T.R. Handa, J.
1. 'Whether a widow who succeeded to the estate of her husband before the coming into force of the Hindu Succession Act, 1956 and thereafter her estate becomes enlarged to the full ownership, can be said to have succeeded through her husband to the property in terms of Section 15 (2) of the Punjab Pre-emption Act.'is the short though controversial question which has been referred to this Full Bench.
2. The circumstances which have given rise to this reference may be briefly sketched like this: one Moti Ram who was the last male holder of the land which forms subject matter of the present litigation. He died issueless in the year 1930 leaving behind his widow, Smt. Lachhmi as his sole heir. Smt. Lachhmi thus succeeded to the land of her husband in her capacity of a Hindu widow. Of course under the law then in force all that she got as a result of this succession was a limited estate or what was then known as a 'widow's estate'. She continued to possess this land till the enactment of the Hindu Succession Act, 1956, hereinafter referred to as 'the Succession Act'. By virtue of the provisions of Section 14 (1) of this Act, she was declared full and absolute owner of this land.
3. Thereafter in the year 1964, she sold the land in question to the present appellants, Mast Ram and Paras Ram for a consideration of Rs. 2,000/- vide registered sale deed dated 7-1-1964. Shri Makhnu, the respondent herein, was at that time a tenant in respect of 1/4th of this land under the Vendor. He claimed that by virtue of his tenancy he had a superior right of preemption as against the vendees who were only strangers. The respondent claimed to derive his superior right of pre-emption under Section 15 (1) (a) of the Punjab Preemption Act, hereinafter referred to as the Pre-emption Act. He accordingly brought his suit which gave rise to the appeal out of which this reference has arisen, to enforce his aforesaid pre-emptive right.
4. The appellant-vendees contested the claim of the pre-emptor. Their case was that the land in question could be preempted only under Section 15 (2) (b) of the Preemption Act which does not recognise anyright of pre-emption in favour of a tenant and that the provisions of Section 15 (1) of the Pre-emption Act could not be attracted in this case.
5. For a proper appreciation of the rival contentions of the parties, it would be expedient to have a look at this stage at the language of Section 15 of the Pre-emption Act which reads as under:
'Section 15. Persons in whom right of pre-emption vest in respect of sales of agricultural land and village immovable property.
15. (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest:--
(a) where the sale is by a sole owner:--
First,.....
Secondly,.....
Thirdly,.....
Fourthly in the tenant who holds, under tenancy of the vendor, the land or property sold or a part thereof
(b).....
(c).....
(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 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.
(b) where the sale is by a female of the land or properly 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 preemption shall vest:
(i) First, in the son or daughter of such (husband of the) female.
(ii) Secondly, in the husband's brother or the husband's brother's son of such female.'
6. The case of the plaintiff pre-emptor was simple. According to him Smt. Lachhmi vendor was the sole owner of the land sold by her. The sale in question, therefore, being by a sole owner, the case fell under Section 15 (1) (a) and in terms of sub-clause Fourthly of this sub-section, he in his capacity of a tenant of a part of such land, had a preferential right of pre-emption.
7. The case of the appellants vendees on the other hand was that though the salein question was by a sole owner, Smt. Lachhmi vendor being a female who had succeeded to the land sold by her, through her husband, the case fell within Section 15(2) (b) and once it is shown, that the case fell within Section 15 (2) (b), the provisions of Section 15 (1) (a) would not be attracted.
8. It is obvious that Section 15 (1) (a) deals with the right of pre-emption where the sale is made by a sole owner regardless of the fact whether the vendor is a male or female. Similarly the source of acquisition of the subject of sale by such vendor is also immaterial. Section 15 (2) (a) on the other hand deals with the right of pre-emption where the sale is made by a female and per-tains to 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. Similarly Section 15(2)(b) deals with the right of pre-emption where again the sale is by a female and relates to land or property to which she has succeeded through her husband or through her son, in case the son has inherited the property sold, from his father.
9. It may, however, be noticed that subsection (2) of Section 15 starts with a non obstante clause. In view of this non obstante clause there can be no scope for dispute or doubt that this sub-section overrides the provisions of sub-section (1). If, therefore, the sale is by a female and the property sold is of the kind described in Sub-clause (a) or (b) of Sub-section (2), then on account of the overriding nature of the provisions of Subsection (2), the right to pre-empt such sale Would be governed by Sub-clause (a) or {b) as the case may be, of Sub-section (2) and not by Sub-section (1) (a) notwithstanding the fact that the vendor was the sole owner of the property sold. It, therefore, follows that before the provisions of Sub-section (1) of Section 15 can be attracted for determining the right to pre-empt a particular sale, the possibility of the case attracting the provisions of Section 15 (2) has to be ruled out.
10. Now in the instant case the main controversy between the parties is whether the sale made by Smt. Lachhmi vendor in favour of the appellants is pre-emptible under sub-section (2) (b) or Sub-section (1) (a) of Section 15 of the Pre-emption Act. The answer to this would depend upon the answer to the question whether a widow like Smt. Lachhmi vendor can be said to have 'succeeded to' the land in question 'through her husband' within the meaning of Section 15 (2) (b) or whe-ther she can be said to have acquired such land otherwise and independent of her husband. There being conflict of opinions on this point between this High Court and the Punjab and Haryana High Court, this point in the form of question stated in the opening sentence of this judgment has been referred to this Full Bench.
11. This question came up for consideration for the first time before a Division Bench of the Punjab and Haryana High Court in the case of Jai Singh v. Mughla reported in (1967) 69 Pun LR 475. Their Lordships of the Division Bench expressed the view that a Hindu widow in such circumstances could not within the meaning of Sub-section (2) of Section 15 of the Preemption Act be said to have succeeded to the property in question through her husband. Repelling the rival contention, the learned Judges used the following language in support of their view:--
'The fallacy in the argument of the learned counsel for the respondent is that he does not see the difference between what was inherited by the vendor or to what she succeeded through her husband, which was merely a life estate, on the one hand, and what she sold to the vendees, on the other hand. What is to be pre-empted is the sale From that point of view, what has to be decided is whether the vendor succeeded to the property sold by her through her husband or not. The second fallacy in the argument of Mr. Jain is that he seems to think that every one who owns some property must of necessity have succeeded to it through some one. Owners do not succeed to self acquired property. What has happened in the eyes of law by the coming into force of Sub-section (1) of Section 14 of the Succession Act is that the lesser estate of the widow has merged into the larger estate created by law. On such merger, the erstwhile life estate ceases to exist and is inextricably mixed up with the absolute ownership of the property. What the vendor sold to the vendees were her rights of absolute and full ownership in the property in question. To those rights she never succeeded through her husband. She secured those rights by operation of law on the corning into force of Section 14 (1) of the Succession Act. What was originally inherited merged with what she got under fie law, resulting in absolute dissolving of the erstwhile life estate.'
By applying the 'Doctrine of merger', the Division Bench further observed that the life estate to which the widow had succeeded through her husband had been annihilatedon 1-4-1956 on the coming into force of the Succession Act, by the same being merged with the greater estate created by the operation of law. It was held that what was held by the widow on the date of sale, had not been inherited by her from anybody but had been bestowed upon her by the Succession Act.
12. Subsequently a learned single Judge of the same High Court had an occasion to consider the above quoted view of the Division Bench, in the case reported in (1968) 70 Pun LR 809 (Kirpa Ram v. Harnam Singh). The learned single Judge did entertain some doubt against the correctness of the view expressed by the Division Bench in Jai Singh's case but then feeling himself bound by the Division Bench judgment, he followed the same.
13. The correctness of the view expressed in Jai Singh's case (1967-69 Pun LR 475) (supra) was once again doubted by another Division Bench of the Punjab and Haryana High Court which referred the matter to the Full Bench. Ultimately the matter was placed before a Special Bench of 5 Judges whose decision is reported in AIR 1976 Punj and Har 157 (Prithi Pal Singh v. Milka Singh). The Special Bench speaking through P. C. Jain, J. affirmed the view expressed in Jai Singh's case. The substance of the judgment of the Special Bench is found in paragraph 31 of the report which reads like this :--
'What was once the life estate of the widow to which she succeeded through her husband had thus been annihilated on the coming into force of the Succession Act as the lesser estate merged into a greater estate created by the operation of law. Taking this view of the matter, it is clear that the sale by a widow who acquired the absolute ownership by operation of law under Section 14 (1) of the Succession Act is pre-emptible under Sub-section (1) and not under Sub-section (2) of Section 15 of the Act and I hold accordingly, and I find myself in full agreement with the observations and findings of the learned Judges in Jai Singh's case (1967) 69 Pun LR 475 (supra), which read as under :-- '... .. ... ... that a widow who originallysucceeded to some land or property through her husband as a limited owner under the Hindu Law, is not deemed to have 'succeeded' to the absolute and full ownership of the estate in the said land or property which she acquires under Section 14 (1) of the Hindu Succession Act, on the coming into force ofthe said provision, by the merger of her lesser estate into the greater one, within the meaning of Clause (b) of Sub-section (2) of Section 15 of the Pre-emption Act, and that, therefore, a sale of such absolute estate by her after the coming into force of the Succession Act, is pre-emptible under Sub-section (1), and not under Sub-section (2) of Section 15.'
14. The reasoning adopted in support of the view taken by Punjab and Haryana High Court in the above mentioned cases may tersely be expressed like this: What the widow had inherited from her husband prior to the enactment of the Succession Act was a limited estate or what was then popularly known as a widow's estate. On the other hand what she actually sold to the vendor were her rights of absolute and sole ownership in the property. Admittedly she had not succeeded to such rights of absolute or full ownership in the property through her husband. She had acquired these rights of full ownership only under Section 14 (1) of the Succession Act and with effect from the date of the enforcement of that Act. What the widow possessed before this date in the form of 'limited estate' was completely washed away and the same merged into the rights of full ownership which she acquired by virtue of Section 14 (1) of the Succession Act. jn the view of the learned Judges, therefore, the property in question was, in law, a self acquired property of the widow and she could not be said to have 'succeeded to' the same 'through her husband'.
15. The learned counsel for the appellants-vendees has urged that the view expressed in Jai Singh's case (1967-69 Pun LR 475) and later endorsed in Prithi Pal Singh's case (AIR 1976 Punj and Har 157) (FB) (supra) does not reflect the correct position in law. According to the learned counsel the entire scheme of Section 15 (2) is to restrict the right of pre-emption and to confine the same to the family of the last male holder through whom the widow had succeeded to the property in question. He further contended that Section 15 (2) made no distinction between full ownership and limited ownership in the property as it refers only to the corpus and not to any particular interest in the property. Once it is shown, proceeds the argument of the learned counsel, that the widow inherited the land from her husband, then, notwithstanding that she inherited the same as a limited owner, the same would be covered by Section 15 (2) (b) of the Succession Act (Pre-emption Act) as she would belaid to have succeeded to the property through her husband.
16. The learned counsel for the plaintiff-pre-emptor on the other hand adopted all the reasonings which found favour with the learned Judges who decided the cases of Jai Singh and Prithi Pal Singh (supra).
17. I have given my deep and most care-ful consideration to the matter and from whatever angle I have tried to look into the subject, I find it difficult to subscribe to the view taken by the learned Judges of the Punjab and Haryana High Court in the above mentioned cases. According to me, the simplest way of looking into the matter is like this:
18. Admittedly the property forming the subject-matter of the sale was, at the time of his death, held by the husband in his capacity of an absolute and full owner. Naturally on the death of the husband, some one had to succeed to the property left by him. Now, who was that some one? On the facts stated above, the immediate answer is 'his widow and none else'. Obviously under the law then in force, there was no other heir of the deceased who could inherit any part of the property of the deceased or any interest therein in the presence of his widow. Looking from this point of view, it cannot be gainsaid that the widow succeeded to the property of her husband as her (his) next heir and in her own right. It is a fundamental rule of Hindu Law that inheritance is never in abeyance and where the estate of a Hindu has vested in a person, who is his nearest heir at the time of his death, it cannot be divested except either by birth of a preferable heir such as a son who was conceived at the time of his death or by adoption in certain cases, of a son to the deceased. The widow having thus inherited the estate of her husband as his next heir, on this simple reasoning it can be concluded that she succeeded to the property in question through her husband.
19. Let us next examine the nature of the property or rights in the property to which the widow succeeded from her husband before the enactment of the Succession Act. The nature of the rights to which the widow succeeded under the Hindu Law piror to the enactment of the Succession Act was explained by the Supreme Court in Jaisri Sahu v. Rajdewan Dubey (AIR 1962 SC 83) in the following language (at pp. 86 and 87):--
'When a Hindu widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her. She fully represents the estate, theinterest of the reversioners therein being only spes successionis. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but, this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu Law ..... Where, however,there is necessity for a transfer the restriction imposed by Hindu Law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume.'
Similar observations had earlier been made by their Lordships of the Privy Council in Janaki Ammal v. Narayanasami Aiycr, AIR 1916 PC 117. The same were expressed like this:
'The rule of the Hindu Law with regard to the nature of the widow's estate may have been subject to various forms of expression, but in substance it is not doubtful. Her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however, limited; but, to use the familiar language of Mayne's Hindu Law, para 625, p. 870, 'so long as she is alive no one has any vested interest in the succession'.'
20. Now, this being the position under the Hindu Law, as it obtained prior to the enactment of the Succession Act, can it be said that the widow did not succeed to the property of her deceased husband under that law. In my view it cannot be so said. It, therefore, looks quite legitimate to conclude that in a case of the instant type the widow had succeeded tc the property in question through her husband only. The expression 'the land or property to which she succeeded through her husband' as found in Section 15 (2) (b) of the Pre-emption Act has obviously been used in its natural and ordinary sense. There is no indication to the contrary found anywhere in the Act. This expression must, therefore, be deemed to include the case of a widow who had succeeded to the property of her husband before the enactment of the Succession Act although as a limited owner. This interpretation is also in accordance with the scheme of Section 15 (2), the sole object of which is to restrict and confine the right of pre-emption to the members of the family of the last male holder. In any case there appears to be no justification to give the expression quoted above a restricted meaning so as to cover the case ofonly such a female who succeeded to the properly of her father or her husband after the Succession Act is an absolute owner. If the intention of the Legislature was to give this restricted meaning to the above mentioned expression, it could have easily so expressed itself and in any case it should have done so in view of the fact that in the ordinary sense of this expression as it was then understood, the widow was always said to have succeeded to the property of her husband even under the old Hindu Law.
21. Let us now examine the effect of the Hindu Succession Act on the rights of the widow which she had earlier acquired under the Hindu Law. The relevant provision is found in Section 14 (1) which reads like this:
'14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.-- In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.'
It is obvious that the main provision is only declaratory in nature. It declares that any property possessed by a female Hindu whether acquired before or after the commencement of the Act snail be held by her as a full owner thereof and not as a limited owner thereof. The only effect of this provision is to remove the traditional limitations and restrictions on the powers of disposition of a female Hindu which hitherto were considered as inherent in her estate. Otherwise it does not operate to vest any new estate in the widow. She continues to possess and own the same estate, namely, the estate which once belonged to her husband and to which she had succeeded as heir of her husband. The estate of the husband never lost its entity on his death. It continued to exist. What happened on the death of the husband was that it only changed hands and came to be vested in the widow. The widow was never divested of this estate. How could the widow be then said to have acquired a new estate under Section 14 (1) of the Succession Act which could be called her self acquiredproperty For the same reasons I am unable to appreciate as to how the life estate of the widow to which she had succeeded through her husband under the old Hindu Law was annihilated or washed away on the coming into force of the Succession Act. What was annihilated and washed away with the enforcement of the Succession Act was the restriction or the limitation placed on the powers of disposition of the female owner and not the estate which very much continued to exist in its original form. It, therefore, cannot be said that any new estate came to be vested in the widow with the enactment of the Succession Act.
22. As a result of my above discussion I would hold that the widow who succeeded to the estate of her husband before the coming into force of the Hindu Succession Act and thereafter her estate becomes enlarged to the full ownership can be said to have succeeded through her husband to the property in terms of Section 15 (2) of the Punjab Pre-emption Act and answer the question referred to above in the affirmative,
H.S. Thakur, J.
I agree.
Vyas Dev Misra, C.J.
I agree.