Research › Browse › Judgment

Himachal Pradesh High Court · body

1983 DIGILAW 58 (HP)

THOILU v. KRISHAN GOPAL

1983-11-11

T.R.HANDA

body1983
JUDGMENT: T.R. Handa, J.—"Whether a step son can claim a right of pre-emption under Section 15 (1) (a) of the Punjab Pre-emption Act, 1913 (as amended up to date), hereinafter referred to as the Act in respect of sale of self acquired agricultural land effected by his step mother" is the short and sole question which falls for consideration in this regular second appeal filed at the instance for the plaintiff whose claim to pre-empt such a sale has been negatived by both the Courts below, 2. The plaintiff-appellant is the son of one Mahantu by his first wife. Mahantu performed his second marriage with one jaiwanti. Smt. Jaiwanti owned some land as her self acquired property in the sense that she had not inherited the same. She sold this land to the present respondents. The plaintiff-appellant thereupon filed his suit giving rise to this appeal to preempt that sale. He claimed his superior right of pre-emption of the solitary gound that he was the step son of the vender Smt. Jaiwanti. 3. As stated earlier both the Courts below have ruled that the step son of a female vendor has no right to pre-empt a sale made by her in respect of her self-acquired property. 4. Section 15 of the Act enumerates the various categories of persons who have been vested with the right of pre-emption in respect of the sales of agricultural land and village immovable property. This section reads : "Section 15. Persons in whom right of Pre-emption vest in respect of sales of agricultural land and village immovable property.- (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest: (a) Whether the sale is by a sole owner : First,—in the son or daughter or sons son or daughters son of the vendor, or Secondly,—in the brother or brothers son of the vendor, or Thirdly,—-in the fathers brother or fathers brothers son of the vendor; Fourthly,—in the tenant who holds, under tendency 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 of daughters or sons sons or daughters sons of the vendor or vendors. Secondly,—-in the brothers or brothers sons of the vendor or vendors; Thirdly,—in the fathers brothers or fathers brothers sons of the vendor or vendors. Fourthly,—in the other co-sharers, Fifthly,—in the tenant who holds, under the tenancy of the vendor or vendors, the land or property sold or a part thereof. (c) Whether the sale is of land of 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 brothers sons of the vendors. Thirdly,—in the fathers brothers or fathers brothers sons of the vendors ; Fourthly,—in the tenants who hold under the tenancy of vendors or any 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 the 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 brothers son ; (ii) if the sale is by the son or daughter of such female, in the mothers brother or the mothers brothers sons of the vendor or vendors. (b) Where the sale is by a female of the 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: (i) First, in the son or daughter of such (husband of the) female. (ii) Secondly, in the husbands brother or the husbands brothers son of such female. 5. The short argument of Shri Prem Goel, the learned counsel for the plaintiff, is that this section makes no distinction between a son and a step son and hence the expression son as used therein should be interpreted to include a step son also. In support of this contention Shri Goel relies upon a Full Bench decision of the Punjab and Haryana High Court in the case of Moti Ram and others v, Bakhwant Singh and others reported in [AIR 1968 Punjab and Haryana 141], 6. In support of this contention Shri Goel relies upon a Full Bench decision of the Punjab and Haryana High Court in the case of Moti Ram and others v, Bakhwant Singh and others reported in [AIR 1968 Punjab and Haryana 141], 6. I have carefully perused this authority and all that I can say is that it has no bearing on the question with which we are confronted in the instant case. In the case of Moti Ram (supra) the pre-emption claimed their right of pre-emption under Section 15 (2) of the Act whereas in the instant case the plaintiff pre-emptor has invoked Section 15 (1) in support of his claim. The facts of the case of Moti Ram (supra) show that one Tarlok Singh had two wives Ind Kaur and Karam Kaur. He had sons from both these wives. On his death his property was inherited by his two widows named above and his sons from either of these wives. One of the widows, namely, Ind Kaur and his two sons from this widow sold the property which they had inherited from Tarlok Singh. This sale was sought to be pre-empted by the sons of Tarlok Singh from his other wife Karam Kaur. It was on these facts that the Full Bench of Punjab and Haryana High Court held that for the purposes of Section 15 (2) (b) of the Act, son included a step son so as to entitle him to pre-empt the sale made by his step mother. This was done in view of the explicit language of Section 15 (2) (b) which confers the right of pre-emption not on the son of the female vendor but on the son of her husband through whom she had succeeded to the property forming subject matter of the sale. Section 15 (2) (b) governs the sale by a female of the land or property to which she has succeeded through her husband or through her son and the right to pre-empt such sale is conferred on the son or daughter of such husband of the female. Section 15 (1) (a) which has been invoked by the plaintiff in support of his claim, would on the other hand be attracted where the vendor is the sole owner. Now a vendor may be a male or a female. Section 15 (1) (a) which has been invoked by the plaintiff in support of his claim, would on the other hand be attracted where the vendor is the sole owner. Now a vendor may be a male or a female. In either case the right of pre-emption has been conferred on the son or daughter or sons son or daughters son of the vendor. In case of a female vendor this provision would apply only when the case does not attract either Section 15 (2) (a) or Section 15 (2) (b). In any case Section 15 (1) (a) would be applicable where the subject matter of sale is a self acquired property in the hands of the female vendor for admittedly in such a case neither Section 15 (2) (a) nor Section 15 (2) (b) would be attracted. 7. Now the words husband of the were introduced before the last word female in Section 15 (2) (b) (i) of the Act by way of amendment effected by Punjab Act No. 13 of 1964. It was so done only in order to place at per all the sons of the deceased husband of the female vendor from whom the vendor hid inherited the subject matter of sale. The effect of this amedment is that now the son and step son of the female vendor who were from the loins of her husband, the original owner of the subject matter of sale, are treated alike for he purposes of right of pre-emption. The mere fact that the Legislature felt it necessary to make the aforesaid amendment in Section 15 (2) (b) (i) would go to show that the Legislature itself was of the view that the expression son as used in Section 15 would not include step son or else there was no need to introduce the word husband of the in Section 15 (2) (b) (i). 8. Now in case the intention of to the Legislature was to treat a step son of a vendor at par with his or her son for the purposes of Section 15 (I) (a) also, the same would have been specifically exhibited by making suitable amendments in this provision as well like the one made in Section 15 (2) (b). The Legislature, however, intentionally made no such amendment and for obvious reasons. The Legislature, however, intentionally made no such amendment and for obvious reasons. The modern tendency of the Legislature as gathered from the various amendments made in the Act is to restrict the right of pre-emption and to curtail the list of pre-emption. In so far as the right of pre-emption on the basis of relationship with the vendor is concerned, such right has been accorded on the principle of consanguinity. It is apparent from the plain language employed in Section 15 (2) (b) of the Act. There being no such relationship between a step mother and a step son or for that matter between a step father and a step son, this right was intentionally not conferred on the step son irrespective of the fact whether the vendor was male or female. 9. Looking from yet another angle, in the absence of any statutory definition of the expression son for the purposes of the Act, this expression must be given its natural meaning as commonly understood. There is a recognised distinction between a son and a step son which terms are normally not taken at par. Son means a male child in relation to his parents i.e. his father and mother. He must be an off spring of his father and mother. A step son qua a female cannot be said to be an off spring of such female. Similarly a step son qua a male cannot be said to be an off spring of a male. There is thus a real distinction between a son and a step son and it is, therefore, not possible to subscribe to the view that son includes a step son, 10. Lastly even if there was any scope to interpret the expression son used in Section 15 (1) (a) as including a step son, the Courts would be most reluctant to adopt any such interpretation. The right of pre-emption in its very nature being aggressive and piratical, it must be construed strictly. In case a provision dealing with such a right is open to two interpretations, it must be interpreted in a manner which would restrict its operation and be more favourable to the vendee. 11. The right of pre-emption in its very nature being aggressive and piratical, it must be construed strictly. In case a provision dealing with such a right is open to two interpretations, it must be interpreted in a manner which would restrict its operation and be more favourable to the vendee. 11. I thus find myself unable to agree with the contention of the learned counsel for the appellant that a son would include a step son for the purposes of Section 15 (1) (a) of the Act so as to recognize a right of pre-emption in favour of the plaintiff to pre-empt the sale by his step mother. Since no other point is involved in this appeal, the same is dismissed with costs. Appeal dismissed.