KARNAIL SINGH Vs. ANIL KUMAR

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the High court of Punjab and Haryana dated 22/1/1985 made in RSA No. 3126 of 1984. The facts not in dispute are that Anil Kumar and the vendor of the appellant Neeru are brother and sister. Neeru sold the property in dispute to the appellant by a registered sale deed. Anil Kumar laid the suit for pre- emption under Section 15 (1 (b) clause secondly of the Punjab Pre-emption Act, 1913, (for short "the Act"). The trial court decreed the suit and it is confirmed by the appellate court. The second appeal was dismissed in limine. By then, this court in Atam Prakash v. State of Haryana declared sub-clauses (i) to (iii) of clause (1 of Section 15 (1 (b) of the Act as amended in 1960 as ultra vires Articles 14 and 15 of the Constitution. Consequently, the claim of the respondent on the basis of clause secondly of Section 15 (1 (a) having been declared to be ultra vires, this court granted leave.

(2.) In Atom Prakash case this court upheld the constitutional validity of clause fourthly which postulates entitlement of pre-emption by "other co-sharers". Subsequently, the questions whether the relations covered in clauses (i) to (iii) of Section 15 (1 are co-sharers under clause fourthly and whether they are entitled to the benefit of the pre-emption, were referred to a a bench of three Judges. In Bhikha Ram v. Ram Sarup this court considered the controversy and held that Section 15 after the amendment in 1960 provided that where the sale is of a share out of the joint property and is not by the co-sharers jointly, the right of pre-emption was vested fourthly in the "other co-sharers". It was further held that this court in Atom Prakash case did not intend to exclude any specified co-sharer from the scope of clause fourthly of Section 15 (l) (b) of the Act. It was concluded thus:

(3.) In view of the above declaration of law by this court, it is now concluded that even relations who would be otherwise not entitled under clauses (i) to (iii) of Section 15 (1 (b) of the Act would also become 'co- shaners' under clause fourthly. Being not a party to the sale transaction of joint property, they are entitled to claim pre-emption. It is not in dispute, as stated earlier, that the respondent Anil Kumar was not a party to the sale transaction executed by his sister Neeru. Therefore, he would be other co- sharer in clause fourthly of Ss. (1 (b) of Section 15 of the Act. As a consequence, he is entitled to pre-emption. Shri K. K. Mohan, learned counsel for the appellant, contended that there is no evidence to show that respondent Anil Kumar is a co-sharer. On the other hand, the recitals in the sale deed shows that there was a prior partition under which Neeru had obtained the property under sale towards her share and, therefore. Anil Kumar cannot be said to be a co-sharer. The learned counsel for the respondents has produced before us a document of the year 1974-75 whichwas already marked in the trial court which would show that they are the co- owners. In this view, we do not think that we will be justified to remit the matter for further evidence.