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PETITIONER: KARAN SINGH & ORS

       Vs.

RESPONDENT: BHAGWAN SINGH (DEAD) BY L.RS. & ORS.

DATE OF JUDGMENT:       24/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (1)   618        1996 SCALE  (1)594

ACT:

HEADNOTE:

JUDGMENT:                             W I T H                  CIVIL APPEAL NO. 2356 OF 1996          (Arising out of SLP (C) No.14372 of 1986)                         J U D G M E N T K. Ramaswamy, J.      Leave granted.      Substitution of legal representatives of the first respondent is allowed.      Bhagwan Singh, the respondent had sold 48 : canals of land from undivided joint family properties, but in  specie to  Prithvi, Rattan,  Krishan sons of Banwari and Karan Singh son of Sis Ram on June 15, 1978. Admittedly, they were  strangers to  Bhagwan Singh  and were resident of village Malkos.  The lands  are situated  in village Kayala. Though the sale deed was questioned by the wife and children of  the  respondent,  the  litigation  proved  unsuccessful. Prithvi Singh  and Krishan  have subsequently sold 34 canals 13 marlas  purchased from  Bhagwan Singh  to the  appellant. Rattan Singh  also has  sold 13  kanals 7 marlas of the said land on May 18, 1982. Bhagwan Singh, thereafter, filed the suit for  pre-emption under  Punjab Pre-emption  Act,  1913. Apart from  other pleas,  the principle  plea was that being co-owner,  he   is  entitled  to  pre-emption  of  the  land purchased  by   the  appellant.   Though,  the  trial  Court dismissed the  suit, on appeal, the suit was decreed and the High Court in Second Appeal No.2671/86 by judgment and order dated October  29, 1986  upheld it.  Hence  this  appeal  by special leave.      Shri Baggas  the learned  counsel  for  the  appellant, contended  that  Bhagwan  Singh,  having  himself  sold  the property in spieces to strangers from whom the appellant had purchased, has  no right  to exercise  the   right  of  pre- emption under  Section 15  of the  Act. Alternatively, it is contended that Haryana State legislature has amended Section 15 of  the Act  by Amendment  Act 10  of 1995 which has come into effect  from May 7, 1995 substituting Section 15 of the

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principal Act  whereunder the right of pre-emption is vested only in  a tenant  who held  the land  under tenancy  of the vendor or part of the vendor’s land sold.      Shri A.K.  Sen. the  learned  senior  counsel  for  the respondents, contended  that Bhagwan Singh, being a co-owner with his  co-parcenars or  joint owners,  is entitled  under Section 15  to exercise the right of pre-emption statutorily given to  a co-owner.  A stranger cannot be inducted against the wishes  of the  co-owners into the co-parcenary or joint family property. Bhagwan Singh, having undivided interest in the co-parcenary,  had a  right to  lay the  suit  for  pre- emption under Section 15. The subsequent amendment is of no avail since the suit had already been decreed and this Court can  confirm the  decree  validly  passed  before  the Amendment Act  had come into force. Therefore, the appellate Court and  the High  Court were right in granting decree for pre-emption.      Having  given   our  anxious   consideration   to   the respective  contentions,   we  are  of  the  view  that  the contentions of Shri Bagga merit acceptance. It is seen  that Bhagwan Singh  himself had sold the land to the strangers to the family.  The lands  sold were  in specie   from  the co- parcenary property.  Having inducted  the strangers into the property, he  cannot object  to his    vendees  selling  the property to  the third  parties and   claim  right  of  pre- emption from  them. In a case of pre-emption as in any other the plaintiff  has to establish a number of facts to succeed in his  claim.   It is  hardly necessary  to point  out that cases of  pre-emption  are  no  exception  to  the  rule  of estoppel to  be found in Section 115, Evidence Act. The plea of estoppel  may be  grounded on  an indefinite  variety  of facts. But the precise question for consideration is whether in a  case where  the purchaser  buys property relying on an implied assurance  of the  pre-emptor that  he will not pre- empt the  purchaser can  invoke  the  doctrine  of  estoppel against  the  pre-emptor.  Having  sold  the  lands  to  the strangers, he  cannot plead   invalidity of the title of his vendees selling  the same  lands to  another stranger on the ground that the title  is invalid, due to pre-emption right, under the Act.      We appreciate  that other  co-owners might have a right since they  may seem  to object to the strangers coming into the  co-parcenary   estate  jointly  held  by  all  the  co- parcenaries or  co-owners. Bhagwan  Singh, therefore,  could not validly lay the suit for pre-emption.      It is settled law that the ’right’ to clain pre-emption must be  available at the date of sale, the date of suit and the date on which the decree is passed. In Amarjeet Kaur vs. Pritam Singh  [AIR 1974 2068], this-Court had held that when appeal against  a decree is pending, the Court of appeal has seisin of  the whole  case and  the whole matter becomes sub judice again  though for  certain purposes, i.e., execution, the decree  is regarded  as final.  The decree  of the trial Court gets  merged with  the decree  of the appellate Court. Therefore, the Court of appeal shall have all the powers and shall perform  as nearly  as may  be, the same duties as are conferred and imposed on the Court of original jurisdiction. When the  appeal, therefore, is pending in this Court, it is a continuation  of the  origlnal proceedings  and the entire issue is at large. It is well settled law that the Court can take judicia1  notice of  the change  in law  and mould  the relief on  the basis of the rights altered under the amended law. Though  the appellate  court reversed the decree of the trial Court  and granted  to Bhagwan Singh the right of pre- emption, his  entitlement to  relief is  at large  when  the

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matter  is   pending  consideration   before   this   Court. Therefore, the  right to  pre-emption should be available at all the  stages including  the final  stage  to  affirm  the decree. This  Court would  take judicial  notice of  the law prevailing as on the date of the order or judgment and apply relevant provisions  of law prevailing on that day and mould the relief  on the  basis of  that law. In view of the facts that Haryana  Amendment Act,  10 of  1995  came  into  force w.e.f. July  7, 1995,  the only  person entitled  under  the amended law,  to avail  the right  of  pre-emption,  is  the tenant whose  vendor’s had  sold the whole or a part thereof to the third parties. It would, therefore, be clear that as on  date, Bhagwan Singh has no right to claim pre-emption under the Act, as amended under the Amendment Act, 1995.      The appeals  are accordingly  allowed. The judgment and order of  the High  Court and the decree and judgment of the appellate Court  are set  aside and that of the trial Court, i.e., Sub-Judge,  Second Class,  Bhiwani made on October 31, 1985 in  suit No.201/83 is restored. In conclusion, the suit stands dismissed  but, in  the  circumstances,  parties  are directed to bear their own costs.