Case Note & Summary
The case arose from a suit for pre-emption filed by the respondent, Anil Kumar, under Section 15(1)(b) clause secondly of the Punjab Pre-emption Act, 1913. The appellant, Karnail Singh, purchased a share in joint property from the respondent's sister, Neeru, by a registered sale deed dated January 22, 1985. The respondent claimed a superior right to pre-empt the sale as a co-sharer and relative of the vendor. The trial court decreed the suit, the appellate court affirmed, and the Punjab & Haryana High Court dismissed the second appeal in limine. Meanwhile, the Supreme Court in Atam Prakash v. State of Haryana, (1986) 2 SCC 249, declared clauses (i) to (iii) of Section 15(1)(b) as amended in 1960 to be ultra vires Articles 14 and 15 of the Constitution, while upholding the constitutional validity of clause fourthly regarding 'other co-sharers'. Consequently, the respondent's claim based on clause secondly became untenable, but the Supreme Court granted special leave to consider whether the respondent could still claim pre-emption under clause fourthly as an 'other co-sharer'. The Court noted that in Bhikha Ram v. Ram Sarup, (1992) 1 SCC 319, a three-judge Bench had held that Section 15 after the 1960 amendment vested the right of pre-emption in 'other co-sharers' where the sale was of a share out of joint property and not by co-sharers jointly; the expression 'other co-sharers' was used to ensure that no co-sharer was left out or omitted and not to deny the right to kinsfolk from the erstwhile first three clauses if they happened to be co-sharers. The Court quoted the conclusion that the earlier decision did not intend to deny pre-emption to those relatives who were co-sharers, and that the classification based on consanguinity, not co-ownership, was what had been disapproved. Applying this law, the Court found that the respondent Anil Kumar was a co-sharer and was not a party to the sale transaction executed by his sister Neeru; therefore, he was an 'other co-sharer' under clause fourthly of Section 15(1)(b) and entitled to pre-emption. The appellant's counsel argued that there was no evidence of co-sharer status and that the sale deed recitals indicated a prior partition, but the respondent produced a document of the year 1974-75 already marked in the trial court showing co-ownership. The Court declined to remit the matter for further evidence. Accordingly, the Supreme Court dismissed the appeal, though for different reasons than the lower courts, and awarded no costs.
Headnote
A) Property Law - Pre-emption - Rights of Co-sharers under Punjab Pre-emption Act, 1913 - Punjab Pre-emption Act, 1913, Section 15(1)(b) clause fourthly - The dispute concerned whether a brother, a relative covered by the erstwhile clause (ii), could claim pre-emption as an 'other co-sharer' after clauses (i)-(iii) were struck down as violative of Articles 14 and 15 of the Constitution. The Supreme Court, relying on Atam Prakash v. State of Haryana and Bhikha Ram v. Ram Sarup, held that the expression 'other co-sharers' in clause fourthly was not intended to deny pre-emption to relatives who are also co-sharers; kinship-based classification was invalid but co-ownership classification was permissible. Since the respondent was not a party to the sale by his sister and documentary evidence showed co-ownership, he was entitled to pre-emption. Held that the appeal is dismissed with no costs. (Paras 166-B, 167-B-D)
Issue of Consideration
Whether a relative covered by the erstwhile clauses (i)-(iii) of Section 15(1)(b) of the Punjab Pre-emption Act, 1913 who is also a co-sharer is entitled to claim pre-emption as an 'other co-sharer' under clause fourthly after those clauses were declared ultra vires Articles 14 and 15 of the Constitution; whether there was sufficient evidence of co-sharer status.
Final Decision
The Supreme Court dismissed the appeal, holding that the respondent was entitled to pre-emption as an 'other co-sharer' under clause fourthly of Section 15(1)(b) of the Punjab Pre-emption Act, 1913, relying on Atam Prakash v. State of Haryana and Bhikha Ram v. Ram Sarup. The Court found no need to remit for further evidence because the respondent produced a document of 1974-75 showing co-ownership. No costs awarded.
Law Points
- Right of pre-emption under Section 15(1)(b) clause fourthly includes relatives covered by invalidated clauses if they are co-sharers
- kinship-based pre-emption clauses violate Articles 14 and 15 of Constitution
- expression 'other co-sharers' must be read to include all co-sharers not party to sale
- evidence of co-ownership can be established by prior document of co-ownership
- no remand needed if document already on record
