ivil Appeals Nos
1148 1656 and 2341 of 1966
Appeals by special leave from the judgment and decree dated July 27 1965 of the Punjab High Court in Letters Patent Appeals Nos
13 to 15 of 1965
Prem Chand Jain and Janardan Sharma for the appellants in all the appeals
DD Sharma for respondents Nos 1 iv to xiii in all the appeals
The Judgment of the Court was delivered by Ramaswami J
These appeals are brought by special leave on behalf of the defendants against the judgment of the Punjab High Court dated 27th July 1965 in Letters Patent Appeals Nos 13 and 14 of 1965
Dhara Singh respondent No 2 executed three sale deeds with regard to lands at village Bhadani Tehsil Jhajjar Rohtak in favour of the appellants in all the three appeals
The first sale was of land measuring 27 kanals and 4 marlas dated September 20 1960 the second was of land measuring 36 kanals and 19 marlas dated November 23 1960 and the third was of land measuring 33 kanals and 18 marlas dated March 6 1961
Neki deceased who was the father s brother of Dhara Singh vendor instituted three suits in the court of Subordinate Judge at Jhajjar for possession of the aforesaid lands covered by the three sales on the ground that he had a superior right of pre emption on the basis of his relationship with the vendor as against the appellants under section 151a of the Punjab Pre emption Act 1913 Punjab Act 1 of 1913
These suits were contested by the appellants
After hearing the contentions of the rival parties the Subordinate Judge granted decrees in ail the three suits in favour of the plaintiffs
In suit No 311 of 1961 the decree stipulated that the plaintiff should deposit the amount of Rs 3500 in court on or before 15 1 1963
In suit Nos 368 and 369 of 1961 the condition was that the plaintiffs should make the deposit of Rs 5000 and Rs 7000 respectively in court on or before 15 1 1963
The appellants took the matter in appeal before the Senior Subordinate Judge who by his judgment dated 30th January 1963 dismissed the appeals against the decrees in 835 suits Nos 313 and 369 of 1961 and modified the decree in suit No 368 of 1961 to the extent that the plaintiff was called upon to deposit a further sum of Rs 2000 on or before 1 3 1963
The appellants preferred regular Second Appeals Nos 280 281 and 282 of 1963 in the High Court against the decrees and judgment of the Senior Subordinate Judge Rohtak
The plaintiffs also preferred in the High Court appeal No 830 of 1963 against the increase made in the price of the land by the Senior Subordinate Judge Rohtak in the appeal arising out of decree in suit No 368 of 1961
While the appeals were pending in the High Court Neki plaintiff died on April 7 1963
After his death the appellants vendors in the three regular appeals moved applications under 022 r I of the Civil Procedure Code to bring on record of the appeals the legal representatives of Neki deceased plaintiff namely Dhara Singh Ramkishan and Balbir Singh
All the four appeals were heard and dismissed by Mr Justice Khanna by his judgment dated 17th September 1964
The appellants preferred appeals under the Letters Patent which were dismissed by a Division Bench of the Punjab High Court by a common judgment dated 27th July 1965
The claim of Neki for pre emption was based on sections 14 and 15 1 a of the Punjab Pre emption Act 1913 Punjab Act 1 of 1913
Section 14 states  No person other than a person who was at the date of sale a member of an agricultural tribe in the the same group of agricultural tribes as the vendor shall have a right of pre emption in respect of agricultural land sold by a member of an agricultural tribe
Section 15 I a reads as follows 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 in the son or daughter or son s son or daughter s son of the vendor SECONDLY in the brother or brother s son of the vendor THIRDLY in the father s brother or father s brother s son of the vendor FOURTHLY in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof 
 The Punjab Pre emption Act 1913 was amended by Punjab Act 10 of 1960 and section 6 of the amending Act inserted a new section 31 in the Principal which states as follows 836 No court shall pass a decree in a suit for pre emption whether instituted before or after the commencement of the Punjab Pre emption Amendment Act 1960 which is inconsistent with the provisions of the said Act
It is necessary also to refer at this stage to the provisions of 022 r1 and 022 r 1 1 which are to the following effect  022 r 1  The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives
022 r
I I  In the application of this Order to appeals so far as may be the word plaintiff  shall be held to include an appellant the word defendant  a respondent and the word suit an appeal
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 pre emption
The argument was that the statutory right of pre emption 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 he 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 stran Ter 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 pre emption 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 pre empt
In the present case Neki obtained decrees for pre emption in all the three suits against the appellants and these decrees were confirmed by the first appellate Court
While the second appeals were pending in the High Court Neki died and the question is whether under the provisions of 022 r I and 022 r I I of the Code of Civil Procedure the right to sue survived after the death of Neki
In this context it is necessary to consider the provisions of section 306 of the Indian 837 Succession Act XXIX of 1925
This section expresses a qualification of the maxim actio personalis mortiur cum persona to the extent that the section indicates that amongst causes of action which survive are included some actions of a personal nature that is to say personal actions other than those expressly excluded by the section itself
It is true that the right of pre emption under section 151a of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor
But under section 14 of the Act the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes as the vendor and the land of which pre emption is sought must be in respect of agricultural land sold to a member of the agricultural tribe
We are of opinion that if an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption
The view which we have taken is supported by the language of section 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre emption did not abate upon his death and that the legal representatives of Neki were properly brought on record of the second appeals under the provisions of 022 r 1 read with 022 r 10 of the Code of Civil Procedure
The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah vs Ram Kishan  Ors1
The question that arose for determination in that case was whether the right to sue for pre emption under s12 of the Punjab Laws Act upon a cause of action which accrued to a person in his life time passed at his death to his successor who inherited the property through which the right had accrued
The view of the Full Bench as regards the transfer by inheritance was that the general principle applied and that the right of pre emption passed with the land and the learned Judges distinguished the transfer by inheritance from the transfer of property by some voluntary act of the par ties
At p 641 of the Report Clark CJ observed  While therefore there is good reason why volun tary 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 1 133 P R 1907
838 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
A similar view was expressed by the Full Bench of the Allahabad High Court in Wajid Ali  Ors
vs Shaban  Ors
It was held that where a right of pre emption exists 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 necessary to emphasize that we are dealing in this case with the statutory right of pre emption under Punjab Act 1 of 1913 and its subsequent amendment and not with the right of preemption under the Mohammedan Law
In regard to the latter right it has been held that according to the Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre emption has not obtained his decree for pre emption in his life time the right to sue does not survive to his heirs See Muhammad Husain vs Niamet un nissa and Ors 2
It is not necessary for us to express any opinion on this point in the present case
On behalf of the respondent it was also pointed out that after the passing of the decree by the trial court Neki complied with the terms of the decree and made payments within the time given
It was said that under the terms of section 14 and section 1 5 1  a the title to the land in the pre emption suits must be deemed to have accrued to Neki from the date of such payment
It was argued that before his death Neki became the owner of the lands which were the subject matter of pre emption and the legal representatives of Neki were substituted in his place as representing the estate of Neki
In support of this proposition counsel relied upon the language of 020 r 141 which states  Where the court decrees a claim to pre emption in respect of a particular sale of property and the pur 2 1
L R 20 All
88 839 chase money has not been paid into Court the decree shall a specify a day on or before which the purchasemoney shall be so paid and b direct that on payment into Court of such purchase money together with the costs if any decreed against the plaintiff on or before the day referred to in clause a the defendant shall deliver possession of the property to the plaintiff whose title thereto shall be deemed to have accrued from the date of such payment but that if the purchase money and the costs if any are not so paid the suit shall be dismissed with costs
 In this connection counsel referred to the decision of the Punjab High Court in Ganga Ram  Ors
vs Shiv Lal1 where it was held that the title to the preempted property passes to the pre emptor under a pre emption decree on deposit of the purchase money in terms of the decree and was deemed to
pass to him from the date of the deposit
So far suit No 368 is concerned there is a dispute as to whether or not Neki deposited the amount under the decree within the time prescribed but as regards suits Nos 311 and 369 of 1961 it is admitted that the deceased Neki made the payment of the amount under the two decrees within the time prescribed
So far as these two decrees are concerned the deposit of the purchase money is an additional reason for holding that the legal representatives of Neki were properly substituted in his place in the proceedings of the second appeals
It was finally urged on behalf of the appellants that in any vent section 31 of the Punjab Act 1 of 1913 as amended by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of the substituted respondents
The argument was stressed that section 31 of the Punjab Act 1 of 1913 was in plain words retrospective in character and Dhara Singh and his two sons as legal representatives of Neki could not be granted a decree for pre emption
In our opinion this argument is wholly irrelevant
The reason is that the Amending Act came into force on February 4 1960 and Neki instituted the present suits for pre emption long after this date
Even the three sales of land were effected after the promulgation of the Amending Act
Reliance was placed on behalf of the appellants on the decision of this Court in Ram Sarup vs Munshi  Ors1 but the material facts of that case are quite different
It appears that the claim of pre emption in that case was based upon section 15c thirdly  of the Punjab Pre emption Act 1913 which states 1 66 P L R 1964 251
2 840 Subject to the provisions of section 14 the right of preemption in respect of agricultural land and village immoveable property shall vest a where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned or held is by all the co sharers jointly in the persons in order of succession who but for such sale would be entitled on the death of the vendor or vendors to inherit the land or property sold b where the sale is of a share out of joint land or property and is not made by all the co sharers jointly firstly in the lineal descendants of the vendor in order of succession secondly in the co sharers if any who are agnates in order of succession c If no person having a right of pre emption under clause a of clause b seeks to exercise it thirdly in the owners of he estate   By section 4 of the amending Act Act 10 of 1960 section 1 5 of the parent Act was repeated and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons owning land in the estate  as the original section 15c thirdly  had done
Retrospective effect was given to the provision by the insertion of a new section 31 in the
parent Act
The question for consideration was that whether by reason of this amendment in the law the respondent was entitled to the benefit of the decree which he obtained under the previously existing enactment
It was the case of the plaintiff that he owned land in the estate  whereas the vendee did not own land there
The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an estate  sought to prove that he too owned land in the same village and estate  but in this he failed
As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial court on Novber 8 1951 and an appeal and second appeal therefrom were also dismissed
The question was whether the respondent was entitled to a decree in view of section 31 of the Punjab Pre emption Act 1913 as amended by Punjab Act 10 of 1960 which came into force on February 4 1960
It was held by this Court that in view of the plain language of section 3 1 the substantive law enacted by the legislature in the amended section 15 of the Pre emption 841 Act should be applied and the decree for pre emption in favour of the first respondent should be set aside
It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in Ram Sarup vs Munshi  Ors
1 has no application to the present case
In Ram Sarup s case1 the right of the plaintiff to pre empt was extinguished retrospectively in the present case Neki s right to sue has not been extinguished Neki had the right of pre emption under the Amended Act at the time he instituted the suit and Neki s right was not extinguished on his death but passed to his legal representatives
For the reasons expressed above we hold that these appeals have no merit and must be dismissed with costs
There will be one set of hearing fee
YP 1  Appeals dismissed


Summary:
By section 4 of the Amending Act Punj
Act 10 of 1960 section 15 of the Punjab Pre emption Act 1913 was repealed and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons owning land in the estate  as the original section 15c thirdly  had done
Retrospective effect was given to the provisions by the insertion of new section 31 in the parent Act
In respect of sales effected after the promulgation of the Amending Act one N filed suits and obtained decrees for pre emption in all suits against the appellants under section 151a of the Punjab Pre emption Act
These decrees were confirmed by the first appellate court
While the second appeals were pending in the High Court N died and his legal representatives were brought on record
The High Court dismissed the appeals
In appeals to this Court it was contended that i the statutory right of pre emption under the Punjab Preemption 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 and ii section 31 of the Act as amended retrospectively by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of substituted legal representatives
HELD  The appeals must be dismissed
i The statutory right of pre emption 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 persons entitled to pre empt
The right of pre emption under section 151 a of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor
But under section 14 of the Act the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes as the vendor and the land of which preemption is sought must be in respect of agricultural land sold to a member of the agricultural tribe
If an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption
This view is sup ported by the language of section 306 of the Indian Succession Act and therefore the claim of N for pre emption did not abate upon his death and his legal representatives were properly brought on record of the second appeals under the provisions of 0 22 r 1 read with 0 22 r 10 of the Code of Civil Procedure
836 G 837 B D Faqir Ali Shah vs Rani Kishan  Ors
133 PR 1907 and Wajid Ali  Ors
vs Shaban  Ors
1LR 31 All 623 approved
Muhammad Husain vs Niamat un nissa  Ors
ILR 20 All 88 referred to 834 ii The Amending Act came into
force long before N instituted the present suits
Even the sales of land were effected after the promulgation of the Amending Act
In Ram Sarup s case the right of the plaintiff to pre empt was extinguished retrospectively in the present case N s right to sue has not been extinguished
N had the right of pre emption under the Amended Act at the time he instituted the suit and N s right was not extinguished on his death but passed to his legal representatives
839 G Ram Sarup vs Munshi  Ors
1963 3 SCR 858 distinguished