NIHALA Vs. HARKE

JUDGEMENT

(1.) The facts giving rise to this appeal may be shortly stated. Zile Singh respondent No. 2 sold 21 kanals and 8 marlas of agricultural land situated in village Samachana to Harke respondent No. 1 for Rs. 4,500/- by virtue of a registered sale-deed executed on the 18th of August, 1958. Nihala, the father's brother of the vendor, who was originally the sole appellant in this Court but who died during the pendency of this appeal and is not represented by his heirs, brought a suit for possession of the land on the basis of pre-emption. Another such suit was brought by Shrimati Parmeshwari, the wife of the vendor, respondent No. 3. The two suits were consolidated and the vendee respondent admitted that both the suits were liable to be decreed. The Courts below held that Shrimati Parmeshwari had a preferential right of pre-emption as against Nihala, whose suit was decreed subject to the condition that Shrimati Parmeshwari, who was also awarded the relief claimed by her, did not deposit the amount of Rs. 4,500/- on or before the 3rd of August, 1959. Nihala came up in appeal to this Court with the prayer that he alone had the right of pre-emption and that Shrimati Parmeshwari has no such right.

(2.) This appeal must succeed on account of the changes brought about during its pendency by legislation amending the Punjab Pre-emption Act (hereinafter to be referred to as the principal Act). That legislation consists of the Punjab Pre-emption (Amendment) Act, X of 1960 (hereinafter called the amending Act) which added Section 31 to the principal Act. That Section is in the following terms :-

(3.) Section 15 of the principal Act, as it stood before the amending Act came into force, conferred a right of pre-emption in respect of agricultural land in the persons in order of succession who, but for the sale in question, would be entitled, on the death of the vendor or vendors, to inherit the property sold. Shrimati Parmeshwari being a preferential heir of her husband in comparison to Nihala, her right of pre-emption held by the two Courts below to be superior to that of Nihala. The amending Act, however, recast Section 15 of the principal Act which, as it stands now, recognises only certain relations of the vendor (of father's brother is one and a wife and a widow are not) in whom the right of pre-emption in respect of agricultural land is stated to vest. If the provisions of existing Section 15 govern this appeal, a right of pre-emption would be recognised in Nihala and none is Shrimati Parmeshwari.