Case: Hazari &amp; Ors Vs. Neki &amp; Ors

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 he 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 v. Shiv Lal, 66 Pun LR 251 = (AIR 1964 Punj 260 (FB)) where it was held that the title to the pre-empted 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 regard 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.7. It was finally urged on behalf of the appellants that, in any event, S. 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 S. 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 preemption 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 v. Munshi, (1963) 3 SCR 858 = (AIR 1963 SC 553 ) but the material facts of that case are quite different. It appears that the claim of pre-emption in that case was based upon S.. 15 (c) thirdly of the Punjab Pre-emption Act 1913 which states :"Subject to the provisions of S. 14 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 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) or clause (b) seeks to exercise it :-.........................................................................................................................................thridly, in the owners of the estate;..."By S. 4 of the amending Act (Act 10 of 1960) S. 15 of the parent Act was repealed and in its place was substituted a new provision which omitted to confer a right of preemption in the case of persons owning land in the estate as the original S. 15 (c) thirdly had done. Retrospective effect was given to the provisions by the insertion of a new S. 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 November 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 S. 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 S. 31, the substantive law enacted by the legislature in the amended S. 15- of the Pre-emption 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 (1963) 3 SCR 858 = (AIR 1963 SC 553 ) has no application to the present case. In Ram Sarups case. (1963) 3 SCR 858 = (AIR 1963 SC 553 ) the right of the plaintiff to pre-empt was extinguished retrospectively, in the present case Nekis 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 Nekis right was not extinguished on his death but passed to his legal representatives.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. 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 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 retransfer 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 foundations of the right being the avoidance of the inconvenience and disturbance 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 owners 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 toare 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 S. 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 the, the legal representatives of Neki were properly brought on record of the second appeals under the provisions of O. 22, R. 1 read with O. 22. R. 10 of theCode of Civil Procedure.It is necessary to emphasize that we are dealing in this case with the statutory right of pre-emption under Punjab Act l of 1913 and its subsequent amendment and not with the right of pre-emption 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 lifetime the right to sue does not survive to hiswas held by this Court that in view of the plain language of S. 31, the substantive law enacted by the legislature in the amended S. 15- of the Pre-emption 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 (1963) 3 SCR 858   = (AIR 1963 SC 553  ) has no application to the present case. In Ram Sarups case. (1963) 3 SCR 858   = (AIR 1963 SC 553  ) the right of the plaintiff to pre-empt was extinguished retrospectively, in the present case Nekis 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 Nekis right was not extinguished on his death but passed to his legal representatives.