- (1.) The only question that arises for consideration in this second appeal filed by the plaintiff-pre-emptor against the judgment and decree of the District Judge, Sangrur, dated 19th March, 1969, whereby her suit was dismissed with costs is whether the plaintiff had a superior right of pre-emption. The land in dispute was sold by Gulab Kaur to Mohinder Singh, Joginder Singh, Inder Singh and Jharmal Singh sons of Dewan Singh through a registered sale deed dated 5th January, 1966. Mst. Biro plaintiff claimed the right to pre-empt the sale on the ground that she was the daughter of Partap Singh, the husband of Mst. Gulab Kaur. It was alleged that the vendees were not at all related to the vendor and that she had superior right to pre-empt. The suit was contested by the defendants and one of the pleas taken was that the plaintiff did not have a superior right of pre-emption. In view of this, an issue with regard to the right of the pre-emptor was framed. All the issues were decided in favour of the plaintiff-pre-emptor or against the defendants. The trial Court also found that the plaintiff had a superior right of pre-emption but this finding was set aside by the learned District Judge. Hence, this appeal to this Court.
(2.) The learned District Judge has found that Mst. Biro plaintiff was the daughter of Mst. Mangli who was the second wife of Partap Singh. It has further been admitted by Mst. Biro herself that Gulab Kaur was her step-mother. It is also not disputed that the property which is the subject-matter of the suit was inherited by Gulab Kaur from her son Kharait Singh.
(3.) The plaintiff claimed her right in the plaint in the following terms :- "That the plaintiff is the daughter of Partap Singh husband of defendant No. 5 Mst. Gulab Kaur and hence is the daughter of the husband of the vendor whereas the vendees-defend ant Nos. 1 to 4 are in no way related to Mst. Gulab Kaur, therefore, she has got a preferential right of pre-emption as compared with the vendees-defendant Nos. 1 to 4. In view of this averment it is clear that the plaintiff's claim was based on the ground of her being the daughter of Partap Singh and not on being the daughter of Gulab Kaur. The claim was correctly made as the plaintiff was in fact the daughter of Partap Singh from the second wife and not from Gulab Kaur. In order to succeed the plaintiff has to show that the land which was sold by Gulab Kaur had come to her from her husband Partap Singh and not merely from her son Kharait Singh. The plaintiff can only have a superior right of pre-emption if her case falls under clause (b) of sub-section (2) of Section 15 of the Punjab Pre-emption Act which read as under : "15 (2) Notwithstanding anything contained in sub-section (1) - (a) ... ... ... ... ... ... (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 husband of the female; Secondly, in the husband's brother or husband's son of such female." From a bare perusal of the above provision it is abundantly clear that the daughter of the husband of the female can only have a right of pre-emption if she succeeds in proving that the property which was sold by the female was held by her husband. If the property comes to her from her son it has further to be established that the son had inherited the land or property from his father. The learned appellate Court has found that there was no evidence to show that Gulab Kaur had inherited the property from Partap Singh. The oral evidence in this respect is of not much value and was rightly discarded by the learned appellate Court. Even in appeal before me no reference was made to oral evidence. As regards the documentary evidence, the defendant produced copy of jamabandi of the year 1962-63 in which in the column of ownership the name of Gulab Kaur, mother of Khariat Singh son of Partap Singh, is mentioned. From this document it cannot be inferred that the land in fact belonged to Partap Singh and had then been inherited from him by his son Kharait Singh before it came into the hands of Gulab Kaur. There is no other evidence on the record to establish that the land was ever held by Partap Singh and had been inherited from him by his son Kharait Singh. In the absence of evidence on this point the plaintiff cannot claim a right of pre-emption.;