SAC106/1998 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Civil Special Appeal No.106/1998 In S.B. Civil First Appeal No.18/1972 Smt. Ginni Devi Vs. Brij Mohan Lal (deceased) through legal heirs, Radha Ballabh Haldia and Others Date of Order ::: 16.11.2010 Present Hon'ble the Acting Chief Justice Mr. Arun Mishra Hon'ble Mr. Justice Mohammad Rafiq Shri Sagar Mal Mehta, Senior Advocate with Shri Harsh Sharma, Counsel for appellant None present for respondents #### By the Court:- Instant intra-court appeal has been preferred as against decision rendered by Single Bench on an application filed under Order 22 Rule 9 CPC to hold that appeal has abated on death of original plaintiff, who had filed suit for pre-emption. The Single Judge has opined that under customary law right of pre-emption is heritable as such appeal can be continued by legal heirs of deceased plaintiff. Hence, there is no abatement of cause of action on death of original plaintiff; appeal can continue and is pending consideration for decision on merits before Single Bench. SAC106/1998 // 2 // Aggrieved by order passed by Single Bench, instant intra-court appeal has been preferred. Shri Sagar Mal Mehta, learned Senior Counsel appearing on behalf of appellant, has submitted that Single Bench has ignored and overlooked distinction between right of pre- emption based on Mohammedan law and right of pre-emption which was involved in decision rendered by Apex Court in Kanta Rani alias Kanta Devi and Another Vs. Rama Rani – (1988) 2 SCC 109, in which decision it has been laid down by Apex Court that under Mohammedan law such right of pre-emption is not heritable whereas customary law in question in aforesaid decision it was heritable. Counsel has submitted that in Jaipur city custom of pre- emption is based upon Mohammedan law and has been borrowed from it, as observed in several decisions of this Court which learned counsel has referred to. Thus, it is submitted that distinction has been ignored under law which is based upon custom of pre-emption based upon Mohammedan law and custom which was prevalent in Punjab. Mohammedan law holds field in instant case. The decision rendered by Single Bench being contrary to law deserves to be set- aside. SAC106/1998 // 3 // None appeared on behalf of respondents despite service. It is appropriate to refer various decisions which have been rendered by this court with respect to origin of custom of pre- emption in Jaipur. In S.B. Civil First Appeal No.18/1972 - Radhaballabh v. Pushalal, decided on 27.08.1973, it has been observed in the context and factual matrix that vendor, vendee and preemptor were all Hindus, the right of pre-emption was claimed on the basis of immemorial custom prevailing in the city of Jaipur. It is well settled by series of decision of Supreme Court and other High Courts that when a custom of pre-emption established to prevail amongst non-muslims in a particular locality it must be presumed to be founded on and co-extensive with the Mohammedan law unless contrary is shown. In Panch Gujar Gaur Brahmans v. Amarsingh and Others – AIR 1954 Rajasthan 100, a full Bench of this court has laid down that right of pre-emption is not a right which attaches to the land but is a personal right. The right is not one which is in existence prior to the sale but arises only when there is a valid and complete sale and in case of no SAC106/1998 // 4 // other alienation. It is a right which comes into existence in persons who have been described as Shafi Sharik, Shafi-i-Khalit or Shafi-i-jar and according to Mohammedan Law this is a personal right of the preemptor, which is lost if the preemptor dies without enforcing the same by a suit. A Full Bench of Allahabad High Court in Mohd. Ismail v. Abdul Rashid and Others – AIR 1956 Allahabad 1, has laid down that in Mohammedan law when right of pre-emption is claimed and there is death of preemptor before decree, right does not survive to the heirs. A Single Bench of this Court in Pyare Mohan v. Rameshwar and Others – AIR 1980 Rajasthan 116, has laid down the law to the similar effect. In Kailash Chandra & Others v. Smt. Gyarsi Devi and Others – 1987(1) WLN 10, a Single Bench of this Court while dealing with Rajasthan Pre-emption Act, 1966 has laid down that legal representatives cannot continue suit or appeal proceedings. Right of pre-emption under aforesaid Act does not survive to heirs. From aforesaid decisions it is apparent that in case custom of pre-emption is established to prevail amongst non-muslims in a particular locality it must be presumed to be SAC106/1998 // 5 // founded on and co-extensive with the Mohammedan law unless contrary is shown. Learned Single Judge has not gone into aforesaid aspect while applying decision of Apex Court in Kanta Rani Vs. Rama Rani (supra). It was necessary to go into aforesaid question as to what is the custom prevailing in Jaipur and whether on the basis of custom prevailing in Jaipur with respect to pre-emption whether legal heirs can continue with appeal proceedings when there is no decree in favour of preemptor. In instant matter, suit for pre- emption has been dismissed by trial court. This we say on the strength of observations made by Apex Court in Kanta Rani Vs. Rama Rani (supra) itself which has been relied upon by Single Bench for dismissing the appeal. The Apex Court in Paragraph 6 of judgment in Kanta Rani's case (supra) has laid down thus:- “6. 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 SAC106/1998 // 6 // 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 v. Neki – AIR 1968 SC 1205, namely that the pre-emptor 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 v. Niamet-un-nissa – ILR 20 All 88, that under Muhammadan 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 lifetime 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 case 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 Muhammadan 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 Shah v. Ram Kishan – 133 PR 1907, which is extracted in Hazari case 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 SAC106/1998 // 7 // 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 on 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 It is apparent from aforesaid decisions that there is a distinction between custom based upon Mohammedan law. The presumption is also available when a custom is established to prevail amongst non-muslims in a particular locality to be founded on and co-extensive with the Mohammedan law unless contrary is shown. This question was necessary to be gone into. We request Single Bench to decide aforesaid question at the time of final decision itself of appeal. Let the question be decided afresh after hearing the parties. The instant appeal is accordingly allowed. The impugned order is set-aside. The SAC106/1998 // 8 // pending appeal be decided afresh by Single Bench. No costs. (Mohammad Rafiq) J. (Arun Mishra) Acting CJ. //Jaiman//