LAKHA SINGH Vs. AMARJIT KAUR

JUDGEMENT

(1.) One Swam Singh sold land measuring 23 bighas and 2 biswas alongwith abadi site and rights in the Shamlat Deh to Onkar Singh and others (in brief, the vendees) through registered deed Ex. P -A dated April 19, 1974, for a sum of Rs. 70,000. Appellant Lakha Singh instituted a suit on May 7, 1975 for pre -emption of the aforesaid sale on the ground that he was vendors brother. According to him, the actual sale consideration was Rs 32,000 only and it had been fictitiously shown to be Rs. 70,000. The suit was decreed on June 30, 1979 by the learned trial Court who permitted him to pre -empt the sale on payment of Rs. 32,000 in addition to the expenses incurred in the execution and registration of the sale deed amounting to Rs 4,915. In first appeal decided on December 31,1980, the learned District Judge upheld the right of the appellant to pre -empt the same but directed that Rs 70,000 be paid by him to the vendees instead of Rs. 32,000 allowed by the Court below. The balance amount was duly deposited within the time granted by the District Judge. The vendees thereafter withdrew the amount. In execution proceedings, Lakha Singh was delivered the possession of land in question on June 23, 1981. Simultaneously, Lakha Singh had filed a Regular Second Appeal on March 2, 198! praying that the impugned order to the extent it related to increase in the sale consideration be set aside.

(2.) During the pendency of the present appeal, the Supreme Court held in Atam Prakash v. State of Haryana and others, AIR 1986 SC 859 the right of pre -emption granted to kinsfolk on the basis of consanguinity illegal. Thus, clauses First, Secondly and Thirdly of section 15 (!) (a) and (b) and (c) and the whole of section 15(2) were declared ultra -vires the Constitution. In Jagdish and others v. Nathi Mal Kejriwal and others, AIR J987 SC 68 the expression "other co -sharers" in clause Fourthly of section 15 (i) (b) fell for interpretation and the Supreme Court held that it referred only to those co sharers who do not fail under clause First or Secondly or Thirdly of section 15 (i) (b) It was observed in Partap Singh and others v. Vidya Devi, ILR 1987 HP 281 that the rationale behind excluding co -sharers who fall under clauses First or secondly or Thirdly of section 15 (i) (b) is that they are also related to the Vendor in a manner so as to be entitled to claim pre -emption On the ground of consanguinity.

(3.) Appellant Lakha Singh, as stated above, had prayed for a decree of possession through pre -emption on the basis that he was vendors brother. Manifestly, therefore, his right to pre -empt no longer existed after the aforesaid pronouncements made by the Supreme Court.