http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: KANTA RANI C KANTI DEVI & ANR.

       Vs.

RESPONDENT: RAMA RANI

DATE OF JUDGMENT08/02/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) OJHA, N.D. (J)

CITATION:  1988 AIR  726            1988 SCR  (2) 895  1988 SCC  (2) 109        JT 1988 (1)   270  1988 SCALE  (1)264

ACT:      Civil Procedure Code, 1908: Order 22 Rule 3-Pre-emption suit-Whether legal  representatives of  a tenant entitled to be brought on record.      Punjab Pre-emption  Act, 1913: Section 15-Whether right to  pre   emption  conferred  on  tenant  by  customary  law heritable or  not-Whether any  distinction between  right of pre-emption arising under Statute law and customary law-When right of  tenancy heritable  every incidental  right thereto heritable.

HEADNOTE: %      The property  in dispute was sold by its original owner to the  respondent. Claiming  that there  was a local custom under which  the tenant  in occupation  of a  building had a right of  pre-emption,  the  tenant  of  a  portion  of  the property filed a suit for pre-emption and valued the portion at  Rs.10,000.  The  suit  was  opposed  by  the  respondent contending that  there was no such customary law and that in case the decree was passed, the plaintiff should be asked to pay Rs.20,000, as consideration.      During the  pendency of  the suit, the plaintiff-tenant died and  the appellants, his legal representatives filed an application under  Order 22, Rule 3 of Civil Procedure Code, for being  brought  on  record  in  place  of  the  original plaintiff and  for permission to prosecute the suit further. The respondent,  opposed the application contending that the right of  pre-emption,  even  if  it  existed,  was  only  a personal right  of the  tenant and  was not  heritable,  and consequent on  his death  the right  to sue did not survive, and therefore the suit was liable to be dismissed.      Aggrieved by  the aforesaid order, the respondent filed a revision petition before the High Court, which allowed the same following  a Full  Bench  decision  of  that  Court  in Chandrup Singh  and Anr. v. Data Ram and Anr., [1985] Punjab Law Reporter  771, that  a statutory  right  of  pre-emption resting only  on blood  relationship created  by s. 15(1) of the Punjab Pre-emption Act, 1913 was not a heritable one and did not  devolve on the heirs on the death of the pre-emptor before the grant of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

896 the  decree   in  the  suit,  and  declared  that  the  suit instituted by the tenant had abated on his death.      Allowing the appeal, ^      HELD: While  a right of pre-emption does not give right to an  interest in  immovable property, 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 the right of pre-emption arising under the statutory law and the customary law. [900F, H]      In the  instant case,  the plaintiff  had acquired  the said right  of pre-emption  under customary law by virtue of right of tenancy which he had in the portion of the property in his  possession and  had instituted  a suit for enforcing that right.  The fact  that the  pre-emptor had  died at the trial stage cannot make any difference. [900G]      The right to sue therefore survived on the death of the plaintifftenant 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-tenant under Order 22, Rule 3 of the Civil Procedure Code. [902B-C]      The trial court was directed to bring the appellants on record as  legal representatives  of the  deceased-plaintiff and to dispose of the suit on merits. [902C]      Chandrup Singh  and Another  v. Data  Ram and  Another, [1982] Punjab Law Reporter 771, over-ruled.      Hazari &  Ors. v.  Neki &  Ors., [1968]  2 S.C.R.  833, followed.      Wajid Ali  & Anr. v. Shaban & Ors., I.L.R. 31 Allahabad 623, approved.      Muhammad Husain  v. Niamet-un-nissa and Ors., I.L.R. 20 Allahabad 88, distinguished.      Faqir Ali  Shah v.  Ram Kishan  & Ors.,  133 P.R. 1907, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 453 of 1988. 897      From the  Judgment and  Order  dated  5.3.1984  of  the Punjab and  Haryana High Court in Civil Revision No. 3411 of 1983.      E.C. Agarwala for the Appellants.      G.K. 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 Rs.23,000  under a  registered sale deed dated 11.7.1980. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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 26.8.1980 stating  that the  value of  the  portion  of  the property occupied  by him  was Rs.  10.000.  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 Rs.20,000 by  way of  consideration. During  the pendency of the suit,  Kishan Chand died on 8.8.1983. 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 v.  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 15(1)  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. v. Neki & Ors., [1968] 2 S.C.R. 833 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 15(1)(a)  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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 15(1)(a)  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 v. Ram Kishan &  Ors., 133  P.R.  1907  and  the  decision  of  the Allahabad High  Court in  Wajid Ali & Anr. v. Shaban & Ors., I.L.R. 31 Allahabad 623. In the latter decision, namely, the Wajid Ali’s  case (supra)  the High  Court of  Allahabad had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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  15(1)  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 v.  Niamet-un-nissa  and Ors., I.L.R.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

         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. N.P.V.                                      Appeal allowed 903