SHANTI Vs. WALAITI RAM

JUDGEMENT

(1.) This appeal arises out of a pre-emption case. A sale of 41 bighas & 7 biswas of agricultural land was made by Chet Rarn, Chanan Ram. Hari Ram & Chiranji Lal, sons of Nathu Ram, to Walaiti Ram for Rs. 2,800. Mt. Shanti, wife of Chanan Ram pre-empted the sale. Her position was that she was an heir of the vendors & since the vendee was a stranger she bad the pre-emptive right. The suit was resisted by (sic) Ram. In the first place he denied that the pltf. had the right to pre-empt & secondly he urged that the suit was collusive. The trial Ct. found against the contesting deft. as regards the collusive nature of the suit but accepted his plea that the pltf. was not an heir of the vendors & she had no right to maintain the action. Accordingly it dismissed the suit. The pltf. after having unsuccessfully appealed to the Dist. J. preferred a second appeal in the H.C. The learned single Judge maintained the decisions of the Cts. below & dismissed the appeal but certified that it was a fit case for appeal to a D.B.; hence this appeal by the pltf.

(2.) Both sides are agreed that the case is governed by of Clause (a) of Section 15, Pre-emption Act, which law down that subject to the provisions of Section 14 the right of pre-emption in respect of agricultural land & village Immovable property shall vest, where the sale is by a sole owner of occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold.

(3.) The vendors are Brahmans & the land sold was owned by them jointly. The lower Cts. have taken the view that since they were governed by Hindu Law & they constituted a joint family, according to the principle of survivorship the pltf. who is the wife of one of them, could not inherit the land, not even the share of her husband, & accordingly she could not successfully pre-empt the sale. That the vendors are governed by Hindu Law cannot be denied. Apart from the fact that they are high class Hindus & the presumption is that their personal law applies to them, it was not even alleged by the pltf. that they were governed by custom. Shri Atma Ram, learned Counsel for the pltf. applt. made an effort to challenge the finding of the Cts below that the vendors constituted a joint Hindu family & with a view to showing that they were separate from one Anr. , he drew our attention to the entries in the revenue records in which the share of each vendor was specified. I am inclined to think that since the presumption in case of every normal Hindu family is in favour of jointness, it was for the pltf. to allege & prove that in this case the vendors family had disrupted, but she did nothing of the kind. Specification of share in the revenue papers does not raise any presumption of separation, because it is common knowledge that even in case of persons who admittedly constitute a joint Hindu family, the revenue authorities specify their shares probably with a view to make them individually liable for their respective shares of land revenue. It is, however, unnecessary to pursue this matter further, because as I shall show hereafter, even if it be taken for granted that the vendors were not members of a joint family & each one of them was a complete owner of his share, this would not make any difference regarding the pltf's. right to preempt the sale, which I have already pointed out is the joint sale by all of them.