- (1.) The defendant in the suit obtained leave of this court to appeal against the judgment and decree of the Regular Second Appeal No. 1456 of 1983 dated 16/8/1994 of the High court of Punjab and Haryana. The respondent 0m Prakash Chaudhary laid Suit No. 486 of 1981 in the court of Sub-Judge III, Kamal for a decree of preemption of agricultural land measuring 8 bighas 13 biswas comprising in Khawat No. 1575, Khatanu No. 3611 and Khasra Nos. 1658 (4-1 and 1659 (4-12 situated at Kasba Karnal in the State of Haryana. The respondent laid the suit on the pleadings in para 3 that his real brother vendor, Jai Singh, son of Abhe Ram had alienated the lands for a fictitious consideration of Rs. 32,000. 00 though the consideration of Rs. 26,000. 00 had been mentioned in the sale deed dated 21/5/1977 and he being the real brother has a superior right as a co-sharer to seek preemption of the lands from the appellant/vendee. The trial court, as stated earlier, decreed the suit on 31/3/1982. The Additional District Judge and the High court confirmed the decree of the trial court.
(2.) A Constitution bench of this court in Atani. Prakash v. State of Haryana, declared that the preemption right granted on the basis of consanguinity is archaic and a relic of the feudal past. It is totally inconsistent with the constitutional scheme and 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 in Section 15 is entitled to preemption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and clauses 'first', 'secondly' and 'thirdly' of Section 15 (l) (a) of the Preemption Act (I of 1913, 'first', 'secondly' and 'thirdly' of Section 15 (l) (b) and clauses 'first', 'secondly' and 'thirdly' of Section 15 (l) (c) and the whole of Section 15 (2 was ultra vires the Constitution. Therefore, the claim of the respondent that as a real brother of the vendor/the respondent is entitled to superior right of preemption is no longer legal and valid ground.
(3.) The question then is whether he is a co-sharer. It is seen that at one lime he was co-sharer but subsequently, brothers effected by mutual consent partition and the vendee/appellant's vendor Jai Singh was in separate possession and enjoyment of the property. Therefore, the mere mention in para 3 that he is a co- sharer is not independent of the right to vicinage. It would appear that the pleading was made on the basis that the respondent is not the real brother of the vendor of the appellant and on the basis thereof he claimed to be the co-sharer. Therefore, Mr G. K. Bansal, learned counsel for the respondent, sought to place reliance on the judgment of this court in Bhikha Ram v. Ram Sarup, where a bench of three Judges of this court held that a co-sharer has a right of preemption under clause 'fourthly' of Section 15 (l) (c) which was not declared ultra vires in Atam Prakash v. State of Haryana, and, therefore, he was entitled to seek preemption. It is true that independent of right of kinship, if there is any right as co-sharer, in other words, on the date when the alienation was made if the vendor of the appellant had remained in joint possession and enjoyment without any partition, he would become a co-sharer with the respondent independent of the right of kinship. But if the joint enjoyment is by virtue of the unity in possession and enjoyment as members of the joint family property then it is not an independent right of co-sharer but as a member of the joint family or coparcener. A member of the joint family has only right to an undivided share in the joint family property. That is not the case of the respondent. Under these circumstances the word co-owner used in the plaint is only in his right by virtueof right of kinship and his claim as a co-sharer was made. It is seen that the finding is that the superior right of preemption as a real brother of the vendor of the appellant was found in favour by the courts below. The second ground fails along with the first ground. As asked for by Mr G. K. Bansal, the remittance of the case does not arise. The appeal is allowed. In consequence, the suit of the respondent stands dismissed. But in the circumstances without costs.;