Case Note & Summary
The dispute arose from a suit for pre-emption under the Punjab Pre-emption Act, 1913. The respondent Anil Kumar filed the suit claiming right of pre-emption as brother of the vendor Neeru, who had sold the disputed property to the appellant Karnail Singh by registered sale deed. The trial court decreed the suit, the appellate court confirmed it, and the High Court of Punjab and Haryana dismissed the second appeal in limine by order dated 22 January 1985. The Supreme Court granted special leave after noticing that the very clause relied upon by the respondent, namely clause secondly of Section 15(1)(b) of the Act, had been declared ultra vires Articles 14 and 15 of the Constitution in Atam Prakash v. State of Haryana. The core legal question was whether the respondent, a brother of the vendor and not a party to the sale, could still claim pre-emption as an 'other co-sharer' under clause fourthly of Section 15(1)(b), despite the invalidation of clauses (i) to (iii). The appellant argued that there was no evidence to show that the respondent was a co-sharer, and that the sale deed recitals indicated a prior partition under which the vendor Neeru obtained the property towards her share, thereby negating co-ownership. The respondent produced a document of 1974-75, already marked in the trial court, evidencing co-ownership. The Court relied on the three-Judge bench decision in Bhikha Ram v. Ram Sarup, which had interpreted the expression 'other co-sharers' in clause fourthly to include relatives specified in the erstwhile first three clauses if those relatives happened to be co-sharers. The Court held that Atam Prakash did not intend to deny the right of pre-emption to kinsfolk who were also co-sharers, as that would be discriminatory. Applying this principle, the Court concluded that even relations otherwise not entitled under clauses (i) to (iii) would become co-sharers under clause fourthly if they were co-owners. Since the respondent Anil Kumar was not a party to the sale transaction executed by his sister, he qualified as an 'other co-sharer' under clause fourthly and was entitled to pre-emption. The Court found no reason to remit the matter for further evidence because the document of 1974-75 demonstrated co-ownership. Accordingly, the appeal was dismissed though for different reasons, with no order as to costs.
Headnote
A) Constitutional Law - Ultra Vires Provisions - Clauses (i) to (iii) of Section 15(1)(b) Punjab Pre-emption Act, 1913 as amended in 1960 were declared ultra vires Articles 14 and 15 of the Constitution in Atam Prakash v. State of Haryana - The court noted that the claim based on clause secondly had been declared ultra vires, hence special leave was granted. Held that classification based on consanguinity is offensive to Articles 14 and 15, but co-ownership is a valid basis for pre-emption (Paras 1-2). B) Punjab Pre-emption Act, 1913 - Right of Pre-emption of Co-sharers - Section 15(1)(b) clause fourthly - The expression "other co-sharers" includes relatives specified in erstwhile first three clauses if they happen to be co-sharers; the word "other" conveys possibility of their being co-sharers. Court relied on Bhikha Ram v. Ram Sarup which held that Atam Prakash did not intend to deny right to kinsfolk-co-sharers. Held that respondent Anil Kumar, being brother of vendor and not party to sale, is an other co-sharer under clause fourthly and entitled to pre-emption (Paras 2-3). C) Evidence - Proof of Co-ownership - Section 15(1)(b) clause fourthly, Punjab Pre-emption Act, 1913 - Appellant contended no evidence of co-sharer status; sale deed recitals showed prior partition. Respondent produced document of 1974-75 already marked in trial court showing co-owners. Court held no justification to remit for further evidence and dismissed appeal (Para 3-4).
Issue of Consideration
Whether a brother of vendor, not party to sale, is entitled to pre-emption as 'other co-sharer' under clause fourthly of Section 15(1)(b) of Punjab Pre-emption Act, 1913 after clauses (i)-(iii) were declared ultra vires; and whether evidence established co-sharer status.
Final Decision
The appeal was dismissed, though for different reasons, with no order as to costs. The Supreme Court held that Anil Kumar, as brother of the vendor and not a party to the sale, is an 'other co-sharer' under clause fourthly of Section 15(1)(b) of Punjab Pre-emption Act, 1913, and entitled to claim pre-emption. The Court found no justification to remit the matter for further evidence.
Law Points
- Clauses (i)-(iii) of Section 15(1)(b) of Punjab Pre-emption Act
- 1913 as amended in 1960 are ultra vires Articles 14 and 15 of Constitution
- Classification based on consanguinity is unconstitutional but co-ownership is valid basis for pre-emption
- The expression 'other co-sharers' in clause fourthly includes relatives from erstwhile clauses if they are co-owners
- A co-sharer not party to sale can claim pre-emption
- Prior partition recital does not necessarily negate co-ownership if other document shows co-ownership
