Appeal No 4366 of 1991
From the Judgment and Order dated 1651988 of the Punjab  Haryana High Court in Regular Second Appeal No 3648 of 1987
RKKapoor and Anis Ahmed Khan for the Appellant
SNMishra LK Gupta DK Yadav and DKGarg for the Respondents
The Judgment of the Court was delivered by AHMADI J
Delay condoned
Special leave granted
The constitutional validity of section 151a of the Punjab Preemption Act 1913 was challenged on the ground that it offended the fundamental right guaranteed by Article 191f m Ram Sarup vs Munshi  Ors A Constitution Bench of this Court upheld the validity holding that there was no infringement of Article 1911  of the Constitution
Thereafter a host of writ petitions 122 were filed in this Court under Article 32 of the Constitu tion challenging the constitutional validity of section 15 on the ground that it infringed Articles 14 and 15 of the Constitution
It may be mentioned that the mother State the State of Punjab had repealed the Act in 1973 but it contin ued to be in force in the State of Haryana which prior to 1966 was a part of the State of Punjab
Section 15 of the 1913 Act as it originally stood underwent substantial changes in 1960 and as amended read as under 15
Persons in whom right of pre emption vests in respect of sales of agricultural land and village immovable property 1 The right of pre emption in respect of agricultural land and village immovable property shall vest a where the sale is by a sole onwer First in the son or daughter or son s son or daughter s son of the vendor Secondly in the brother or brother s son of the vendor Thirdly in the father s brother or father s brother s son of the vendor Fourthly in the tenant who holds under tenan cy of the vendor the land or properly sold or a part thereof Co where the sale is of a share out of joint land or property and is not made by all the co sharers jointly First in the sons or daughters or son s son or daughter s sons of the vendor or vendors Secondly in the brothers or brother s sons of the vendor or vendors Thirdly in the father s brother or father s brother s sons of the vendor or vendors Fourthly in the other co sharers Fifthly in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof c where the sale is of land or property owned jointly and is made by all the co shar ers jointly 123 First in the sons or daughters or sons  sons or daughters  sons of the vendors Secondly in the brothers or brother s sons of the vendors Thirdly in the father s brothers or father s brother s sons of the vendors Fourthly in the tenants who hold under tenancy of the vendors or any one of them the land or properly sold or a part thereof
2 Notwithstanding anything con tained in sub section 1 a  where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance the right of pre emption shall vest i if the sale is by such female in her brother or brother s son ii if the sale is by the son or daughter of such female in the mother s brothers or the mother s brother s sons of the vendor or vendors b where the sale is by a female of land or property to which she has succeeded through her husband or through her son in case the son has inherited the land or property sold from his lather the right of pre emption shall vest First in the son or daughter of such husband of the female Secondly in the husband s brother or hus band s brother s son of such female This Court in Atam Prakash vs State of Haryana  Ors   held that the right of pre emption given to co sharers as well as to a tenant can be justified as they constitute a class by themselves
This Court therefore upheld the constitutional validity of clause fourthly of section 151a clauses fourthly  and fifthly  of section 151b and clause fourthly of section 151c as valid and not infringing Articles 14 or 15 of the Constitution This Court however did not find any justification for the classification contained m section 15 which conferred a right of pre emption on the kinsfolk
The right of preemption based on consanguinity was held to be a relic of the feudal past totally inconsistent with the constitutional philosophy and scheme
It also found the list of kinsfolk entitled to pre emption as intrinsically defec tive and Self contradictory
Finding no reasonable classifi cation it struck down 124 clauses first  secondly  and thirdly  of section 151a clauses first  secondly  and thirdly  of section 151b and clause first  secondly  and third ly  of section 151c and the entire section 152 as ultra vires the Constitution
The right of pre emption in regard to a co sharer was upheld on the consideration that if an outsider is introduced as a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common
The right of pre emp tion vested in a tenant was sustained on the ground that 1 and reform legislations in regard to the tiller of the soil to obtain proprietary right in the soil with a view to ensuring his continuance in possession of the land and consequently of his livelihood without threat or disturbance from the superior proprietor
The right of pre emption granted to a tenant was taken as another instance of a legislation aimed at protecting the tenant s interest in the land
Holding that the co sharers and the tenants constitut ed a distinct class by themselves the right of pre emption conferred on them was upheld as reasonable and in public interest
In taking this view strong reliance was placed on the ratio of the decision of this court in Bhau Ram vs
B Baijnath Singh  wherein the vires of a provision of the Rewa State Pre emption Act which conferred a right of pre emption based on vicinage and the right of preemption conferred on co sharers and the Punjab Pre emption Act 1913 were challenged on the ground of infraction of Article 191 f of the Constitu tion
In that case it was held that a right of pre emption by vicinage offended Article 191 f of the Constitution but a similar right conferred on co sharers was intra vires Article 1911 of the Constitution
In that case also this Court held that the right of pre emption vested in co shar ers was a reasonable restriction on the right to hold acquire or dispose of property conferred by Article 1911 of the Constitution
In Atam Prakash s case this Court therefore held that what was said about the right of pre emption granted to co sharers in relation to Article 1911 of the Constitution applied with equal force to justify the classification in relation to Articles 14 and 15 of the Constitution
After the surgery section 15 underwent at the hands of this Court removing the offending pans in Atarn Prakash s case what survives of section 15 is that in the case of sale of agricultural land and village immovable property by a sole owner the tenant alone can exercise the right of pre emption
Where the sale is of a share out of joint land or property and is not made by all the co sharers jointly only the other co sharers and the tenants can exercise the right of pre emption
Where the sale is of a land or proper ty owned jointly and is made by all the co sharers jointly the right to pre empt survives to the tenants only
Since in the present case we are concerned with sale by a single co sharer and not 125 by all the co sharers jointly the remaining part of section 151b with which we are concerned reads as under 15b
Persons in whom right of pre emption vests in respect of sales of agricultural land and village immovable property 1 The right of pre emption in respect of agricultural land and village immovable property shall vest Co where the sale is of a share out of joint land or property and is not made by all the co sharers jointly XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX Fourthly in the other co sharers Fifthly in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof Counsel for the appellant submitted that since the suit land belonged to more than one co sharer and had not been sold jointly by all the co sharers he as a co sharer was entitled to claim the right of pre emption under clause fourthly  of section 151b
A similar question came up before this Court in Jagdish  Ors
vs Nathi Mal Kejriwal  0rs
   wherein a two judge Bench of this Court negatived the contention in the follow ing words In order to understand the meaning of the words other co sharers  in Section 151b we have to read the Act as it stood before the decision in Atam Prakash s case  supra
It is seen that the expression other co sharers  in clause Fourthly  of Section 151b of the Act refers to only those co sharers who do not fail under clause First  or Secondly  or Thirdly  of Section 151b of the Act
Since the petitioners admittedly fall either under clause First  or under clause Secondly  of Section 151b of the Act they are clearly outside the scope of clause Fourthly 
Therefore the petition ers cannot claim the right of pre emption under clause Fourthly  We do not therefore find any substance in this contention  In the present case also the appellant seeks to exercise the right of pre emption as a co sharer ie father s broth er s son of the vendors
His contention is that he falls within the expression other co sharers  in clause Fourthly  of section 151b and is therefore entitled to exercisee the right of pre emption conferred on him by that provision
The courts below 126 have negatived this contention solely on the ground that it cannot stand after the pronouncement of this Court in the case of Jagdish supra
Counsel for the appellant however contended that the interpretation placed by the two judge Bench on the expression other co sharers  in section 151b requires reconsideration as it leads to certain anomalous situation eg a sister who is a co sharer can claim pre emption while her brother cannot or a daughter s daughter of the vendor can claim pre emption but not the son
The history of the Punjab Pre emption law may be kept in mind to understand the purport of clause Fourthly  of section 151b of the Act
Under the Punjab Pre emption Act 1905 the corresponding provision section 12 con ferred a right of pre emption in the case of a sale of a share of such land or properly held jointly firstly in the lineal discendents of the vendor in male line in order of succession secondly in the co sharers if any who are agnates in order of succession thirdly in the persons described in sub clause a ie in persons who but for such sale would be entitled to inherit the properly in the event of his or their decease in order of succession and fourth ly in the co sharers jointly or severally
It will be noticed that priority for the exercise of the right owes statutorily fixed and even in the case of those falling within the same class the exercise of right was regulated by the use of the expression in order of succession 
The 1905 Act was repealed and replaced by the 1913 Act
Accord ing to section 15 of this Act before its amendment in1960 in the case of sale of a share out of joint land or proper ty the right of preemption was conferred firstly on the lineal descendents of the vendor in order of succession secondly in the co sharers if any who are agnates in order of succession thirdly in persons not included under firstly or secondly above in order of succession who but for such sale would be entitled on death of the vendor to inherit the land or property sold and fourthly in the co sharers
Section 15 after its amendment in 1960 provided that where the sale is of a share out of the joint land or property and is not by all the co sharers jointly the right of pre emption was vested first in the sons or daughters or son s son or daughter s sons of the vendor or vendors Secondly in the brothers or brother s sons of the vendor or vendors Thirdly in the father s brother or father s broth er s sons of the vendor or vendors Fourthly in the other co sharers and Fifthly n the tenants
Read in the context it becomes clear that the legislature desired to confer the right of pre emption on specified family members of the vendor or vendors in the first three clauses of section 151b and with a view to covering all the remaining co sharers not specifically mentioned the preceding clauses it used the expression other co sharers  in the fourth clause which was meant to serve as a residuary clause to ensure 127 that no co sharer is left out
Since this Court found certain intrinsic contradictions in the list of relatives covered by the first three clauses it saw no justification for the classification contained in the said provision conferring a right based on consanguinity and therefore struck down those clausesas discriminatory and violative of Articles 14 and 15 of the Constitution
At the same time it upheld the right conferred on co sharers for reasons stated earlier
Thus the purport of Atam Prakash s case supra was that while co sharers were entitled to pre empt the confer ment of that right on certain kinsfolk based on the rule of consanguinity being a relic of the feudal past could not be tolerated
This Court never intended to exclude any speci fied co owners from the scope of clause fourthly of section 151b of the Act
Once conferment of the right of pre emption in favour of co sharers was considered to be a reasonable restriction on the right to hold acquire and dispose of property under Article 191 f the same re striction was held to be valid when tested on the touchstone of Articles 14 or 15 of the Constitution
We find it diffi cult to hold that the purport of the of Court s decision in Attam Prakash s case was to deny the right of pre emption to those relative or relatives of the vendor or vendors who were specified in the erstwhile first three clauses of section 151b even if they happen to be co sharers
The expression other co sharers  was used in the fourth clause of the said provision to ensure that no co sharer was left out or omitted and not to deny the right to kinstolk coshar ers covered by the preceding clauses
If the preceding clauses were not erased from the statute book as unconstitu tional the kinsfolk would have exercised the right in the order of preference for which no justification was found
The relations in the first three clauses of section 151b may or may not be co sharers The use of the expression other  in clause fourthly conveys the possibility of their being co sharer also
What this Court disapproved as offen sive to Articles 14 and 15 is the classification based on consanguinity and not on co ownership
The right of pre emption to co sharers is held to be intra vires the Consti tution Therefore it is difficult to hold that this Court intended to deny the right of pre emption of those kinsfolk even if they happened to be co sharers
That would clearly be discriminatory
With respect therefore we find it difficult to approve of the interpretation placed on clause fourthly  of section 151Co of the Act by this Court in Jagdish s case
We think on a proper construction of that clause after the preceding clauses were held to be unconsti tutional the word other  preceding
the word co sharer  is rendered redundant
We therefore do not approve the ratio of Jagdish s case and overrule the same
In the result the appeal succeeds he decision of all the three courts below dismissing the appellant s suit is set aside and the suit is decreed
128 We direct that on the appellant plaintiff depositing the entire amount of sale price together with the amount needed for the stamp duty for the execution of the conveyance in his favour within three months from today the purchaser respondent No 1 shah within one month of such deposit execute a conveyance of the land ie his share therein derived from his vendors in favour of the appellant and shall deliver possession thereof to the appellant
If the respondent No 1 fails to do so the Court shall appoint a Commissioner who shall execute the conveyance on behalf of the respondent No 1 and the Court shall put the appellant in possession of the suit land
There will be no order as to costs throughout
VPR Appeal allowed


Summary:
The appellant seeking to exercise the right of pre emption as a co sharer ie father s brother s son of the vendors contended that he fell within the expression other co sharers  in clause Fourthly  of section 151b of the Punjab pre emption Act 1913 and was therefore entitled to exercise the right of pre emption
The courts below negatived his contention following the decision of this Court in Jagdish  Ors
vs Nathi Mal Kej riwal  Ors
  In this appeal filed by special leave the appellant submitted that since the suit land belonged to more than one co sharer and had not been sold jointly by all the co shar ers he as a co sharer as entitled to claim the right of pre emption under clause fourthly of section 151b and that in Jagdish s case the interpretation placed on the expression other co shar ers  in section 151b required reconsideration
Allowing the appeal this Court HELD 1
According to section 15 of the Act before its amendment in 1960 in the case of sale of share out of joint land or property the right of pre emption was conferred firstly on the lineal descendants of the vendor in order of succession secondly in the co sharers if any who are agnates in order of succession thirdly in persons not included under firstly or secondly above in order of suc cession who but for such sale would be entitled on death of the 120 vendor to inherit the land or property sold and fourthly in the cosharers
126 E F 2
Section 15 after its amendment in 1960 provided that where the sale is of a share out of the joint land or property and is not by all the co sharers jointly the right of pre emption was vested first in the sons or daughters or son s son or daughter s sons of the vendor or vendors Secondly in the brothers or brother s sons of the vendor or vendors Thirdly in the father s brother or father s broth er s sons of the vendor or vendors Fourthly in the other cosharers and Fifthly in the tenants
126 F G 3
The legislature desired to confer the right of pre emption on specified family members of the vendor or vendors in the first three clauses of section 151b and with a view to covering all the remaining co sharers not specifi cally mentioned in the preceding clauses it used the expres sion other co sharers  in the fourth clause which was meant to serve as a residuary clause to ensure that no cosharer is left out
126 G 127 A 4
The expression other co sharers  was used in the fourth clause of the said provision to ensure that no co sharer was left out or omitted and not to deny the right to kinsfolk co sharers covered by the preceding clauses
If the preceding clauses were not erased from the statute book as unconstitutional the kinsfolk would have exercised the right in the order of preference for which no justification was found
The relations in the first three clauses of section 151b may or may not be co sharers
The use of the ex pression other  in clause fourthly conveys the possibility of their being cosharer also
127 D F 5
The purport of Atam Prakash s case was that while cosharers were entitled to pre empt the conferment of that right on certain kinsfolk based on the rule of consanguinity being a relic of the feudal past could not be tolerated
This Court never intended to exclude any specified co owners from the scope of clause fourthly of section 151b of the Act
Once conferment of the right of preemption in favour of co sharers was considered to be a reasonable restriction on the right to hold acquire and dispose of property under Article 191f the same restriction was held to be valid when tested on the touchstone of Articles 14 or 15 of the Constitution
127 B D 121 6
What this Court disapproved as offensive to Articles 14 and 15 is the classification based on consanguinity and not on co ownership
The right of pre emption to co sharers is held to be intra vires the Constitution
Therefore it is difficult to hold that this Court intended to deny the right of pre emption of those kinsfolk even if they happened to be co sharers That would clearly be discriminatory
127 F G 7
The interpretation placed on clause fourthly  of section 151b of the Act by this court in Jagdish s case was not correct on a proper construction of that clause after the preceding clause were held to be unconstitutional the word other  preceding the word co sharer  is rendered redundant
127 G Ram Sarup vs Munshi  Ors     Atam Prakash vs State of Haryana  Ors     Bhau Ram vs
B Baijnath Singh    referred to
Jagdish  Ors
vs Nathi Mal Kejriwal  Ors   over ruled