Civil Appeal No 453 of 1988
897 From the Judgment and Order dated 531984 of the Punjab and Haryana High Court in Civil Revision No 3411 of 1983
EC Agarwala for the Appellants
GK Bansal for the Respondent
The Judgment of the Court was delivered by VENKATARAMIAH J
The two short questions involved in this case are i whether the right of pre emption conferred on a tenant by a customary law is heritable or not and ii whether on the death of such a tenant who had filed a suit for pre emption his legal representatives can continue the suit
The property in dispute which is a double storied building situated in the town of Jagadhri District Ambala Haryana originally belonged to one Om Prakash
Kishan Chand was in possession of a part of the said property as a tenant
Om Prakash sold the entire property including the portion occupied by Kishan Chand to the respondent for a sum of Rs23000 under a registered sale deed dated 1171980
It is alleged that in the town of Jagadhri there was in force a customary law under which a tenant in occupation or a building had a right of pre emption
Aggrieved by the sale of the property in his occupation as a tenant Kishan Chand filed a suit for pre emption in the Court of the Sub Judge II Class Jagadhri in Civil Suit No 131 of 1980 on 2681980 stating that the value of the portion of the property occupied by him was Rs 10000
The respondent denied that there was such a customary law conferring a right of pre emption on a tenant in force in the town of Jagadhri and that in the event of a decree being passed in the suit the plaintiff should be asked to pay a sum of Rs20000 by way of consideration
During the pendency of the suit Kishan Chand died on 881983
An application was filed under Order 22 Rule 3 Civil Procedure Code by the appellants who were the legal representatives of Kishan Chand to bring them on record in the place of the original plaintiff Kishan Chand and to permit them to prosecute the suit further
The respondent opposed the said application contending that the right of pre emption even if it existed was only a personal right of Kishan Chand and was not heritable and therefore the appellants were not entitled to be brought on record as the legal representatives of Kishan Chand
It was further contended by the respondent that the suit was liable to be dismissed on the death of Kishan Chand as the right to sue did not survive
The trial court 898 allowed the application made under Order 22 Rule 3 Civil Procedure Code holding that the right of pre emption was heritable and the right to sue survived on the death of the plaintiff in favour of his legal representatives
Aggrieved by the order passed by the trial court the respondent filed a revision petition under section 115 Civil Procedure Code before the High Court of Punjab  Haryana in Civil Revision No 3411 of 1983
Before the High Court the respondent relied on a Full Bench decision of the High Court of Punjab  Haryana in Chandrup Singh and Another vs Data Ram and Another 1982 Punjab Law Reporter 771 in which it had been held that a statutory right of pre emption resting only on blood relationship created by section 151 of the Punjab Pre emption Act 1913 1 of 1913 hereinafter referred to as the Act  as it was in force in Haryana was not a heritable right and did not devolve on the heirs on the death of the plaintiff pre emptor before the grant of the decree in the suit
Though the learned Judge who heard the revision petition was of the view that the above Full Bench decision ran counter to the decision of the Supreme Court in Hazari  Ors
vs Neki  Ors
  he allowed the petition following the Full Bench decision on the ground that the said decision was bindig on him and declared that the suit instituted by Kishan Chand had abated on his death
We have gone through the decision of this Court in Hazari s case supra and also the Full Bench decision of the High Court of Punjab  Haryana in Chandrup s case supra
The facts in Hazari s case supra were these
The plaintiff who was the father s brother of one Dhara Singh instituted three suits for pre emption of the lands sold by Dhara Singh under three sale deeds on the ground that he had a superior right of pre emption on the basis of his relationship with the vendor as against the purchasers under section 151a of the Act
The suits were decreed by the trial court
The purchasers took the matter in appeal before the 1st Appellate Court and those appeals were dismissed but in one of the appeals there was a slight modification in the amount which the plaintiff had to pay to the purchasers
The purchasers filed three second appeals before the High Court against the judgments and the decrees of the 1st Appellate Court and the plaintiff also preferred a second appeal before the High Court in one of the cases against the increase made in the price of the land by the 1st Appellate Court
While the second appeals were pending in the High Court the plaintiff died
After his death application were moved under Order 22 Rule 11 of the Civil Procedure Code to bring the legal representatives of the deceased plaintiff on record
All the four second appeals were heard and dismissed by the High Court
The purchasers 899 having failed in the Letters Patent Appeals filed before the Punjab  Haryana High Court against the decrees passed in the second appeals filed three appeals before this Court by special leave
It was contended before this Court by the purchasers that on the death of the plaintiff the right to sue came to an end and his legal representatives were not entitled to claim any benefit under the decrees in question
Rejecting the above contention this Court observed at page 836 of the Report thus In support of these appeals learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for preemption
The argument was that the statutory right of preemption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of the legal representatives as representing the estate of Neki
We are unable to accept the argument put forward by the appellants
It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same
It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land
The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner s right of sale and compels him to sell the property to the person entitled to pre emption under the statute
In other words the statutory right of preemption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to preempt
 In reaching the above conclusion this Court while accepting the contention that the right of pre emption under section 151a of the Act did not create an interest in the land was however of the view that the right did not abate on the death of the plaintiff during course of the 900 proceedings in court
This Court referred to the decision of the Punjab  Haryana High Court in Faqir Ali Shah vs Ram Kishan  Ors 133 PR 1907 and the decision of the Allahabad High Court in Wajid Ali  Anr
vs Shaban  Ors
 ILR 31 Allahabad 623
In the latter decision namely the Wajid Ali s case supra the High Court of Allahabad had held that where a right of pre emption existed by custom as recorded in the village Wajib ul arz the right having once accrued did not of necessity lapse by the death of the pre emptor before making a claim but descended along with the property in virtue of which it subsisted to the heir of the pre emptor
It is significant that in that case the High Court of Allahabad had taken the view that the right of pre emption which had accrued in favour of the pre emptor would descend along with the property in virtue of which it subsisted to the heir of the pre emptor even when the death of the pre emptor had taken place before he made a claim for pre emption
The Full Bench of the High Court of Punjab  Haryana which heard Chandrup s case supra after noticing the decision of this Court in Hazari s case supra distinguished the said decision observing thus 21
To conclude on the particular language of the statute on principle and on the weight of precedent it is held that the purely statutory right of pre emption resting wholly on blood relationship alone under section 151 of the Punjab Pre emption Act is not a heritable right and does not devolve on the heirs on the death of the plaintiff pre emptor before the grant of the decree in the suit
The answer to the question posed at the very outset is thus rendered in the negative
 We find it difficult to agree with the decision of the Full Bench of the High Court of Punjab  Haryana in the above case
While it may not be disputed that a right of pre emption does not give rise to an interest in immovable property in the instant case the plaintiff had acquired the said right of pre emption under the customary law by virtue of the right of tenancy which he had in the portion of the property in his possession
It cannot be disputed that the right of tenancy itself was heritable and therefore every right attached to the said right of tenancy or incidental to it should ordinarily be heritable
There can be no distinction between a right of pre emption arising under the statute law or such a right arising under customary law
The other reason given by the Full Bench in order to distinguish the decision of this Court in Hazari s case supra namely that the pre emptor 901 had died at the stage of second appeal in the said case while the pre emptor had died in the case before the Full Bench at the stage of trial also does not appeal to us
The view expressed in Muhammad Husain vs Niamet un nissa and Ors ILR 20 Allahabad 38 that under Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre emption had not obtained his decree for pre emption in his life time the right to sue did not survive to his heirs is not relevant for purposes of this case
It is true that the said decision was noticed by this Court in Hazari s case supra but this Court did not express any opinion on the correctness of the above position
In the case before us the right of pre emption is claimed not on the basis of Mohammadan law but under customary law by the heirs of a tenant who was in possession of the property in question and who had instituted a suit for enforcing the said right of pre emption
It is appropriate to refer to the following passage in Faqir Ali s case supra which is extracted in Hazari s case supra at page 837 While therefore there is good reason why voluntary transfers should not pass a right of pre emption as regards properties previously sold those reasons do not apply to transfers by inheritance
As regards transfers by inheritance the general principle should apply that the right of pre emption passes with the land
Mr Grey laid great stress on sections 13 and 16 of the Punjab Laws Act urging that the father was the person on whom the notice had to be served and that it was he who had the right to sue and that the right was thus a personal one that could not be inherited by the son
The right was no doubt a personal one in the father based on his land but I can see no reason why such right cannot be inherited by the son
If the father had waived or otherwise disposed of his right this would no doubt be binding on the son as the father was representing the whole estate
Where however the father has done nothing of the kind but has simply taken no steps in the matters there seems to me no reason why the son should not step into the shoes of his father and take the same action as the father could have done
The son inherits the other causes of action belonging to his father and why not this one Nor do I see why the son cannot come in under section 16 simply alleging that no notice as required by section 13 was served on his father
 902 Hence the fact that the pre emptor had died in the present case at the trial stage cannot make any difference
We are therefore of the view that the decision of the Punjab  Haryana High Court in Chandrup s case supra is inconsistent with the decision of this Court in Hazari s case supra and has to be overruled
We accordingly overrule it
We hold that the right to sue in the present case survived on the death of Kishan Chand in favour of the appellants who were his legal representatives and they were entitled to be brought on record in substitution of the original plaintiff Kishan Chand under Order 22 Rule 3 of the Civil Procedure Code
The appeal is accordingly allowed the order of the High Court is set aside and the order of the trial court is restored
The trial court is directed to bring the appellants on record as the legal representatives of the deceased plaintiff and to proceed to dispose of the suit on merits


Summary:
 The respondent landlord filed an application in the Court of the Rent Controller under Section 13 A of the East Punjab Rent Restriction Amendment Act 1985 seeking eviction of the appellant tenant on the ground of arrears of rent and for his own use and occupation
It was contended that the respondent retired from the service of the Government of India Ministry of Defence on 20th May 1949 and that his service was thereafter transferred to the Ministry of Rehabilitation from where he was discharged on 30th November 1965 on the abolition of the Ministry and that as he had no other house within the municipality he wanted the house in question for residence
On receiving the summons of the eviction petition the appellant tenant sought leave to contest the application on the ground that he was inducted as a tenant in the premises in the year 1968 and that Section 13 A of the Act did not entitle the landlord to maintain the eviction petition
The Rent Controller after recording the evidence of the parties negatived the contention of the tenant allowed the application and directed the tenant to vacate the premises within one month from the date of the order
The appellant preferred a revision application under Section 18 A of the Act but the High Court holding that the respondent being a specified landlord  at the relevant time ie within one year of the date of commencement of the East Punjab Urban Rent Restriction Amendment Act 1985 was entitled to get an order of eviction of the tenant from his house upheld the eviction order of the Rent Controller and dismissed the revision petition
The tenant appealed to this Court by special leave
834 Allowing the appeal  HELD 1
The respondent landlord did not satisfy the basic requirement of section 2hh of the East Punjab Urban Rent Restriction Amendment Act 1985 and so he was not competent to maintain the application under section 13 A of the said Act
842C 2
Section 13 A of the East Punjab Urban Rent Restriction Amendment Act 1985 in clear terms enjoins that Where a specified landlord at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the said Act makes an application to recover the possession of the building or scheduled building the Controller will direct the tenant to deliver possession of the said house to him
Therefore to be entitled to have the benefit of Section 13 A of the Act the landlord respondent will have to fulfil the first qualification ie he must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union ie in 1963
840F H 3
To get the benefit of the summary procedure provided in Section 13 A the ex servicemen must be a specified landlord at the time of his retirement from service of the Union as provided in Section 2hh
842B 4
The respondent landlord in the instant case retired from the service of the Union in 1965 and the house in question was let out to the appellant tenant in 1968
The respondent was thus not a landlord qua the premises and the tenant on the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13 A of the East Punjab Act
842C D 5
The Rent Controller has not at all considered the question whether the landlord is a specified landlord but simply held that the landlord was discharged from service on the abolition of the Department of Rehabilitation and so he was covered under the definition of specified landlord as given under section 2hh of the Act
The Single Judge of the High Court without considering the provisions of Section 2hh of the Act held that the application under Section 13 A by a specified landlord seeking ejectment of a tenant was competent within one year of the commencement of the amended Act even if there existed no relationship of the landlord and tenant on the date of the retirement of the specified landlord
This view is on the face of it erroneous
The 835 judgments and orders of the Courts below are set aside
841F H 842A B D A Sohan Singh vs Dhan Raj Sharma l983 2 RLR 465 and Bhanu Aththayya vs Comdr
Kaushal  Ors 1979 2 RCJ 338 approved
Mrs Winifred Ross and Anr
vs Mrs Ivy Fonseca and Ors AIR 1984 SC 458 distinguished