JHANUA Vs. DHARAM DASS

JUDGEMENT

(1.) This second appeal raises the interesting question whether a father's half-brother is the father's brother within the meaning of section 15 I (e), Thirdly, and the husband's brother within the meaning of section 15(2)(b). Secondly, of the Punjab Pre-emption Act, 1913. The trial Court held that such a half- brother was entitled to pre-empt, while the lower appellate Court held that he was not.

(2.) The plaintiff in the suit is Jhanda son of Zilam He filed the suit out of which this appeal arises for pre-emption against Dharam Das to whom the lands in dispute had been sold by Jodha and Bhauni, sons of Rosa. and by Shivju, wife of the said Rosa. Rosa was also a son of Zalam but from a different wife. It was alleged in the plaint that the land in suit had been sold by Jodha, Bhauni and Shivju, hereinafter collectively referred to as "vendors", for an ostensible sale price of Rs. 1,500.00 which was not actually paid nor fixed in good faith and that the market value of the said land was not more than Rs. 1,000.00. It was also pleaded in paragraph 3 of the plaint that the plaintiff Jhanda was also a co-sharer of the vendors. The trial Court framed the following issues :-

(3.) Issue No. 2 does not arise for determination because, as it appears from the judgment of the lower appellate Court, the plaintiff's counsel conceded that the sale price had been fixed in good faith and actually paid. Upon issue No. 1 no clear finding was given by the trial Court as to whether the plaintiff was a co-sharer, as alleged. Bat the trial Court held that even though the plaintiff was a half-brother of the said Rosa, he had a right to pre-empt. Accordingly, a dacree for possession by way of pre-emption was passed by the trial Court.