R.S.A. No. 276 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 276 of 1985 Date of decision: 23.02.2010 Sube Singh ....Appellant Versus Ram Singh and another ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.K. Gupta, Advocate, for the appellant. Mr. Ashish Bansal, Advocate, for Mr. S.D. Bansal, Advocate, for the respondents. VINOD K. SHARMA, J.(ORAL) This regular second appeal, by the plaintiff/appellant, is directed against the judgment and decree dated 25.7.1984, passed by the learned Additional District Judge (II), Jind, vide which the suit for possession by way of pre-emption, filed by the plaintiff/appellant, was ordered to be dismissed. The plaintiff/appellant brought a suit for possession by way of pre-emption, on the pleading, that vendor Sheo Dayal was owner of the land measuring 17 kanals 16 marlas, which he sold to Ram Singh defendant/respondent No.1 for a sum of Rs.21,000/- (Rupees twenty one thousand only) vide sale deed dated 21.5.1980, though the fictitious sale consideration was shown as Rs.37,000/- (Rupees thirty seven thousand only). The plaintiff claimed his right of pre-emption being son of vendor. The case of the plaintiff/appellant, therefore, was, that he had a R.S.A. No. 276 of 1985 -2- superior right of pre-emption and was entitled to pre-empt the sale. The vendor did not contest the suit. The suit was contested by defendant/respondent No.1, by raising the objection that the suit was bad for partial pre-emption. The suit was said to be collusive and benami. It was also the case of defendant/respondent No.1, that the plaintiff was the consenting party to the sale. The relationship between the vendor and plaintiff were denied. It was asserted that the sale consideration paid was Rs.37,000/- (Rupees thirty seven thousand only) and not Rs.21,000/- (Rupees twenty one thousand only). It was also the case of defendant/respondent No.1, that the plaintiff/appellant and vendor constitute Joint Hindu Family and the land in dispute was coparcenary Joint Hindu Family property. The property was sold by karta of the family. It was also the case of defendant/respondent No.1, that after purchase a sum of Rs.13,540/- (Rupees thirteen thousand five hundred and forty only) was spent on the improvement of the land. It was claimed, that he was entitled to recover this amount in addition to sale consideration, stamp and registration charges. The learned trial Court, on the pleadings of the parties, framed the following issues: - “1. Whether the plaintiff has preferential right of pre- emption? OPP 2. Whether the sale price is not paid in good faith if issue No.2 is not proved, what was the market value of the suit land? OPP 3. Whether the suit is bad for partial pre-emption? OPD 4. Whether the plaintiff has no right of pre-emption as R.S.A. No. 276 of 1985 -3- alleged in para No.1 of the written statement? OPD. 5. Whether the vendee has incurred expenditure of stamp and registration fees, if so, to what effect? OPD. 6. Whether the defendant-vendee made improvements on the suit land, if so, to what effect? OPD. 7. Whether the suit is bad for being collusive? OPD 8. Relief.” The learned trial Court, on appreciation of evidence, recorded a finding, that the plaintiff/appellant being the son of vendor had a preferential right of pre-emption. However, on issue No.2, it was held, that the sale price was correctly depicted in the sale deed. The suit was held to be not bad for partial pre-emption. On issue No.4, it was held, that plaintiff had right to pre-empt the sale. The learned trial Court held that the vendee had incurred expenditure of stamp and registration. He was entitled to recover. However, on issue No.6, it was held, that defendant/respondent No.1 failed to prove, that any improvement made. The suit was decreed by holding it not to be collusive. Defendant/respondent No.1 challenged the decree passed by the learned trial Court. The learned lower appellate Court reversed the judgment and decree passed by the learned trial Court, by invoking the provisions of Section 10 of the Pre-emption Act, to hold, that the property being Joint Hindu Family property, the karta was to act on behalf of all. Therefore, the plaintiff being party as a coparcener, could not pre-empt the sale. The appeal was accordingly accepted and the suit was R.S.A. No. 276 of 1985 -4- dismissed. Mr. R.K. Gupta, learned counsel, appearing on behalf of the appellant, contends that this appeal raises the following substantial question of law: - “Whether the learned lower appellate Court could invoke the provisions of Section 10 of the Pre-emption Act, to non-suit the plaintiff/appellant in absence of any evidence to prove that the property was Joint Hindu Family coparcenary property?” In support of the substantial question of law, the learned counsel for the appellant vehemently contended, that the learned lower appellate Court, on the basis of conjectures and surmises, and without there being any evidence to prove held that the land was ancestral coparcenary property in the hands of vendor. In absence of positive evidence to prove that the property was HUF coparcenary property, could not have reverses the finding on issue No.4. The contention of the learned counsel for the appellant, therefore, was, that substantial question of law be answered in favour of the appellant and against the defendant/respondents. The judgment and decree of the learned trial Court be restored. There is no necessity to go into this question, as the Hon'ble Supreme Court in Atam Parkash Vs. State of Haryana and others, AIR 1986 Supreme Court 859(1), has been pleased to lay down as under: - “13. We are thus unable to find any justification for the classification contained in section 15 of the Punjab Pre- emption Act of the kinsfolk entitled to pre-emption. The right of pre-emption based on consanguinity is a relic of the feudal past. It is totally inconsistent with the constitutional scheme. It is inconsistent with modern ideas. The reasons which R.S.A. No. 276 of 1985 -5- justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to pre- emption is intrinsically defective and self-contradictory. There is , therefore, no reasonable classification and clauses 'First', 'Secondly' and, 'Thirdly' of S.15(1)(a), 'First', 'Secondly' and 'Thirdly' of S. 15(1)(b). Clauses 'First', 'Secondly' and, 'Thirdly' of S.15(1)(c) and the whole of section 15(2) are, therefore, declared ultra vires the Constitution.” Once, provisions of Section 15 of the Punjab Pre-emption Act, on which reliance was placed to seek pre-emption, was declared to be ultra vires the Constitution, the plaintiff/appellant did not have any right to seek possession by way of pre-emption, being son of the vendor. As the plaintiff/appellant had no right whatsoever to seek pre- emption, the decree passed by the learned lower appellate Court, therefore, deserves to be upheld, though on the ground that part of Section 15 on which reliance was placed to seek pre-emption was declared ultra vires the Constitution. There being no merit in this appeal, it is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 23, 2010 R.S.