G.R.MAJITHIA, J. - (1.) THIS judgment disposes of R. S. A. Nos. 1920 and 1919 of 1987 and 1725 of 1988 and C. M. No. 13-C of 1994 in R. S. A. No. 1725 of 1988, as a common question of law arises for determination therein.
(2.) FACTS first :the property in dispute originally belonged to one Des Ram, resident of village Earona, District Rohtak. On the death of Des Ram, the property was inherited by his two daughters, viz. Smt. Dharmo and Smt. Ram Kaur. On her death, Smt. Dharmo was succeeded to by the proforma respondents, namely, Gordhan, Deep Chand, Khazan (sons) and Smt. Mam Kaur (Daughter ). Smt. Ram Kaur sold her share in the land to Rup Chand (appellant in R. S. A. No. 1919 of 1987 hereinafter referred to as the vendee) through registered sale deed dated May 26, 1983 for Rs. 25,000/ -. Children of Smt. Dharmo (since deceased) sold their share in the land to Smt. Chhotu (appellant in R. S. A. No. 1920 of 1987 - hereinafter referred to as the vendee) vide registered sale deed dated May 26, 1983, for Rs. 25,000/ -. Bijender Kumar alias Mool Chand, respondent No. 1 in R. S. No. 1920 of 1987 (hereinafter referred to as the plaintiff) filed two separate suits for possession by preemption claiming superior right of preemption on the ground that he was a co-sharer in the land in suit. The suits were decreed by the trial Judge vide judgments and decrees dated January 23, 1987. The judgments and decrees of the trial Judge were affirmed in appeal by the first appellate Court vide judgments and decrees dated February 6, 1987. Feeling aggrieved from the judgments and decrees of the first appellate Court, the vendees have assailed the same in this Court through R. S. A. Nos. 1920 and 1919 of 1987. 3. Smt. Bohti widow of Baru, resident of village Pai, Tehsil & District Kaithal sold land measuring 73 Kanals 9 Marias representing 1/3rd share to the defendant-appellants (hereinafter the vendees) vide registered sale deed dated December 26, 1985 for a sale consideration of Rs. 2,27,250/- Ram Dhari alias Dhara, plaintiff-respondent (hereinafter the plaintiff) claiming superior right of pre-emption being a co-sharer filed a suit for possession by way of pre-emption on July 23, 1986. The suit was decreed by the trial Judge on May 30, 1987, The judgment and decree of the trial Judge were affirmed in appeal by the first appellate Court vide judgment and decree dated June 2, 1988. The vendees have challenged the judgment and decree of the first appellate Court in R. S. A. No. 1725 of 19884. The only dispute raised by the vendees before the Courts below was that the provisions of Sub-section (2) of the Section 15 of the Punjab Pre-emption Act, 1913 (for short, the Act) override the provisions of Sub-section (1) of Section 15 and if a sale falls within both these Sub-sections, Sub-section (2) of Section 15 must prevail notwithstanding anything contained in Sub-section. (1 ). Thus, where the vendor was a female and she had succeeded to the land through her father or brother, the case will fall under Sub-section (2) of Section 15 and not under Sub-section (1) of Section 15 of the Act. The validity of Section 15 of the Act as amended by the Punjab Pre-emption (Amendment) Act, 1960 was challenged in the apex Court through a writ petition under Article 32 of the Constitution of India and the judgment is reported as Atom Prakash v. State of Haryana, (1986-1) 89 P. L. R. 329 (S. C ). The apex Court declared clauses 'first' 'secondly' and Thirdly' of Section 15 (1) (a) and 15 (1) (b) and clauses 'first' 'secondly' and 'thirdly' of Section 15 (1) (c) and the whole of Section 15 (2) of the Act as ultra vires the Constitution. The apex Court observed thus : " A scrutiny of the list of persons in whose favour the right of pre-emption is vested Under Section 15 reveals certain glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession. First we notice that neither the father nor the mother figures in the list though the father's brother does. The son's daughter and the daughter's daughter do not appear though the son's son and the daughter's son do. The sister and the sister's son are excluded though the brother and the brother's son are included. Thus relatives of the same degree are excluded either because they are women or because they are related through women. It is not as if women and those related through women are altogether excluded because the daughter and daughter's son are included. If the daughter is to he treated on a par with the son and the daughter's son is treated on a par with the son's son it does not appear logical why the father's son (brother) should be included and not the father's daughter (sister ). These are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in Section 15 as entitled to the right of pre-emption. It is understandable that why a son's daughter, a daughter's daughter, a sister or a sister's son should have no right of pre-emption whereas a father's brother's son has that right. As Section 15 stands, if the sole owner of a property sells it to his own father, mother, sister, sister's sons, daughter's daughter, or son's daughter, the sale can be defeated by the vendor's father's brother's son claiming a right of pre-emption.
(3.) WE are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-emption Act of the kinsfold entitled to pre-emption. The right of preemption based on consanguinity is a relic of feudal past. It is totally inconsistent with the constitutional scheme. 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 kinsfold mentioned as entitled to pre-emption is intrinsically defective and self-contradictory. There is, "therefore, no reasonable classification and clauses 'first' 'secondly' and Thirdly' of Section 15 (1) (a), 'first', 'secondly' and Thirdly' of Section 15 (1) (b), Clauses 'first', 'secondly' and Thirdly' of Section 15 (1) (c) and the whole of Section 15 (2) are, therefore, declared ultra vires the Constitution. " 5. In Jagdish and Ors. v. Nathi Mal Kejriwal, A. I. R. 1987 S. C. 68, a question arose before the apex Court as to what is the true scope of the position of other co-sharers in clause 'fourthly' of Section 15 (1) (b) of the Act. The apex Court held that where a co-sharer claiming a right of pre-emption fell either under clause 'first' or clause 'secondly' of Section 15 (1) (b) of the Act, he was not entitled to pre-empt the sale. While so holding, it observed thus : " It is argued by the learned counsel for the petitioners that since the suit land belonged to the joint family and it had not been sold by all the co-sharers they were entitled to claim the right of pre-emption under clause 'fourthly' of Section 15 (1) (b) of the Act because they happened to be the non-alienating co-sharers. Although there is no specific finding that the property is the joint property in this case, we shall assume for purposes of this judgment that the suit land was joint property. In order to understand the meaning of the words 'other co-sharers' in Section 15 (1) (b) we have to read the Act as it stood before the decision in Atam Prakash's case (1986-1)89 P. L. R. 329 (S. C.) (Supra ). It is seen that the expression 'other co-sharers' in "clause 'fourthly' of Section 15 (1) (b) of the Act refers to only those co-shares who do not fall under clause 'first' or 'secondly' or 'thirdly' of Section 15 (1) (b) of the Act. Since the petitioners admittedly fall either under clause 'first' or under clause 'secondly' of Section 5 (1) (b) of the Act they are clearly outside the scope of clause 'fourthly'. Therefore the petitioners cannot claim the right of pre-emption under clause 'fourthly. ' We do not, therefore, find any substance in this contention which was urged for the first time before the High Court. The suit was, therefore, rightly dismissed by the High Court holding that the petitioners were no longer entitled to any relief under the Act. This petition, therefore, fails and it is dismissed. " 6. The correctness of the judgment rendered in Jagdish case (supra) was challenged in Bhikha Ram v. Ram Sarup, (1992-1) 101 P. L. R. 49 (S. C.), wherein the interpretation placed by the apex Court on clause 'fourthly' of Section 15 (1) (b) of the Act in Jagdish's case was not approved and the apex Court held that the right of pre-emption conferred on the co-sharers who happen to be kinsfolk also could not be denied. In the judgment rendered in Atam Prakash's case (supra), the apex Court did not want to exclude the co-sharers from pre-empting the sale even if the co-sharers are kinsfolk specified in the preceeding three clauses of Section 15 (l) (b) of the Act. The apex Court in paragraph 4 of Us judgment observed thus :". . . . . . We find it difficult to hold that the purport of this Court's decision in Atam Prakash's case was to deny the right of pre-emption to those relative or relatives of the vendor or vendors who were specified in the erstwhile first three clauses of Section 15 (1) (b) even if they happen to be co-sharers. The expression 'other co-sharers' was used in the fourth clause of the said provision to ensure that no co-sharer was left out or omitted and not to deny the right to kinsfolk co-sharers covered by the preceding clauses. If the preceding clauses were not erased from the statute book as unconstitutional the kinsfold would have exercised the right in the order of preference, for which no justification was found. The relations in the first three clauses of Section 15 (1) (b) may or may not be co-sharers. The use of the expression 'other' in clause fourthly conveys the possibility of their being co-sharers also. What this Court disapproved as offensive to Articles 14 and 15 is the classification based on consanguinity and not on co-ownership. The right of pre-emption to co-sharers is held to be intra vires the Constitution. Therefore, it is difficult to hold that this Court intended to deny the right of pre-emption of those kinsfolk even if they happened to be co-sharers. That would clearly be discriminatory. With respect, therefore, we find it difficult to approve of the interpretation placed on clause 'fourthly' of Section 15 (1) (b) of the Act by this Court in Jagdish's case (AIR 1987 SC 68 ). We think on a proper construction of that clause after the preceding clauses were held to be unconstitutional the word 'other' preceding the word 'co-sharer' is rendered redundant. We, therefore, do not approve the ratio of Jagdish 's case and overrule the same. " 7. In the light of this authoritative pronouncement, there is no merit in these second appeals. 8. In R. S. A. No. 1725 of 1988, the vendee/appellants have also moved an application (C. M. No. 13-C of 1994) dated January 3, 1994 under Order 41, Rule 27 Civil Procedure Code, for permission to place on record a certifiedcopy of sale deed dated June 23. 1988. Para 3 of this application reads thus : "that the present appeal was filed in this Hon'ble Court on 14. 7. 1988. The respondent just after the decision of appeal by the lower Appellate Court has disposed of bis entire share vide sale deed dated 23. 6. 1988 and as such he has caused (sic. 'ceased) to be a co-sharer in the land which forms the basis of the suit. " The purport of this assertion is that the vendee-plaintiff has sold his entire share in the suit land vide sale deed dated June 28, 1988 and as such he has ceased to be a co-sharer and it is necessary to bring this document by way of additional evidence. The first appellate Court disposed of the appeal on June 19, 1988. The regular second appeal was admitted-to hearing on July 15, 1988, observing thus : " Counsel for the appellants contends that the plaintiff had no right of pre-emption under Section 15 (2) of the Punjab Pre-emption Act. Section 15 (2) has been declared ultra vires the Constitution. The right of pre-emption has not been enlarged for being a co-sharer. It is further contended that the said question of law is under consideration before a Division Bench, in view of the order of G. C. Mital, J. dated 11. 9. 1987 in R. S. A. No. 1920 of 1987. Admitted. To come up for hearing along with R. S. A. No. 1920 of 1987. Notice regarding stay. Dispossession stayed meanwhile. " The vendees moved C. M. No. 2135-C of 1988 in R. S. A. No. 1725 of 1988 for vacating the ex-parte stay order and the same was disposed of vide order dated November 8, 1988 passed by a Bench of this Court, observing thus : " Stay dispossession is made absolute. However, the respondents are permitted to withdraw the entire preemption amount including the1/5th sale price, and deposit the same in case the appeal is dismissed within the time allowed by the Court. ' ;