- (1.) By this judgment I shall dispose of Regular Second Appeals Nos. 748 and 973 of 1970 which have arisen from a single suit for possession of land by pre-emption in the following way. Bakhtawar Lal was the sole owner of land measuring 298 Kanals 17 Marlas situated in village Farrukhnagar out of which he sold an area measuring 288 Kanals being 5760/5977 share in his entire holding which consisted of Khewat No. 41, by means of sale deed Exhibit D.4. His son Kesho Dayal (defendant No. 2) and his daughters Kalawati and Sushila Devi (defendants Nos. 4 and 8 respectively) brought a suit for pre-emption of the area which was decreed. After his death Bakhtawar Lal's unsold land was inherited by his widow, sons and daughters in equal shares. All of them, except his daughter Sharbati (plaintiff No. 1), effected a sale of 88 Kanals 13 Marlas of land being an undivided 1773/1781 share in an area measuring 89 Kanals I Marla forming part of their joint holding by means of sale deed Exhibit D.1 in favour of Ram Kishan (defendant No. 1). This is the sale now sought to be pre-empted. The relationship between the plaintiffs and the vendors as well as the manner in which the latter and plaintiff No. 1 acquired the said area of 89 Kanals 1 Marla appear in the following pedigree-table : Baktawar Lal=Nangi Devi, Defendant No. 6 (8/1781 share acquired by inheritance) Kesho Dayal Defendant No. 2 (8/1781 share acquired by inheritance & 572/1781 share acquired by pre-emption. Total 580/1781 share). Din Dayal Defendant No. 3 (8/1781 share acquired by inheritance). Kalawati Defendant No. 4 (8/1781 share acquired by inheritance & 573/1871 share acquired by pre-imption. Total 581/1781 share). Sumitra Plaintiff No. 2. Satyawati Defendant No. 5 (8/1781 share acuqired by inheritance). Basanti Defendant No. 7 (8/1781 share acquired by inheritance). Sushila Devi Defendant No. 8 (8/1781 share acquired by inheritance & 572/1781 share acquired by pre-emption. Total 580/1781 share). Sharbati Plaintiff No. 1 (8/1781 share acquired by inheritance). The trial Court decreed the suit in its entirety holding that Sumitra (plaintiff No. 2) was entitled to pre-empt the sale insofar as it comprised land belonging to her mother Kalawati (defendant No. 4) and that Sharbati (plaintiff No. 1) had the right to pre-empt the entire sale as a co-sharer but that in respect of that part of the land to which the right of pre-emption of plaintiff No. 2 extended, her (plaintiff No. 1's) right would accrue only if plaintiff No. 2 failed to deposit in Court the amount found due from her in respect of her right of pre-emption. The vendee instituted an appeal against the decree of the trial Court and the same was accepted in part by Shri Adish Kumar Jain, Additional District Judge, Gurgaon, on the 11th of February, 1970. It was held that in respect of the 8/1781 share which Kalawati (defendant No. 4) had inherited from her father, the case was governed by sub-section (2) of Section 15 of the Punjab Pre-emption Act, according to which plaintiff No. 2 being a daughter of the vendor had no right of pre-emption. The right of plaintiff No. 2 to pre-empt the sale in respect of that 573/1781 share sold by her mother which the latter had acquired by pre-emption, however, was upheld in view of sub-section (1) of that section. Plaintiff No. 2's right to pre-empt the sale was negatived in its entirety, it being held that neither of the plaintiffs had a right of pre-emption in respect of the 8/1781 share in the disputed land held by each of defendants Nos. 4 to 8 who were females and each of whom had acquired the same by inheritance from her husband or father, so that the case was governed to that extent by sub-section (2) aforesaid with the result that with regard to 40/1781 share in the land covered by the disputed sale, the vendee became a co-sharer alongwith plaintiff No. 1 on the date of the sale and the latter had no superior right of pre-emption as against him. The suit was, therefore, dismissed insofar as plaintiff No. 1 is concerned while the decree passed in favour of plaintiff No. 2 was altered so as to be restricted to 573/1781 share in the disputed land. Against the judgment and decree passed by the lower appellate Court Ram Kishan, the vendee-defendant, has filed Regular Second Appeal No. 748 of 1970 while the cross-appeal has been instituted on behalf of the two plaintiffs.
(2.) The only contention raised by Mr. Jain in support of the vendee's appeal was that Sumitra (plaintiff No. 2) was not a daughter of Kalawati (defendant No. 4). This contention is, however, not open to him in view of the fact that although it was raised in the vendee's written statement wherein an assertion was made challenging the averment in the plaint that Sumitra (plaintiff No. 2) was a daughter of Kalawati (defendant No. 4), it does not appear to have been put forward at any other stage of the proceedings in the two Courts below. It is, therefore, repelled.
(3.) The main argument of Mr. Gaur in support of the cross-appeal was that the bargain of the disputed sale must be looked upon as a whole and that the vendee could not be allowed to split it up to his advantage. This argument appears to me to be wholly untenable for the simple reason that the bargain of sale has got to be split up into two parts, one being that to which the right of pre-emption of the plaintiffs or any of them extends and the other that to which it does not. It was not disputed before me that 40/1781 share of the land covered by the sale sought to be pre-empted baying come to those five of the defendants who are females falls within the ambit of sub-section (2) of Section 15 of the Punjab Pre-emption Act and that neither of the plaintiffs can, therefore, pre-empt it. To retain that share thus the vendee has an absolute right and the same has to be separated from the land to which the right of pre-emption of either or both of the plaintiffs may be found to extend. It was conceded by Mr. Gaur that if the vendee had acquired that share by a separate sale, he could have defeated the right of plaintiff No. 1 to pre-empt the sale of the rest of the land on the ground of being a co-sharer, whether the acquisition was made after the sale of the rest or before it. If that be so, I do not see what difference it would make if the acquisition is made alongwith that of the land to which the right of the pre-emptor extends. It is well established that it is open to the vendee to defeat the right of the pre-emptor by clothing himself with a qualification equal or superior to that on the basis of which the pre-emptor comes into Court provided he does so before the pre-emptor files his suit, and in my opinion it is immaterial whether he does so through the transaction, a part of which is sought to be pre-empted, or by a separate transaction.;