Ayyangar, J. - (1.) Do the words "son or daughter of such female" occurring in S. 15 (2) (b) of the Punjab Pre-emption Act, 1913 as amended by Act X of 1960 include an illegitimate son or illegitimate daughter of such female is the only question that arises in this appeal by special leave.
(2.) The appellants are the illegitimate son and daughter of one Sardarni Prem Prakash Kaur. By a registered deed of sale dated December 1, 1956 the said lady sold 18 bighas, 1 biswas and 5 1/2 biswansis of agricultural land for a sum of Rs. 10,000/- to the respondents. The appellants filed a suit to pre-empt this sale. There was some dispute about the consideration actually paid but we are not now concerned with it. Both the trial court as well as the District Court on appeal granted to the appellants a decree for pre-emption, though to a limited extent. The respondents filed a second appeal to the High Court and the learned Judges, by the judgment now under appeal, directed the dismissal of the suit on the ground that the appellants were not comprehended within the class of persons who were entitled to pre-emption under S. 15 (2) (b) of the Punjab Pre-emption Act as it now stands under the amendment effected by Act X of 1960. It is from this judgment that, by special leave, the present appeal has been brought.
(3.) Mr. Bishan Narain, learned Counsel for the appellants submitted to us that the provision in S. 15 of the Pre-emption Act must be read in conjunction with the Hindu Succession Act, 1956 which made provision for the devolution of property belonging to a female owner and that as under the latter enactment illegitimate children of a Hindu female were entitled to succeed to her property, it must be held that when the Punjab legislature used in 1960 the expression 'son or daughter' it meant a son or a daughter who would be entitled to succeed as an heir of a Hindu female. We are unable to accept this submission of learned Counsel. Section 15 whose construction calls for consideration reads as follows: "15. Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immoveable 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 owner- 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 fathers brother or father's brothers son of the vendor; FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof: (b) 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 sons' sons or daughters' sons of the vendor or vendors; SECONDLY, in the brothers or brother's sons of the vendor or the vendors; THIRDLY, in the fathers brothers 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-sharers jointly- 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 property sold or a part thereof. (2) Notwithstanding anything contained 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 father, the right of pre-emption shall vest.- FIRST, in the son or daughter of such female; SECONDLY, in the husband's brother or husband's brother's son of such female". The submission of learned Counsel virtually amounts to this that in order to construe the words used in S. 15 one should travel beyond the enactment and ascertain the class of persons who are entitled under the Hindu succession Act to succeed as the heirs of the intestate vendor. Even a cursory examination would show that this construction is untenable and that the framers of the Act did not proceed on any such theory. Take, for instance, the case where a female succeeds to property through her father or brother dealt with in S. 15 (2) (a) of the Pre-emption Act. Her heir under the Hindu succession Act would be, if the property was inherited from her father, her son or daughter (including the children of any predeceased son or, daughter) and in their absence the heirs of the father. If, however, the property was inherited from her brother, the devolution is different (vide S. 15 (1) and (2)). The devolution provided by S. 15 (2) (a) (i) of the Pre-emption Act is different and confers the right to Pre-empt on her brother or her brother's son. The theory, therefore, that we should resort to the line of heirs as in an intestate succession under the Hindu succession Act or, for the matter of that, to any other system of common Law or statute applicable to the vendor is obviously untenable. Pursuing this line of reasoning a little, it was not disputed that if the female vendor were a Christian by religion, only her legitimate issue would be denoted by these words. As it is common ground that the statutory right of pre-emption conferred by S. 15 is as much applicable to a Christian owner of property as to a Hindu, it would be seen that the construction of the words of this statute of general application would be made to depend on the religion to which the vendor belonged, and in fact would vary with any change made by statute in the law of intestate succession as applicable to different communities. The position that would arise on a conversion of the vendor to a different faith, with a different personal law as to succession would bring out in bold relief the unsustainability of the submission has on the peculiarities of the personal law as to intestate succession applicable to the vendor.;