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

2. 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 fathers 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 15 (1) (a) 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 all 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 15th January, 1963. In Suits Nos. 368 and 369 of 1961 the condition was that the plaintiffs should make the deposit of Rs. 5,000/- and Rs. 7,000/- respectively in court on or before 15th January 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 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. 2,000/-on or before 1st March, 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 1983, 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 O. 22, R. 1 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.

Reasoning: 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.