Case Note & Summary
The case arose from a suit for pre-emption of agricultural land measuring 20 kanals 4 marlas under the Punjab Pre-emption Act, 1913. The original plaintiff, Jinda Ram, who had since died and was represented by legal representatives, claimed a preferential right of pre-emption as a co-sharer and tenant under Section 15(b) fourthly and fifthly of the Act. The defendants were vendees who had purchased the suit land. The trial court framed ten issues and found that the plaintiff was a co-sharer in the joint khewat and had a preferential right of pre-emption; it also found the tenant claim in his favour. However, the trial court granted only a partial decree, restricting relief to the shares of two male vendors out of eight vendors, on the ground that the right of pre-emption was not available against female vendors. The plaintiff appealed to the Additional District Judge, Karnal, who reversed the trial court's restriction concerning female vendors but dismissed the entire suit on the ground that the vendees-defendants had themselves become co-sharers after purchasing the suit land, thereby extinguishing the plaintiff's right of pre-emption. The plaintiff then filed a second appeal before the High Court of Punjab and Haryana. The High Court, while setting aside the reasoning of the lower appellate court as palpably wrong and legally unsustainable, dismissed the second appeal on a different ground. The High Court accepted the contention that a pre-emptor must maintain his qualification at all three stages: at the time of sale, at the time of institution of the suit, and at the time of decree. Since during the pendency of the appeal the suit lands were partitioned, the plaintiff ceased to be a co-sharer in the joint holding, and therefore his right of pre-emption was lost. Before the Supreme Court, the appellants argued that this view was unsustainable because it would make it impossible for any pre-emption decree to be successfully obtained. They also relied on Section 21(A) of the Punjab Pre-emption Act, 1913, and contended that the independent claim based on tenant status could not be defeated. The Supreme Court found substance in the appellants' argument. It held that the relevant period to exercise the right of pre-emption is the period when the sale was effected and when the suit was filed claiming that right. Since the plaintiff's right as a co-sharer to pre-empt was established in the trial court and not challenged by the vendees-defendants, a partition that occurred during the pendency of the appeal could not defeat that right. Accordingly, the judgment and order of the High Court were set aside, and the appellants were held entitled to a decree for pre-emption as prayed for. With regard to valuation, the first appellate court had fixed the sale consideration at Rs 7,200 plus stamp, registration, and execution charges as fixed in the trial court decree. The Supreme Court directed the appellants to deposit that amount in the trial court within two months. The appeal was allowed with no order as to costs.
Headnote
A) Property Law - Pre-emption - Co-sharer's Right - Punjab Pre-emption Act, 1913, Section 15(b) fourthly and fifthly, Section 21(A) - The right of pre-emption of a co-sharer is determined at the time of sale and institution of suit; a partition during pendency of appeal does not defeat the right already established - The High Court had held the pre-emptor must maintain qualification at all three stages, but the Supreme Court reversed, holding that the relevant period is the date of sale and suit filing, and since the plaintiff was a co-sharer at those stages and the trial court decree was not challenged, the subsequent partition could not extinguish the right. Held, appeal allowed and decree for pre-emption granted.
Issue of Consideration
Whether a partition effected during the pendency of an appeal affects the right of a person who was admittedly a co-sharer at the time of sale and institution of the pre-emption suit.
Final Decision
Appeal allowed; judgment and order of the High Court dated 18.3.1992 in RSA No. 2342 of 1981 set aside; appellants entitled to a decree for pre-emption as prayed for; sale consideration fixed at Rs 7,200 plus stamp, registration and execution charges as per first appellate court; appellants to deposit the amount in trial court within two months; no costs.
Law Points
- Right of pre-emption accrued on date of sale and suit filing
- subsequent partition does not defeat
- pre-emptor need not maintain qualification at decree stage
- co-sharer's right under Section 15(b) fourthly and fifthly Punjab Pre-emption Act 1913
- tenant status also protected
- Section 21(A) considered
