.)
....
Punjab Pre-emption Act, 1913 - s. 15 (1) and (2) -
Agricultural land - Sale of - Suit by plaintiff claiming right to
pre-emption as co-sharer being fourth degree collateral of c
vendor - Decreed - First appellate court set aside the decree
holding that since property jointly owned by vendor with his
sister, sale to extent of share of female vendor was no( pre"
emptible, thus, vendee's status improved as that of co-sharer
- However, High Court restored the decree of trial court - On
D
appeal held: In view of *Atam Prakash and **Mahant Braham
Dass case, order of High Court set aside and that of first
appellate court upheld.
One 'SR' sold half of the land in dispute for an
ostensible consideration. The plaintiff filed a suit for pre- E
emption claiming superior right of pre-emption over the
suit land as a co-sharer with 'SR'-vendor uls 15(1) of
Punjab Pre-emption Act, 1913 claiming that he held the
suit land jointly with 'SR' as the fourth degree collateral of
-t 'SR' The defendant-appellant contended that 'SR' and his F
JI sister .'A' jointly owned half of the land and jointly executed
the sale deed; and that the sale being by a female was
governed by s. 15(2) of the Act. The trial court decreed
the suit on the ground that the plaintiff being a co-sharer
had superior right of pre-emption. The defendant filed an
G
appeal. The first appellate court held that the vendee had
-"'!
improved his status as that of a co-sharer since the sale
to the extent of share of 'A' was not pre-emptible and thus,
the plaintiff did not have superior right of pre-emption, and
set aside the judgment and the decree passed by the trial
639 H
640 SUPREME COURT REPORTS (2008] 1 S.C.R.

A court. The respondent filed a second appeal. The High
Court set aside the order of the first appellate court
and restored that of the trial court. Hence the present
appeal.
Allowing the appeal, the Court
B
HELD: In view of the decisions in* A tam Prakash case
and **Mahant Braham Dass case by this Court, the
judgment of the High Court restoring the judgment and
decree of the trial Court is set aside. The first Appellate
c Court had taken the correct view. Certain amounts have
been deposited by the respondent-plaintiff with the trial
court. The said Court would permit withdrawal of the
amount by the respondent on a proper application being
made. [Para 15] [644-G; 645-A]
D *Atam Prakash v. State of Haryana and Ors. 1986 (2)
SCC 249; **Mahant Braham Dass Singh Pannu v. Om Prakash
Chaudhary 1996 (7) SCC 97 - relied on.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 342
E of 2008.
From the final Judgment and Order dated 29.10.2004 of
the High Court of Punjab and Haryana at Chandigarh in R.S.A.
No. 1352 of 2000.
Pardeep Gupta, K. K. Mohan, Suresh Bharati and Vijay
t
F Laxmi Lithanthem for the Appellants.
Kuldip Singh for the Respondent.
Dr. ARIJIT PASAYAT, J. 1. Heard learned counsel for the
parties.
G
2. Leave granted.
3. Challenge in this appeal is to the judgment dated
29.10.2004 passed by a learned Single Judge oo' the Punjab
and Haryana High Court in a Second Appeal filed under Section
H 100 of the Code of Civil Procedure, 1908 (in short 'CPC'). The
LABH SINGH & ORS. v. BACHAN SINGH 641
[PASAYAT, J.]
,. A Second Appeal before the High Court was filed by the plaintiff A
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. B
4. Background facts in a nutshell are as follows:
~~'It

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 c
Naraingarh. The plaintiff and vendor Singh Ram are related to
each other as the plaintiff is fourth degree collateral 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/-
D
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 'Act'). It was the case of the defendant that
Singh Ram was owner of only 3/4 1h share and his sister was E
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 of the land. In replication, it
"+ was pointed out that the sale is by Singh Ram for himself F
! 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 G
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 H
642 SUPREME COURT REPORTS [2008) 1 S.C.R.

~ ~
A 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:
B
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
c 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.
D 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) sec 249).
9. It was further submitted that the view was re-iterated in
E Mahant Braham Dass Singh Pannu v. Om Prakash Chaudhary
(1996 (7) sec 97).
10. In Atam Prakash case (supra) it was inter alia observed
as follows:-
F 1"
"We are thus unable to find any justification for the
classification contained in Section 15 of th~ 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
G 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 'Che agnatic theory of succession
are today irrelevant. The list of kinsfolk mentioned as
H entitled to pre-emption is intrinsically defective and self-
LASH SINGH & ORS. v. BACHAN SINGH 643
[PASAYAT, J.)
~ .*
contradictory. There is therefore no reasonable A
classification and clauses "First'', 'Secondly" and 'thirdly"
of Section 15(1)(a). "First", "secondly", and "thirdly" of
Section 15(1)(b), clauses "First", "secondly" and "thirdly"
of Section 15 (1)(c) a:id the whole of Section 15(2) are,
therefore, declared ultra-vires the constitution. 8
We are told that in some cases suits are pending in various
I-~
courts and, where decrees have been passed, appeals
are pending in appellate 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 c
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." D
... 11. In Mahant Braham Dass's case (supra) it was noted
as follows:
"The question then is whether he is a co-sharer. It is·
seen that at one time he was co-sharer but subsequently, E
brothers effected by mutual consent partition and the
vendee/appellant's 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
"'t independent of the right to vicinage. It would appear that F
) 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. GK. Bansal, learned counsel for the respondent, sought
to place reliance on the judgment of this Court in Bhikha
G
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 'Fourthly' 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
H
644 SUPREME COURT REPORTS [2008] 1 S.C.R.

A was entitled to seek pre-emption. It is true that independent 1-- i"·~
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
B 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
c coparcener."
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
D
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
E noted:
"But 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
F counsel for the defendants, is not maintainable because r
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".
G
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 ap~eal deserves to
succeed which we direct. The judgment of the High Court
restoring the judgment and decree of the trial Court is set
H
LASH SINGH & ORS. v. BACHAN SINGH 645
[PASAYAT, J.]

.I aside. The first Appellate Court had taken the correct view. It A
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 B
costs.
N.J. Appeal allowed.