R.S.A.No.907 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.907 of 1985 Date of Decision:30.09.2008 Kalyan Singh .....Appellant versus Ishwar Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr.H.S.Gill, Senior Advocate with, Mr.R.K.Dhiman, Advocate, for the appellant. Mr.R.S.Chahar, Advocate, for the respondents. **** AJAY KUMAR MITTAL, J. The unsuccessful plaintiff has filed the present regular second appeal in this Court laying challenge to the judgment and decree dated 24.05.1983 passed by the trial Court which in appeal was affirmed by the lower appellate Court vide judgment and decree dated 15.12.1984. The plaintiff filed a suit for possession by way of pre-emption in respect of the agricultural land measuring 22 Kanals 12 Marlas situated in the revenue estate of village Nahar, owned by Ran Singh son of Amar Singh, who sold the same to the defendants-vendees vide registered sale deed dated 13.07.1979 for a consideration of Rs.8,000/-. It was pleaded that the sale consideration was wrongly mentioned in the sale deed as Rs.10,000/- in order to defeat the right of the plaintiff. The plaintiff claimed R.S.A.No.907 of 1985 2 the right of pre-emption on the ground that he was the son of the vendor, Ran Singh, and the defendants-vendees were strangers and, therefore, the plaintiff had a superior right of pre-emption. However, the defendants contested the claim of the plaintiff by filing a joint written statement and raising various preliminary objections therein. It was pleaded that the sale of the suit land took place for Rs.10,000/- and that the plaintiff was not the son of Ran Singh vendor and, therefore, he had no right to pre-empt the sale in favour of the defendants. By denying the other averments made in the plaint, a prayer for dismissal of the suit was made. On the pleadings of the parties, the trial Court framed various issues. Issues No.1 and 9-A which are material read thus:- “1. Whether the plaintiff has a superior right of pre- emption in respect of the suit land?OPP 9-A Whether the suit property is coparcenary property and plaintiff and vendor Ran Singh are members of the Hindu Joint Family, if so to what effect?OPD” The trial court on appreciation of the oral as well as the documentary evidence led by the parties while adjudicating issue No.1 came to the conclusion that the plaintiff had failed to prove that he was the son of the vendor, Ran Singh, and as such he had no superior right to pre- empt and challenge the sale in question. Further, it was held that the sale of the suit land took place for Rs.10,000/-. The trial Court under issue No.9-A also held the suit property to be joint Hindu family property and held the suit to be barred by the provisions of Section 10 of the Punjab Pre- emption Act, 1913 (in short the 'Act'). Accordingly, the trial court vide judgment and decree dated 24.5.1983 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff took the matter in appeal and the lower appellate Court while reversing the finding of the trial Court on issue No.1 R.S.A.No.907 of 1985 3 held the plaintiff to be son of the vendor vide judgment and decree dated 15.12.1984 whereas affirmed the findings recorded by the trial Court regarding suit property to be joint Hindu family property and dismissed the appeal. I have heard the learned counsel for the parties and perused the record with their assistance. The appeal does not carry any weight and merits dismissal for more than one reasons. It is not in dispute that the right of pre-emption on the basis of consanguinity i.e., son of the vendor, was held to be ultra vires the Constitution by the Hon'ble Apex Court in the case of Atam Prakash versus State of Haryana and others, AIR 1986 SC 859. The relevant observations of the Apex Court as contained in para 13 of the judgment are as under:- “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 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', R.S.A.No.907 of 1985 4 'Secondly' and 'Thirdly' of S.15(1)(c) and the whole of section 15(2) are, therefore, declared ultra vires the Constitution”. Therefore, the plaintiff who is held to be son of the vendor, Ran Singh, can not claim any superior right of pre-emption. Still further adverting to the next submission, it would be profitable to refer to Section 10 of the Act which reads thus:- “Section 10. Party to alienation cannot claim pre- emption. In case of sale, by joint owners, no party to such sale, shall be permitted to claim a right of pre-emption”. A bare reading of the aforesaid provision leaves no doubt that in case the sale is made by joint owners, no party to such sale can claim the right of pre-emption. It cannot be disputed that when the property is joint Hindu family property then every co-parcener in the suit property is a joint owner and when 'karta' or 'manager' thereof sells the property, sale is not only regarding his own share but he sells the interest of members of the family as well. In such a situation, a member of the Hindu undivided family is held to be a party to the sale and no member can sue for pre-emption of that sale. The concurrent finding recorded by the Courts below that the suit property was joint Hindu family property, disentitles the plaintiff to claim superior right of pre-emption in view of Section 10 of the Act. In view of the above, there is no merit in this appeal and the same is dismissed. There shall, however, be no order as to costs. September 30, 2008 (AJAY KUMAR MITTAL) seema JUDGE