MOHINDER SINGH Vs. BALBIR KAUR

JUDGEMENT

(1.) THIS is a regular second appeal preferred by the defendant vendees against the plaintiffs-pre-emptor from the judgment and decree of the District Judge, Sangrur, affirming that of the trial Court decreeing the suit of the plaintiffs-preemptor.

(2.) THE facts of this case are that one Bagga Singh executed a will on 18th of August, 1948 (Exhibit P/l) in favour of his five daughters stating that his five daughters would become in equal share, owners in possession enjoying the same rights as the testator. He died in 1949. Gurmit Kaur, one of his five daughters, sold her share of the land for Rs. 29,000 to defendants 1 to 8 on 8th of December, 1964. Balbir Kaur, sister of Gurmit Kaur, vendor, instituted a suit for possession by pre-emption on the ground that she was a co-sharer and as such could preempt the sale under Section 15 of the Punjab Pre-emption Act. The defendants-vendees resisted the suit on several grounds which gave rise to the following issues:- (1) Whether the plaintiff got a right of pre-emptor with regard to the sale in dispute. (2) Whether the sale price was actually paid or fixed in good faith? (3) If issue No. 2 is not proved, what is the market value of the land in suit? (4) To what extent, the defendants-vendees are entitled to claim as deed and registration expenses? (5) Whether the part of land in suit was Banjar Qadim at the time of the sale and the same has been reclaimed by the vendees-defendants and if so, to what effect? (6) Relief. Arguments have been addressed on the first issue only and there is no longer any dispute on issues 2 to 5. The trial Court decreed the plaintiff's suit directing the plaintiff to pay or deposit into Court the sum of Rs. 30858/50 P. after deducting the part of the sale price already paid into Court on or before 2nd November, 1967, failing which the suit of the plaintiff would stand dismissed with costs. The vendees who filed the appeal against the judgment and decree of the trial Court were unsuccessful before the District Judge, Sangrur.

(3.) THEY have now come up in second appeal to this Court and the only point which calls for a decision is whether the plaintiff had a right of pre-emption under Section 15 of the Punjab Preemption Act. The relevant provisions are reproduced below:- "15 (1) The right of pre-emption in respect of agricultural land and village immoveable property shall vest - (a) xxxx (b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly, FIRST in the sons or daughters or sons' sons or daughter's sons of the vendor or vendors; SECONDLY, in the brothers or brother's sons of the vendor or vendors; THIRDLY, in the father's brothers or father's brother's sons of the vendor or vendors; FOURTHLY, in the other co-sharers; FIFTHLY, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof; (c) xxxx (2) Notwithstanding a anything contained in Sub-section (1) - (a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of preemption shall vest, - (i) if the sale is by such female, in her brother or brother's son; (ii) if the sale is by the son or daughter of such female, in the mother's brothers or the mother's brother's sons of the vendor or vendors; (b) where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest, -FIRST, in the son or daughter of such husband of the female; SECONDLY, in the husband's brother or husband's brother's son of such female. " The plaintiff has asserted her pre-emptive right as a co-sharer along with her other sisters and has contended that the right of pre-emption vests in her under Section 15 (1) (b) Fourthly. Sub-section (2) of Section 15 is in the nature of non obstante clause and is an exception to the rule laid down in Sub-section (1 ). Where Sub-section (2) applies, the provisions of Sub-section (1) do not operate. The only question calling for determination is whether Sub-section (2) (a) governs the case. It is argued on behalf of the appellants that the sale was by a female of land to which she had succeeded "through her father", and therefore, it could be pre-empted by her brother or brother's son and not by her sister.