AMAR NATH Vs. NIRMAL KUMARI

JUDGEMENT

(1.) At the time of the preliminary hearing, the Motion Bench had directed on 4-10-1967, that this R.S.A. was to be heard with L.P.A. No. 341 of 1966 and that the decision in that case would settle the fate of this appeal. The L.P.A. has since been decided and the judgment is reported as Surja v. Smt. Chhotto and others,1972 RLR 500. In view of the concession made by Shri D.N. Aggarwal, the learned counsel for the appellant, before the Motion Bench and in view of the ratio of the Division Bench ruling in the case cited above, this R.S.A. is liable to be dismissed.

(2.) Amar Nath appellant had filed this suit to pre-empt a sale of the land in dispute effected jointly by his deceased brother Jagan Nath's widow, two sons and five daughters. The appellant's relationship with the vendors was said to give him the right to pre-empt the sale. The suit has been decreed in appellant's favour in respect of a 3/8th share in the land sold by the widow and the two sons of Shri Jagan Nath deceased. The suit has, however, been dismissed in respect of the remaining 5/8th share of the land sold by the five daughters of Shri Jagan Nath deceased because in respect of the sale of their share, Section 15(2)(a) of the Punjab Pre-emption Act, 1913 , was applicable. In respect of the 1/4th share in the land sold by the two sons of Shri Jagan Nath, the case was governed by sub-section (1) of the said Section and the appellant as the father's brother of the vendors has a right of pre-emption under sub-clause Thirdly of clause (b) of this sub-section. As regards the 1/8th share sold by Shri Jagan Nath's widow, the appellant was found to have a right of pre-emption under Section 15(2)(b) Secondly. Shri Aggarwal further contends that the appellant had at one time owned this land jointly with his deceased brother and that they were co-sharers in this land. The pre-emption suit had not, however, been pressed in the Courts below on this ground. Even this ground would fall under Section 15(1) of the Punjab Pre-emption Act, 1913 .

(3.) Shri Aggarwal has made two submissions before me today. The first contention is that where males and females join in making a sale, sub-section (2) of Section 15 would be inapplicable in view of the non-obstante clause in the beginning of this sub-section. This argument is fully met by a Single Bench decision of this Court in Santa Singh v. Hazara Singh and others,1965 PunLR 132. Sitting alone, I would be bound by this Single Bench decision of this Court apart from the fact that this ruling was cited with approval by larger Benches of this Court in Surja's case and in Karta Ram and another v. Om Parkash, 1971 1 ILR(P&H) 244 (Full Bench). Shri Aggarwal contends that the later cases in which the ratio of Surja's ruling was approved were cases in which the sale had not been made jointly by males and females and that the ratio of Surja's case was not strictly applicable in these later cases and that any remarks in later cases approving the ratio of Surja's case were obiter dicta. As already observed, I would be bound by the Single Bench decision in Surja's case irrespective of whether the ratio of this ruling was approved, rightly or wrongly, by larger Benches in later cases.