Case: Ram Sarup Vs. Munshi And Others(And Connected Appeals)

The facts giving rise to the appeal are briefly as follows: The 5th and 6th respondents before us owned certain agricultural land in village Dugri which they sold to the appellants by a deed dated April 25, 1957. Respondents 1 to 4 instituted a suit against the appellants to which the vendor-respondents 5 and 6 were also impleaded as co- defendants. The right of pre-emption was based on the plaintiffs being the nearest collaterals of the vendors and heirs according to the rule of succession. There were certain points of dispute on the facts but these are not now material and it is sufficient to state that the suit was decreed by the Subordinate Judge on December 10, 1958. This judgment in favour of respondents 1 to 4 was affirmed by the District Judge on appeal and on further appeal by the High Court. It is from this judgment and decree of the High Court that the vendees who are the appellants before us have brought the matter to this Court.3. The appellants were five in number. They fell into two groups constituted respectively by the 1st and 2nd appellants who are brothers and by appellants 3, 4 and 5. While the appeal was pending in this Court the 1st appellant- Mehar Singh died on May 18, 1960 leaving a widow and five children- four daughters and a son, as his heirs. No application was however, made to bring on record the legal representatives of the deceased 1st appellant - Mehar Singh and learned Counsel appearing for the other four appellants informed the office that the legal representatives were not being brought on record and that he would proceed with the appeal on behalf of the four surviving appellants.4. At the hearing of the appeal learned Counsel for the respondents submitted that the appeal ought to be dismissed as incompetent since the same had abated on the death of the first appellant without his legal representatives being brought on record. Learned Counsel for the appellants, however, contended that whatever might be the position as regards the share to which Mehar Singh was entitled in the property purchased, the interest of the deceased was distinct and separate from that of the others and that the abatement could be in any event only partial and would not affect the continuance of the appeal by the surviving appellants at least as regards their share in the property. As the deed of sale under which the appellants purchased the property was not among the printed records of this Court, the appeal was adjourned in order to enable learned Counsel for the appellants to produce it and substantiate his contention that the interest of the deceased Mehar Singh was distinct and separate. An English translation of the deed of sale has now been produced before us and a perusal of it indicates that the submission made on behalf of the appellants is not sustainable. The consideration for the sale is a sum of Rs. 22,750/- and the conveyance recites that Mehar Singh and the second appellant had paid one half amounting to Rs. 11,375/- while the other three appellants had paid the other half.It is therefore not a case of a sale of any separated item of property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. It is clear law that there can be no partial pre-emption because pre-emption is the substitution of the pre-emptor in place of the vendee and if the decree in favour of the pre-emptors in respect of the share of the deceased Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for pre-emption in so far as appellants 2 to 5 are concerned is interfered with.Where a decree is a joint and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated. It is not necessary to cite authority for so obvious a position but we might refer to the decision of this Court in Jhanda Singh v Gurmukh Singh, Civil Appeal No. 344 of 1956 D/10-4-1962 (SC). The result is that the appeal fails as having abated and is dismissed with costs.The following few facts are necessary to be stated to appreciate the manner in which the question arises. One Ram Nath sold certain agricultural land of an area of about 65 bighas in village Durjanpur in District Sangrur of Punjab to the second respondent Pooran by a deed of sale dated December 12, 1957. The vendee-Pooran-sold the land he had purchased in favour of Ram Sarup-appellant before us. Subsequently Munshi- the first respondent- brought a suit - Suit 297 of 1958- in the Court of the Subordinate Judge First Class at Narwana stating that he was the son of vendor Ram Nath and claiming pre-emption under S.15 of the Act. There were rival claims for pre-empting the same property and another suit was filed in regard to it which was tried along with the suit by Munshi, but this failed and is no longer of relevance. The main contest to the suit by Munshi was based upon a denial of the fact that he was the son of Ram Nath. This issue was found in favour of the respondent by the Subordinate Judge who decreed the suit, which Judgment was confirmed successively by the District Judge on appeal and thereafter by the High Court on second appeal. It was therefore common ground that if S.I5(a) was constitutionally valid, the sale by Ram Nath was subject to the right of Munshi to pre-empt and that consequently his suit was properly decreed. The constitutional validity of S.15 was not contested before the High Court because of the decision of a Full Bench of that Court which had upheld its validity. It was only at the stage of an application for a review of the judgment of the High Court that this point was raised but the learned Judges rejected it and it was on the ground of this constitutional point that special leave was granted and that is the only point for consideration in this appeal.The facts giving rise to this appeal are briefly as follows: The appellant Dalip Singh purchased under a deed dated June 1, 1957 agricultural land measuring 98 bighas and 10 biswas situated in village Bailerkha in district Sangrur under a registered deed of sale. The vendors were Nihal Singh Wazir Singh and Gurdiyal Singh who are respondents 2 to 4 before us Sunder Singh-brother of respondents 2 and 3 and uncle of the 4th respondent filed a suit in the Court of the Sub-Judge, Narwana for pre-emption basing his claim under S. 15(a) of theappeal arises out of a suit filed by the first respondent as plaintiff for pre-emption of certain agricultural land in village Fatehbad in Amritsar District. The sale which gale rise to the suit was under a deed dated December 29,1949 in favour of the appellant Dayal Singh. The claim to pre-empt was based on S. 15(c) "thirdly of the Punjab Preemption Act, 1913 which has already been set out. The expression "estate which is used in cl. (c) thirdly is not defined by the Act but by reason of its S. 3(6) the definition in S. 3 of the Punjab Land Revenue Act, 1887 is attracted to it. Turning now to S. 3 of the Punjab Land Revenue Act (Act XVII of 1887), it defines an estate as meaning inter alia. Many area for which a separate record-of-rights has beenthe case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial Court on November 8, 1951 and an appeal and second appeal therefrom were also dismissed. It was from this judgment of the High Court that this appeal has been brought and the principal point on which leave was granted related to the constitutionality of the provision in S. 15 of the Pre-emption Act upon which the respondent based his claim to pre-empt.

Reasoning: With the repeal of the Punjab Alienation of Land Act, 1900 it is manifest that S.14 would lose all significance but this does not help in any manner, the contentions urged by learned Counsel for the appellant. It would be seen that S.14 is restrictive, in that in the case of the alienations by persons referred to in that section the right of pre-emption is conferred upon a limited group. With the repeal of the Punjab Alienation of Land Act, 1900 the restriction imposed by S. 14 as regards the availability of the right of pre-emption to particular agricultural tribes would disappear. In other words, the effect of the removal of the limitation of S.14 would only be that the opening words of S.15 cease to operate. In such circumstances S.14 would lose all significance because the post-Constitution law does not recognise membership of tribes as conferring any special rights and consequently the elimination of S. 14 would leave S.15 without the limitation originally imposed upon it. In the same manner the restriction imposed upon the passing of decrees by S.23 could also not operate after the repeal of the Punjab Alienation of Land Act but that would leave the Court with an unfettered power to grant decrees under the provisions of the Act. i.e., without the limitations imposed by S.23.13. We are therefore clearly of the opinion that neither the repeal of the Punjab Alienation of Land Act, 1900 nor the consequential removal of the letters imposed by Ss.14 and 23 have the effect of rendering the substantive provision contained in S.15 not available to those who satisfy its terms. In these circumstances we have necessarily to consider the main question raised by learned counsel for the appellant, viz, that the rights conferred upon the pre-emptor is an unreasonable restriction on the right of vendors "to hold and dispose of property", and of prospective vendees "to acquire property" guaranteed to citizens of India by Art. 19(1) (f) of thewe see some force in this submission of learned Counsel we are unable to accept it as a final and conclusive answer to the argument against the reasonableness of the provision for we find that in the schemes for rehabilitation of the refugees the principle of the integrity of the village community and the need to maintain some degree of cohesion as regards the population in each village has been observed and, indeed, forms the basis of the methods by which different groups of refugees were settled in various parts of the Punjab. It has thus been possible to reconcile somewhat the needs of the refugees being settled in India, with the preservation of the integrity of the village community.No doubt, the son and the other members of the family would not have been entitled to a present interest in the property alienated and consequently would not have a right to prevent the alienation (in which event, however, it is needless to add that a right to pre-empt was wholly unnecessary as a means of preserving the property), but they would have a legitimate expectation of succeeding to the property- an expectation founded on and promoted by the consciousness of the community. If the social consciousness did engender such feelings, and taking into account the very strong sentimental value that is attached to the continued possession of family property in the Punjab, it could not be said that the restriction-on the right of free alienation imposed by S.15(2) (a) (sic. S.15(1) (a)?) limited as it is to the small class of near relations of the vendor is either unreasonable or not in the interest of the generalis manifest that even under the amended S. 15 a person in the position of the first respondent has a right to pre-empt. It would be seen that under S. 15(a), as it originally stood, the right of pre-emption is conferred upon persons who would succeed as heir to the vendor in the event of his death. In other words, pre-emption in such cases is the grant of an option to the heirs to retain property in the family.As we have already pointed out in dealing with the claim by a vendors son in Appeal 139 of 1961, we consider that the provisions contained in S. 15 (a), as it originally stood, as well as in the modified form in which it has been re-enacted do not transgress the limits of reasonableness required by Art. 19(5) of the Constitution. As the constitutionality of S. 15(a) was the only ground which was or could be canvassed before us in this appeal and as we are rejecting it, it follows that the appeal fails.Thus it will be seen that an "estate" is a unit of assessment and there is a joint ant several liability on persons owning land within the "estate" to pay the entire assessment due on the estate. Thus though it is not really the case of a co-sharer, it is somewhat akin to that of a co-sharer because of the joint liability for payment of land revenue. We therefore consider that the restriction on the right of a vendor in such a case is a reasonable one and not repugnant to Art. 19 of the Constitution. As learned Counsel for the appellant desired to have time to ascertain whether there had been a notification of the Local Government such as is referred to in S. 61 of the Punjab Land Revenue Code, we adjourned the case to enable him to produce the notification, if there was one, and we were informed that there waswe agree that there is a presumption against the retrospective operation of a statute and also the related principle that a statute will not be construed to have a greater retrospective operation than its language renders necessary, we consider that in the present case the language used in S. 31 is plain and comprehensive so as to require an appellate court to give effect to the substantive provisions of the Amending Act whether the appeal before it is one against a decree granting pre-emption or one refusing that relief. The decision of the Federal Court in 1940 FCR 84: (AIR 1941 FC 5  ) on which learned counsel for the appellant relied fully covers this case. The question there raised related to the duty of the Federal Court when an amending Act enacted after the decree appealed from was passed adversely interfered with the rights of the respondent before the Court. The learned Judges held that the provisions of the Act were clearly retrospective and should be applied to the decree which was the subject-matter of appeal before it and the appeal was accordingly allowed and remitted to the High Court for effect being given to the new legislation.In particular learned Counsel stressed the fact that unlike in S. 31 of the Act now under consideration, in the Bihar Act there were specific references to "appeals" and "revisions" and that this made a difference. But in our opinion this makes no difference since it is admitted that S. 31 even according to the respondent has to be given effect, to not merely by a trial Court but also by an appellate Court, only learned Counsel could urge that the appellate Court would give effect to the Amending Act only in cases where the trial Court has refused a decree for pre-emption. No distinction can, therefore, be rested on the ground that the Bihar Act specifically referred to Appeals and "revisions" seeing that the relevant operative words in S. 7 of the Bihar Act were "no Court shall pass a decree" words which occur in S. 31 of the Act as well. On the other hand the reasoning of the learned Judges of the Court which was based on the nature of an appeal under the Indian procedural law as a rehearing and a court of appeal being not a court of error merely, and the view expressed that when an appeal was filed the finality which attached to the decree of the trial Court disappeared, all these lines of reasoning point to the fact that even when an appellate court dismisses an appeal it also is passing a decree. In this connection we consider that the reasoning and the conclusion of the Division Bench of the Punjab High Court in Ram Lal v. Raja Ram, 1960-62 Pun LR 291 correctly sets out the principles underlying the scope of an appeal as well as the proper construction of S. 31 of the Amending Act.