GOPALA AND ORS. Vs. RAM SARAN AND ORS.

JUDGEMENT

(1.) In this letters patent appeal the only question that falls for determination is whether a step -brother has also to be regarded as a brother for purposes of the second paragraph of Sec. 15(1) of the Punjab Pre -emption Act of 1913 as applied in Himachal Pradesh.

(2.) One Mohan had two wives, named Dulumbi and Surju. The Defendants Nos. 7 to 11 are the sons of Mohan from Dulumbi while Ram Saran is the son of Mohan from Surju. Defendants Nos. 7 to 11 sold 14 kanals and 6 marlas of land for Rs. 3,500 to Gopala, Dila Ram, Inder Ram, Kanshi Ram, Lashkari Ram and Hari Ram on May 6, 1964. A suit to preempt the sale was instituted by Ram Saran. The vendees resisted the right of Ram Saran Plaintiff to pre -empt the sale. The trial Judge, Hamirpur held that the Plaintiff being a step -brother of the vendors could be regarded as their brother and, therefore, had a right of pre -emption under the second paragraph of Sec. 15(1)(A), of the Punjab Pre -emption Act, 1913 (hereinafter referred to as the Act) and he accordingly decreed the suit on June 8, 1965.

(3.) The vendees came up in appeal to the Senior Subordinate Judge, Kangra at Dharamsala. He held that the word "brother" in the second paragraph of Sec. 15(1)(a), of the Act does not include "a half -blooded brother" and he accordingly accepting the appeal dismissed the suit. Against this an appeal was filed to the High Court of Delhi, Himachal Pradesh, at Simla and the learned single Judge relying on Jhandav v/s. Dharam Dass ( : 1969 DLT 121) decided that the legitimate sons born from different mothers but the same father are nothing but brothers and it would not be correct to say that for purposes of paragraph second of Sec. 15(1)(a) the expression "brothers" should be confined to sons, who are born from the same mother and have also the same father. The Appellant undoubtedly had the right of pre -emption, being a brother of the vendors and, therefore, he accepted the appeal with costs and decreed the suit of the Plaintiff on payment of Rs. 3,500 to the vendees who were ordered to deliver possession of the land to the Appellant.