HIRA AND ORS. Vs. BIR SINGH AND ORS.

JUDGEMENT

(1.) THE following pedigree table will be helpful in understanding the facts giving rise to this Regular Second Appeal No. 351 of 1963: -

(2.) JAI Ram (shown in the above pedigree table), sold his l/3rd share in 633 Kanals and 10 Marias of agricultural land situated in the area of village Sarsana, tehsil Hissar, for Rs. 5,000, by a registered deed, executed on 5th July, 1957, but registered on 1st March, 1958. Bir Singh, son of Binja Ram instituted Suit No. 125 on 9th May, 1959, for pre -empting the sale on the ground that he was the vendor's brother's son. Another suit for pre -emption was instituted by Hira Lal, brother of the vendor, and his sons, Bhura and Gharsi, basing their claim on the provisions of clause secondly of Section 15(1)(b) of the Punjab Pre -emption Act, 1913 (hereinafter referred to as 'the Act'). The trial Court (Sub -Judge, 1st Class, Hissar) decreed the suits holding that Bir Singh Plaintiff was entitled to one -half, while Hira and his sons, Gharsi and Bhura were entitled to the remaining one -half of the property. Hira and his sons went up in appeal to the Senior Subordinate Judge. Hissar, claiming that each of the Plaintiff pre -emptors was entitled to l/4th of the suit property. The Senior Subordinate Judge by his cryptic judgment, dismissed the appeal and affirmed the decree of the trial Court. Hira and his sons have come up in second appeal to this Court.

(3.) IN support of his contention, the learned Counsel has referred to a Single Bench judgment of this Court in R.S.A. 1615 of 1960. decided on 20th March, 1962, by Gurdev Singh, J., which was confirmed in Letters Patent Appeal by a Division Bench, consisting of Dulat and R.P. Khosla. JJ., It has also been urged that so far as the distribution of the property among the rival pre -emptors is concerned, the case would fall under the residuary Clause (e) of Section 17 of the Act, and not under its Clause (b). The argument is that under the Act, after the amendment of 1960, the right of pre -emption has been given to specified persons and not to the whole line of heirs, and that the old concept of maintaining the compactness of the village community, based on the agnatic theory of succession, has been done away with. In other words, it is contended that the "brother and the brother's sons" in the present case are not claiming as 'heirs', but only as specified persons in a group having an equal and independent right of pre -emption. It is argued that Section 17 cannot be so construed as to altogether take away the substantive right given by Section 15. On this point, reliance has been placed on Fateh Mohammad and Anr. v. Fateh Mohammad, 1947 PL.R. 160.