PETITIONER:
CHANAN SINGH & ANOTHER
Vs.
RESPONDENT:
JAI KAUR
DATE OF JUDGMENT:
11/08/1969
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C. (CJ)
RAMASWAMI, V.
CITATION:
1970 AIR 349 1970 SCR (1) 803
1969 SCC (2) 429
CITATOR INFO :
D 1976 SC2363 (11)
R 1986 SC1760 (35)
ACT:
Punjab Pre-emption Act, 1913, s. 15(2)(b)--Scope
of--Amendment by Amendment Act of 1964--if has retrospective
operation.
HEADNOTE:
S, the owner of some land in a village in Punjab, died
leaving a widow and the respondent, his daughter by another
wife. The widow sold a part of the land in February 1958 to
the appellants, whereupon the respondent filed a suit for
possession by pre-emption of the land sold. The trial court
decreed the suit and a first appeal was dismissed. A single
bench of the High Court allowed the second appeal on the
view that the respondent not being the widow's daughter, had
no right of pre-emption under s. 15(2) of the Punjab Pre-
emption Act, 1913, as amended by the Punjab Pre-emption
Amendment Act, 1960. However, a division bench in a
Letters Patent appeal, relying on an amendment made by the
PUnjab Preemption Amendment Act, 1964 in s. 15(2)(b),
reversed the judgment of the single bench and decreed the
suit.
It was contended in appeal to this Court that there is
no indication in the Amendment Act of 1964 that it is to
have retrospective operation and the amendment made by it
should be deemed to be only prospective.
HELD: The Amendment Act of 1964 was merely of a
clarificatory or declaratory nature. Even in the absence of
words which were inserted by the Amendment Act of 1964 under
s. 15(2)(b) the only possible interpretation and meaning of
the words "in the son or daughter of such female" could
have reference to and cover the son or daughter of the
husband of the 'female. The entire scheme of s. 15(2) is
that the right of pre-emption has been confined to the
issues of the last male holder from whom the property
which has been sold came by inheritance. [805 H]
Under s. 15(2)(b) the right of pre-emption would vest
firstly in the son or daughter of the husband of the female
meaning thereby either her own off-springs from the husband
whom she had succeeded or the son or daughter of that
husband even from another wife. [806 G]
In the present case the respondent was entitled to
exercise her right of pre-emption under paragraph First of
clause (b) of s. 15(2) even before the Amendment of 1964.
Whatever doubts existed they were removed by that Act which
must be given retrospective operation. [807 E-F]
Ram Sarup v. Munshi & Ors, [1963] 3 S.C.R. 858 and Mota
Singh v. Prem Parkash Kaur & Ors., I.L.R. [1961] Punj. 614,
627; referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 774 of
1966.
Appeal by special leave from the judgment and decree
dated August 31, 1965 of the Punjab High Court in Letters
Patent Appeal No. 91 of 1961.
Harbans Singh, for the appellant.
804
Bishan Narain and S.K. Mehta, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a
judgment of a division bench. of the Punjab High Court
decreeing the suit filed by the respondent for possession of
certain land by preemption.
The facts may be shortly stated: Santa Singh was the
owner of some land in village Samadh Bhai, tehsil Moga. He
died leaving a widow Smt. Sobhi. He also left a daughter
Smt. Jai Kaur from his other wife. On February 3, 1958 Smt.
Sobhi sold 73 kanals 14 marlas of land to the appellants,
the sale consideration mentioned in the sale deed being Rs.
8,000/-. Smt. Jai Kaur filed a suit for possession by pre-
emption of the land which had been sold by Smt. Sobhi.
According to her a consideration of Rs. 4,000/- only had
been paid by the vendee. The trial court decreed the suit
in May 1959 granting a decree for possession on payment of
Rs. 6,500/- together with costs. The second Additional
Judge to whom an appeal was taken dismissed it. In the High
Court the learned Single Judge took the view that Smt. Jai
Kaur not being the daughter of the vendor Smt. Sobhi had no
right of pre-emption under s. 15(2) of the Punjab Pre-
emption Act, 1913 ‘as amended by the Punjab Pre-emption
Amendment Act, 1960. The suit was dismissed. Smt. Jai Kaur
filed an appeal under clause 10 of the Letters Patent of the
High Court. Relying on an amendment made by the Punjab
Pre-emption Amendment Act 1964 in the first paragraph of
clause (b) of sub-s. (2) of s. 15 of the Punjab Pre-emption
Act, hereinafter called the Act, the Division Bench reversed
the judgment of the Single Judge and decreed the plaintiff’s
suit.
The relevant provisions of the statute may now be
noticed together with the amendments made in 1960 and 1964.
Section 15 of the Act was substituted by s. 4 of the
Amendment Act, 1960. According to the substituted section
the right of pre-emption in respect of agricultural land and
village immovable property shall vest thus :–
(1)
(2) Notwithstanding anything contained in
sub-section (1)–
(a) where the sale is by a female of land
or property to which she h,as succeeded
through her father or brother or the sale in
respect of such land or property is by the
scan or daughter of
805
such female, after inheritance, the fight of
preemption shall vest,–
(i) if the sale is ‘by such female, in
her brother or brother’s son;
(ii) if the sale is by the son or daughter
of such female, in the mother’s brother or the
mother’s brother’s sons of the vendor or
vendors;”
By the Amendment Act 1964 in the first paragraph of s. 15(2)
(b) between the words “such” and “female” the words “husband
of the” were inserted. The result was that after the
amendment the portion of clause (b) relevant for our purpose
was to read as follows:
“FIRST, in the son or daughter of such husband of the
female.”
Now if the Amendment Act of 1964 could be regarded as having
retrospective operation so as to affect pending proceedings
there can be no dispute that the judgment of the division
bench was light and must be affirmed. The contention which
has been raised on behalf of the appellants is that. there
is no indication in the Amendment Act of 1964 that it was to
have retrospective operation and therefore the ‘amendment
made by it should be deemed to be only prospective. It may
be mentioned that by s. 6 of the Amendment Act of 1960 a new
section 31 was inserted in the Act. That section provided,
“no court shall pass a decree in a suit for pre-emption
whether instituted be,fore or after the commencement of the
Punjab Pre-emption Amendment Act of 1960 which is
inconsistent with the provisions of the said Act.” in Ram
Sarup v. Munshi & Ors.(1) this Court held that the language
used in s. 31 was comprehensive enough so as to require an
appellate court to give effect to the substantive provisions
of the Amending Act whether the appeal before it was one
against a decree granting pre-emption or one refusing that
relief. Although s. 31 was inserted in the Act for all times
the phraseology employed therein does not show that its
language was meant to cover those amendments which would
be made subsequent to the Amendment Act of 1960. The word
“said” can have reference in the context only to the
enactment of 1960 and to no other. it would not be
legitimate for the courts to give an extended effect to a
provision used and words employed warranted such a course
being followed. That does not appear to be the case here.
It appears to us that the Amendment Act of 1964 was
merely of a clarificatory or declaratory nature. Even in
the absence of the words which were inserted by the
Amendment Act of 1964 in s. 15(2)(b) the only possible
interpretation and meaning of
(1) [1963] 3 S.C.R. 858.
806
the words “in the son or daughter of such female” could
have reference to and cover the sort or daughter of the
husband of the female. The entire scheme of sub-s. (2) of
s. 15 is that the right of pre-emption has been confined to
the issues of the last male holder from whom the property
which has been sold came by inheritance. Looking at clause
(a) of sub-s. (2) where the properly which has been sold has
come to the female from her ,father or brother by succession
the right of pre-emption has been given to. her brother or
brother’s son. As has been observed in Mota Singh v. Prem
Parkash Kaur & Ors.(1), the predominant idea seems to be
that the property must not go outside the line of the last
male holder and the right has been given to his male linea
descendants. Where the sale is by the son or the daughter
of such female the right is given to the mother’s brother or
their sons. The principle which has been kept in view is
that the person on whom the right of pre-emption is
conferred must be a male lineal descendant of the last male
holder of the property sold. This is so with regard to
clause (a) of sub-s. (2). Coming to clause (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 same from his father the right of
pre-emption is to vest firstly in the son or daughter of
such female and secondly in the husband’s brother or
husband’s brother’s son of such female. Now if the son
or daughter of the female who has sold the property could
refer to her son or daughter from a husband other than the
one from whom the property devolved on her, it would be
contrary to the scheme and purpose of sub-s. (2) which
essentially is to vest the right of pre-emption in the
lineal descendants of the last male holder. Similarly it
is unthinkable that a husband’s brother or husband’s
brother’s son should have reference to a husband to whom
the property never belonged. In other words it could
never be intended that if a female has had a previous
husband who has either died or with whom the marriage has
been dissolved and the female has remarried and succeeded to
the property of her second husband the brother or the
brother’s son of her previous husband should be able to
claim the right of pre-emption when they had nothing
whatsoever to do with the property sought to be preempted.
It would follow that under clause (b) the right of
preemption would vest firstly in the son or daughter of the
husband of the female meaning thereby either her own off-
spring ,from the husband whom she has succeeded or the son
or daughter of that husband even from another wife.
If the above discussion is kept in view there is no
difficulty in attributing a retroactive intention to the
legislature when the Amendment Act of 1964 was enacted.
It is well settled that if a
(1) I.E.R. [1961] Punj. 614. 627.
807
statute is curative or merely declares the previous law
retroactive operation would be more rightly ascribed to it
than the legislation which may prejudicially affect past
rights and transactions. We are in entire agreement with
the following view expressed in a recent full bench decision
of the Punjab High Court in Moti Ram v. Bakhwant Singh &
Ors. (1) in which a similar point came up ,for
consideration:
“A close analysis of paragraphs (First)
and (Secondly) of clause (b) of sub-section
(2) of section 15 before the amendment
introduced by Punjab Act 13 of 1964 would
demonstrate that a son of the husband of a
female vendor though not born from her womb
would be entitled to preempt, particularly
when the husband’s brother and even the son of
the husband’s brother of that female are
accorded the right of preemption. To
reiterate, the right of preemption is accorded
manifestly on the principle of consanguinity,
the property of the female vendor ‘being that
of her husband, and there is no reason why
the step-son should be excluded and the nephew
of the husband included. From this alone it
must be inferred that the Legislature had
intended to include a step-son and
consequently retrospective operation had to be
given to the amending Act as such a
construction appears to be in consonance ‘and
harmony with the purpose of the Act”.
The result, therefore, is that the respondent was entitled
to. exercise, her right of preemption under paragraph First
of cl. (b) of sub-s. (2) of s. 15 even before the amendment
made in 1964. At any rate whatever doubts existed they were
removed by the Amendment Act of 1964 which must be given
retrospective operation.
The appeal consequently fails and it is dismissed with
coats.
R.K.P.S. Appeal dismissed
(1) I.L.R.[19681] Punjab 104, 120.
808