LexBHIKHA RAM versus RAM SARUP AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
BHIKHA RAM
A
V.
RAM SARUP AND ORS.
-...
OCTOBER 31, 1991
[RANGANATH MISRA, CJ., A.M. AHMADI
B
AND P.B. SAWANT, JJ.]
Punjab Pre-emption Act, 1913-Section 15 (1) (b ), F ourthly--Pre-
emptiqrPre and post Amendment-Legislative intention-Atam Prakash 's
case-Purport of
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Punjab Pre-emption Act, 1913-Section 15(1) (b), Fourthly-" Other
co-sharers "-Constrnction.
The appellant seeking to exercise the right of pre-emption as a
co-sharer, i.e. father's brother's son of the vendors, contended that
he fell within the expression 'other co-sharers' in clause 'Fourthly' D
of section lS(l)(b) of the Punjab Pre-emption Act, 1913 and was,
therefore, entitled to exercise the right of pre-emption.
The courts below negatived his contention following the deci-
sion of this Court in Jagdish & Ors. v. Nathi Mal Kejriwal & Ors.,
(19861 4 sec s10.
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In this appeal filed by special leave, the appellant submitted
that since the suit land belonged to more than one co-sharer and
bad not been sold jointly by all the co-sharers, be, as a co-sharer,
was entitled to claim the right of pre-emption under clause 'fourthly'
of section lS(l)(b) and that in Jagdish 's case, the interpretation placed
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on the expression 'other co-sharers' in section lS(l)(b) required
reconsideration.
Allowing the appeal, this Court,
HELD: 1. According to section 15 of the Act before its amend-
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~ent in 1960, in the case of sale of share ou~ of joint land or prop-
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erty, the. right of pre-emption was conferred firstly on the lineal
. descendants of the v.endor in order of succession; secondly, in the
co-sharers, if any, who are agnates, in order of succession; thirdly,
in persons not included under firstly or secondly above, in order of
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succession, who but for su_ch sale would be entitled, on death of the
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120
SUPREME COURT REPORTS
(1991) SUPP. 2 S.C.R:
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vendor, to inherit the land or property sold and fourthly, in the co-
sharers. (126 E-F]
2. Section 15 after its amendment in 1960 provided that where
the sale is of a share out of the joint land or property and is not by
all the co-sharers jointly, the right of pre-emption was vested, first,
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in the sons or daughters or son's son or daughter's sons of the
vendor or vendors; Secondly, in the brothers or brother's sons of
the vendor or vendors; Thirdly, in the father's brother or father's
brother's sons of the vendor or vendors; Fourthly, in the other co-
sharers and Fifthly, in the tenants. (126 F-G]
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D
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3. The legislature desired to confer the right of pre-emption
on specified family members of the vendor or vendors in the first
three clauses of section 15(1)(b) and with a view to covering all the
remaining co-sharers not specifically mentioned in the preceding
clauses it used the expression 'other co-sharers' in the fourth clause
which was meant to serve as a residuary clause to ensure that no co-
sharer is left out. (126 G-127 A]
4. 'The expression 'other co-sharers' was used in the fourth
claus"e 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 kinsfolk would have
exercised the right in the order of preference, for which no justifi-
cation 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-
sharer also. [127 D-F]
5. The purport of A tam Prakash 's case was that while co-
sharers were entitled to pre-empt, the conferment of that right on
certain kinsfolk based on the rule of consanguinity being a relic of
the feudal past could not be tolerated. This Court never intended to
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exclude any specifieo co-owners from the scope of clause fourthly of
section lS(l)(b) of the Act. Once conferment of the right of pre-
emption in favour of co-sharers was considered to be a reasonable
restriction on the right to hold, acquire and dispose of property
under Article 19(1)(1), the same restriction was held !o be valid
when tested on the touchstone of Articles 14 or 15 of the Constitu-
H
tion. [127 B-D]
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BHlKHA RAM v. RAM SARUP [AHMADI, J.]
121
6. What this Court disapproved as offensive to Articles 14
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and 15 is the classification based on consanguinity and not on co-
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