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PETITIONER: BISHAN SINGH & OTHERS

       Vs.

RESPONDENT: KHAZAN SINGH & ANOTHER

DATE OF JUDGMENT: 20/05/1958

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. DAS, S.K.

CITATION:  1958 AIR  838            1959 SCR  878

ACT: Pre-emption, nature of the right-Pre-emptor filing suit  and obtaining decree-Second pre-emptor of equal degreefiling suit  for  Pre-emption First pre-emptor  deositing  purchase moneand  obtainIng  Possession-If suit  of     second  Pre- emptor cansucced-Lis  penden-Scope--Punjab   Pre-emptor Act (Pun.  1 Of 1913),ss. 17, 28.

HEADNOTE: Upon the sale of certain village land the appellants filed a suit  for  pre-emption, and a compromise decree  was  passed allowing  pre-emption provided the appellants deposited  the purchase  amountbvacertaindate.  The appellants Posited  the amount   and  got  Possession  of  the  land.   Before   the appellants deposited 879 the amount, the respondents who were pre-emptors of an equal degree, filed a suit to enforce their right of  pre-emption. The  appellants  contended that the land  could  be  divided between two equal pre-emptors only when both the suits  were pending  before the court at the time of the passing of  the decree,  and that the appellants having obtained the  decree and paid the amount got substituted in place of the  vendees and  the  respondents could succeed only by  establishing  a superior  right of pre-emption.  The  respondents  countered that  they had a statutory right under s. 17 Of  the  Punjab Pre-emption  Act to share the land with the  appellants  and that the appellants, having been substituted in place of the vendees  Pendente  lite,  were hit by the  doctrine  of  lis pendens and could not claim a higher right than the vendees: Held,  that the respondents’ suit could not succeed as  they (lid  not  have  a superior right of  pre-emption  over  the appellants  who  had  become substituted  in  place  of  the vendees  upon  payment  of the purchase  money  under  their decree. A  pre-emptor has two rights: (i) inherent or primary  right to the offer of a thing about to be sold and (2) a secondary or  remedial right to follow the thing sold.  The  secondary right  is  simply a right of substitution in  place  of  the original vendee.

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Dhani  Nath  v. Budhu, 136 P. R. 1894 at P. 511  and  Gobind Dayal v. Inayatullah, (1885) I.L.R. 7 All. 775, followed. In  a suit for pre-emption the plaintiff must show that  his right is superior to that of the vendee and that it subsists at  the time he exercises his right.  This right is lost  if before  he  exercises  it another person with  an  equal  or superior right has been substituted in place of the original vendee.  The Punjab Preemption Act defines the right of pre- emption and provides a procedure for enforcing it.  It  does not enlarge the content of this right nor does it  introduce any change in the incidents of the right.  Section 28 Of the Act  does  not preclude the Court from giving a  decree  for pre-emption  in  a  case  where the  suits  are  not  joined together and one of the suits has been decreed separately. The  doctrine  of  lis pendens applies only  to  a  transfer Pendente  lite, but it cannot affect a  pre-existing  right. If  the sale is a transfer in recognition of  a  preexisting and  subsisting  right,  it would not  be  affected  by  the doctrine,  as  the  transfer does not  create  a  new  right Pendente   lite   but  if  the  preexisting   right   became unenforceable  by  reason of limitation  or  otherwise,  the transfer,  though ostensibly made in recognition of  such  a right, in fact creates only a new right pendente lite.   The appellants’ right of pre-emption was subsisting and was  not barred  by limitation at the time of the transfer  in  their favour  as they had filed a suit and had obtained  a  decree and the coercive 112 880 process was still in operation.  Consequently the appellants were  not  hit  by the doctrine of  lis  pentlens  and  they acquired  an indefeasible right to the land when  they  took possession  of  it after depositing the  purchase  money  in court. Mool  Chand  v. Ganga jal, (1930) I.L.R. 11  Lah.  258,  Mt. Sant  Kaor v. Teja Singh, I.L.R. [1946] Lah.  467,  Mohammad Sadhiq v. Ghasi Ram, A.I.R. 1946 Lah. 322 and Wazir Ali Khan v. Zahir Ahmad Khan, A.I.R. 1949 East Punj. 193, approved. Kundan Lal v. Amar Singh, A.I.R. 1927 All. 664, disapproved. The  right  of  pre-emption  is  effectively  exercised   or enforced  only when the pre-emptor has been substituted  for the vendee.  A conditional decree whereunder the  pre-emptor gets possession only if he pays a specified amount within  a prescribed time and which also provides for the dismissal of the  suit  in case the condition is  not  fulfilled,  cannot bring  about the substitution of the decree holder  for  the vendee before the condition is fulfilled.  Such substitution takes  effect  only  when  the  decree  holder  fulfils  the condition and takes possession of the land. Deonandan  prashad Singh v. Ramdhari Choudhyi, (1916) L.  R. 44 I. A. 80, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 255 of 1954. Appeal  by Special Leave from the judgment and decree  dated April  29, 1953, of the former Pepsu High Court in R. S.  A. Nos.  57  and 130 of 1952, arising out of the  judgment  and decree  dated  March 8, 1952, of the Court of  Addl.   Dist. Judge, Faridkot, in Civil Appeal No. 10 of 1952, against the judgment and decree dated December 4, 1951, of the Court  of ‘ubJudge 11 Class, Faridkot, in File No. 13 of 1951. Jagan Nath Kaushal and K. L. Mehta, for the appellant. Kapur   Chand   Puri  and  Tarachand  Brijmohan   Lal,   for

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respondents Nos. 1 to 3. 1958.  May 20.  The Judgment of the Court was delivered by SUBBA  RAO  J.-This - appeal by Special  Leave  against  the judgment  and decree of the High Court of Patiala  and  East Punjab   States   Union  raises  an   interesting   question pertaining to the Law of Preemption. 881 The  material  facts are not in dispute and may  be  briefly stated:  The dispute relates to a land measuring 179  kanals and  2 marlas, situate in village Wanderjatana.   On  August 26, 1949, defendants 3 to 7 sold the said land to defendants I  and 2 for a consideration of Rs. 37,611.  On  August  26, 1950, defendants 8 to 11 instituted a suit, Suit No. 231  of 1950  (Exhibit  P.  26/1) in the Court  of  the  Subordinate Judge, 11 Class, Faridkot, to pre-empt the said sale on  the ground,  among others, that they bad a right of  preemption. On January 6, 1951, the vendees, i. e., defendants I and  2, and  the  plaintiffs  therein, i. e.,  defendants  8  to  11 (appellants   in  the  present  appeal),  entered   into   a compromise.  Under the terms of the compromise, the  vendees admitted that they had received Rs. 1,700 from defendants  8 to II and that defendants 8 to 1 1 agreed to pay the balance of  the consideration, amounting to Rs. 35,911 on  the  27th April, 1951,.  It was further agreed that on the payment  of the  said amount, they should get possession through  Court. As  the  amount  agreed  to be paid was  in  excess  of  the pecuniary  jurisdiction  of  the Court  of  the  Subordinate Judge,  they filed the compromise deed in the Court  of  the District Judge and on the basis of the said compromise,  the District Judge made a decree dated January 23, 1951.  It was provided  in  the decree that in case defendants 8  to  I  I failed to pay the balance to the vendees on April 27,  1951, the suit should stand dismissed and that if the said balance was paid on that date, the vendees should deliver possession of  the  land  in  dispute to  them.   Defendants  8  to  11 deposited the balance of Rs. 35,911 on April 23, 1.951,  and got possession of the land on May 17, 1951. Before the said defendants (8 to 11) deposited the amount in Court  under  the  terms  of  the  compromise  decree,   the resondents herein, claiming to be owners of land in the same patti,  filed  Suit  No.  13 of 1951 in  the  Court  of  the Subordinate  Judge,  11 Class, Faridkot,  to  enforce  their right  of  pre-emption.  To that suit the  original  vendors were  impleaded  as  defendants  3  to  7,  the  vendees  as defendants  I  and 2 and the plaintiffs in Suit No.  231  of 1950 as defendants 8 to 11. 882 Defendants  8 to 11 contested the suit, inter alia,  on  the grounds  that  the  plaintiffs had no  right  of  preemption superior  to  that of theirs, that the suit  was  barred  by limitation and that the whole of the sale consideration  had been fixed in good faith and paid. The learned Subordinate Judge found all the issues in favour of  defendants 8 to 11 and dismissed the suit.  On the  main issue  he  found that the said defendants,  by  obtaining  a decree for pre-emption before the rival claimants had  filed their  suit,  had become vendees through Court  and  so  the plaintiffs  could  not succeed unless they  had  a  superior right. The  plaintiffs  preferred  an  appeal  to.  the   Additionl District  Judge,  Faridkot, against the  said  decree.   The District Judge held that the plaintiffs and defendants 8  to 11  had  equal rights of pre-emption and  were  entitled  to share the sale in the proportion of 3/7 and 4/7 respectively on payment of the proportionate amount of the consideration.

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On the main question, he took the view that defendants 8  to 11  did  not exercise their right of  pre-emption  when  the present suit was instituted for the reason that by the  date of  the  filing  of  the suit they  had  not  deposited  the purchase  money  in Court.  Both the  parties  filed  Second Appeals  against the decision of the District Judge  in  the High  Court of Patiala questioning that part of  the  decree which went against them.  The High Court upheld that part of the  decree of the learned District Judge holding  that  the plaintiffs were entitled to a share in the suit property but remanded the suit to the District Judge to give his findings on the following two questions: (1) What was the amount paid by  defendants 8 to 11 to the original vendees  and  whether they paid it in good faith; (2) Whether the case would  come under  s.  17C,  cl.  (e)  of  the  Punjab  Pre-emption  Act (hereinafter  to be referred to as the -Act).  As  the  High Court  refused  to certify that the case was a fit  one  for appeal  to the Supreme Court, defendants 8 to  11  preferred the above appeal by obtaining special leave of this Court. The learned Counsel for the appellants raises the  following two contentions before us: (1) Section 28 of 883 the Pre-emption Act indicates that a property can be divided between  equal  pre-emptors in terms of s. 17  of  the  Pre- emption Act only when both the suits are pending before  the Court  at  the time of the passing of the decree ;  (2)  the appellants exercised their right of pre-emption by obtaining a  decree  or  at any rate when  they  deposited  the  money payable   under  the  decree  and  thereby  got   themselves substituted in place of the original vendees and thereafter, the  plaintiff’s can succeed only by proving their  superior right  to  them.  The learned Counsel  for  the  respondents countered  the  aforesaid  argument  by  stating  that   the plaintiffs,  being pre-emptors of equal degree, have  got  a statutory right under s. 17 of the Pre-emption Act to  share the  land  with the appellants, and the  appellants,  having been  substituted in place of the original vendees  pendente lite, are hit by the doctrine of lis _pendens and therefore, they cannot claim higher rights than those possessed by  the original vendees at the time of the filing of the suit. Before  attempting  to give a satisfactory answered  to  the question  raised,  it would be convenient at the  outset  to notice  and  define the material incidents of the  right  of pre-emption.   A concise but lucid statement of the  law  is given by Plowden J. in Dhani Nath v. Budhu (1) thus: A  preferential right to acquire land, belonging to  another person  upon the occasion of a transfer by the latter,  does not appear to me to be either a right to or a right in  that land.   It  is,jus ad rem aliens acquirendum and not  a  jus ?’In  re  aliena......... A right to the offer  of  a  thing about to be sold is not identical with a right to the  thing itself,  and  that is the primary right of  the  pre-emptor. The  secondary right is to follow the thing sold, when  sold without  the proper offer to the pre-emptor, and to  acquire it,  if  he  thinks  fit, in spite  of  the  sale,  made  in disregard of his preferential right." The  aforesaid passage indicates that a pre-emptor  has  two rights: (1) inherent or primary right, i.e., a right (1)136 P. R. 1894 at p. 5ii. 884 to  the offer of a thing about to be sold and (2)  secondary or remedial right to follow the thing sold. Mahmood  J.  in  his classic judgment  in  Gobind  Dayal  v. Inayatullah  (1) explained the scope of the secondary  right in the following terms:

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"  It  (right  of pre-emption) is simply  a  right  of  sub- stitution,  entitling  the pre-emptor, by means of  a  legal incident  to which sale itself was subject, to stand in  the shoes  of  the  vendee  in respect of  all  the  rights  and obligations arising from the sale, under which lie,  derived his  title.   It  is, in effect, as if in a  sale  deed  the vendee’s name were rubbed out and pre-emptor’s name inserted in its place". The  doctrine adumbrated by the learned Judge,  namely,  the secondary  right  of  pre-emption  is  simply  a  right   of substitution  in  place  of the original  vendee,  has  been accepted and followed by subsequent decisions. The general law of pre-emption does not recognize any  right to  claim a share in the property sold when there are  rival claimants.   It is well-established that the right  of  pre- emption is a right to acquire the whole of the property sold in preference to other persons (See Mool Chand v. Ganga  Jal (2)). The plaintiff is bound to show not only that his right is as good  as that of the vendee but that it is superior to  that of  the  vendee.  Decided cases have  recognized  that  this superior  right  must  subsist at the  time  the  pre-emptor exercises  his right and that that right is lost if by  that time  another person with equal or superior right  has  been substituted  in place of the original vendee.   Courts  have not  looked upon this right with great  favour,  presumably, for  the reason that it operates as a clog on the  right  of the  owner  to alienate his property.  The  vendor  and  the vendeeire,  therefore,  permitted to avoid  accrual  of  the right  of pre-emption by all lawful means.  The  vendee  may defeat  the  right by selling the property to a  rival  pre- emptor with preferential or equal right.  To summarize:  (1) The  right of pre-emption is not a right to the  thing  sold but a right to the offer of a thing about to be sold. (i) (1885) I.L. R. 7 All. 775, 809. (2) (1930) I.L.R. 11 Lah. 258, 273. 885 This right is called the primary or inherent right. (2)  The pre-emptor  has  a secondary right or a  remedial  right  to follow the thing sold. (3) It is a right of substitution but not  of re-purchase, i. e., the pre-emptor takes the  entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold  and not  a share of the property sold. (5) Preference being  the essence  of  the right, the plaintiff must have  a  superior right to that of the vendee or the person substituted in his place.  (6)  The right being a very weak right,  it  can  be defeated  by  all  legitimate methods, such  as  the  vendee allowing  the  claimant of a superior or equal  right  being substituted in his place. The  next  question  is whether this right  is  modified  or otherwise enlarged by the’ provisions of the Act.   Relevant provisions of the Act, material to the present purpose, read thus: Section  4: " The right of pre-emption shall mean the  right of  a  person  to  acquire  agricultural  land  or   village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to  redeem such property". Section  13: " Whenever according to the provisions of  this Act,  a right of pre-emption vests in any class or group  of persons  the  right may be exercised by all the  members  of such class or group joint, and, if not exercised by them all

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jointly,  by  any two or more of them jointly, and,  if  not exercised  by  any  two or more of  them  jointly,  by  them severally". Section  17:  " Where several pre-emptors are found  by  the Court to be equally entitled to the right of preemption, the said right shall be exercised,- (a)if  they  claim  as  co-shares,  in  proportion   among themselves  to the shares they already hold in the  land  or property ; (b)if  they claim as heirs, whether co-sharers or not,  in proportion  among themselves to the shares in which but  for such  sale, they would inherit the land or property  in  the event of the vendor’s decease without other heirs; 886 (c)if  they  claim as owners of the estate  or  recognised subdivision  thereof, in proportion among themselves to  the shares  which they would take if the land or  property  were common  land in the estate or the subdivision, as  the  case may be; (d)if they claim as occupancy tenants, in proportion among themselves  to  the  areas  respectively  held  by  them  in occupancy right; (e)in  any  other  case,  by  such  pre-emptors  in  equal shares." Section  19:  "  When  any  person  proposes  to  sell   any agricultural  land  or village immovable property  or  urban immovable  property or to foreclose the right to redeem  any village  immovable property or urban immovable property,  in respect of which any persons have a right of preemption, lie may give notice to all such persons of the price at which he is  willing to sell such land or property or of  the  amount due in respect of the mortgage, as the case may be. Such  notice  shall be given through any  Court  within  the local limits of whose jurisdiction such land or property  or any   part   thereof  is  situate,  and  shall   be   deemed sufficiently given if it be stuck up on the chaupal or other public place of the village, town or place in which the land or property is situate." Section  20: " The right of pre-emption of any person  shall be extinguished unless such person shall, within the  period of  three  months from the date on which the  notice  tinder section  19 is duly given or within such further period  not exceeding  one year from such date as the court  may  allow, present  to the Court a notice for service on the vendor  or mortgagee   of  his  intention  to  enforce  his  right   of -pre-emption.  Such notice shall state whether the preemptor accepts  the  price  or amount due on  the  footing  of  the mortgage  as  correct  or not, and if not, what  sum  he  is willing to pay." " When the Court is satisfied that tile said notice has been duly served on the vendor or mortgagee the proceedings shall be filed." Section  28: " When more suits than one arising out  of  the same sale or foreclosure are pending the plaintiff 887 in  each  suit shall be joined as defendant in each  of  the other  suits, and in deciding the suits the court  shall  in each  -decree  state  the order in which  each  claimant  is entitled to exercise his right". The  Act  defines  the right and provides  a  procedure  for enforcing  that right.  It does not enlarge the  content  of that right or introduce any change in the incidents of  that right.   Section 4 embodies the preexisting law by  defining the  right  as  a  right of a  person  to  acquire  land  in preference  to  other  persons  in  respect  of  -,ales   of

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agricultural  lands.  Section 13 cannot be read, as  we  are asked  to  do,  as a statutory recognition  of  a  right  of preemptors  of equal degree to exercise their rights  piece- meal  confined  to  their shares in the  land.   Section  13 confers  on  a  group  of persons,  in  whom  the  right  of preemption  vests, to exercise that right either jointly  or severally,  that is to say, either the group of  persons  or one  of them may enforce the right in respect of the  entire sale.   Section 17 regulates the distribution  of  preempted land  when  the  Court finds that  several  pre-emptors  are equally  entitled  to the right of  pre-emption.   But  this Section  applies  only  where (1) the right  is  yet  to  be exercised and (2) the pre-emptors are found by the Court  to be equally entitled to exercise the right.  The section does not confer the right on or against a person, who has already exercised  the  right and ceased to be a  preemptor  by  his being  legitimately  substituted in place  of  the  original vendee. (See Mool Chand v. ganga Jal (1) at p. 274 and Lokha Singh  v. Sermukh Singh (2)).  Sections 19 and 20  prescribe the  procedure for the exercise of the primary right,  while s.  28 confers a power on the Court to join together two  or more  suits arising out of the same sale, so  that  suitable directions may be given in the decree in regard to the order in  which each claimant is entitled to exercise  the  right. This  section  is enacted presumably to  avoid  conflict  of decisions  and finally determine the rights of  the  various claimants.   The  aforesaid  provisions  do  not  materially affect the characteristics of the right of pre- (1) (1930) I.L.R. 11 Lah. 258. 113 (2) A.I.R. 1952 Punj. 206, 207. 888 emption   as  existed  before  the  Act.   They  provide   a convenient and effective procedure for disposing of together different  suits,  arising out of the same  transaction,  to avoid  conflict of decisions, to fix the order  of  priority for  the exercise of their rights and also to  regulate  the distribution  of  the  preempted  land  between  rival  pre- emptors. The  provisions  do not in any way enable the  preemptor  to exercise  his right without establishing his superior  right over the vendee or the person substituted in his place or to prevent  the vendor or the vendee, by legitimate  means,  to defeat  his  right by getting substituted in  place  of  the vendee  a  pre-emptor with a superior right to or  an  equal right with that of the plaintiff. Nor  can we accept the argument of the learned  counsel  for the appellants that s. 28 precludes the Court from giving  a decree  for pre-emption in a case where the two  suits  were not  joined  together  but  one of  the  suits  was  decreed separately.   Section 28 enacts a convenient procedure,  but it  cannot affect the substantative rights of  the  parties. We  do  not see that, if the plaintiffs were entitled  to  a right  of  pre-emption,  they  would have  lost  it  by  the appellants   obtaining  a  decree  before   the   plaintiffs instituted  the  suit,  unless it be held  that  the  decree itself  had the effect of substituting them in place of  the original  vendees.   We  cannot, therefore,  hold  that  the plaintiffs’  suit is in any way barred under the  provisions of the Act. This  leads  us to the main question in this  case,  namely, whether the appellants having obtained a consent decree  oil January  23,  1951, in their suit against  the  vendees  and having paid the amount due under the decree and having taken delivery  of  the property and thus  having  got  themselves

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substituted   in   place  of  the  original   vendees,   can legitimately  defeat the rights of the plaintiffs,  who,  by reason  of  the  aforesaid substitution, were  only  in  the position  of  pre-emptors  of  equal  degree  vis-a-vis  the appellants and therefore ceased to have any superior rights. The  learned Counsel for the respondents contends  that  the appellants are hit by the doctrine of lis pendens and 889 therefore  the  act of substitution, which was  effected  on April 23, 1951, could not be in derogation of their right of pre-emption, which they have exercised by filing their  suit on  February 15, 1951.  It is now settled law in the  Punjab that the rule of lis pendens is as much applicable to a suit to  enforce the right of pre-emption as to any  other  suit. The  principle on which the doctrine rests is  explained  in the  leading case of Bellami v. Sabine (1), where  the  Lord Chancellor  said  that pendente lite neither  party  to  the litigation  can alienate............ the property so  as  to affect his opponent.  In other words, the law does not allow litigant parties, pending the litigation, to transfer  their rights  to the property in dispute so as to  prejudice  the- other party. As  a  corollary  to this rule it is  laid  down  that  this principle  will  not affect the right  existing  before  the suit.   The rule, with its limitations, was considered by  a Full  Bench of the Lahore High Court in Mool Chand v.  Ganga Jal (2).  In that case, during the pendency of a pre-emption suit,  the  vendee sold the property which was  the  subject matter  of the litigation to a person possessing a right  of pre-emption  equal to that of the pre-emptor in  recognition of  that person’s right of pre-emption.  This  re-sale  took place  before  the expiry of the period  of  limitation  for instituting a pre-emption suit with respect to the  original sale.  The Full Bench held that the doctrine of lis  pendens applied to preemption suits; but in that case, the resale in question did not conflict with the doctrine of lis  pendens. Bhide J. gave the reason for the said conclusion at page 272 thus: "  All  that the vendee does in such a case is to  take  the bargain  in  the assertion of his  pre-existing  pre-emptive right,  and  hence  the sale does  not  offend  against  the doctrine of lis pendens ". Another  Full  Bench of the Lahore High Court  accepted  and followed  the aforesaid doctrine in Mt.  Sant Kaur  v.  Teja Singh (3).  In that case, pending the suit for  pre-emption, the vendee sold the land purchased (i)  (1857) 1 De G. & J. 566; 44 E. R. 842. (2) (1930) I.L.R. 11 Lah. 258, 273.  (3) I.L.R. [1946]  Lah. 467, 890 by  him  to a person in recognition of a superior  right  of pre-emption. Thereafter, the second purchaser was  brought onrecord  and was added as a defendant to the  suit.   At the  time  of the purchase by the person having  a  superior right of pre-emption, his right to enforce it was barred  by limitation.   The  ]High Court held that  that  circumstance made  a  difference in the application of the  rule  of  lis pendens.   The  distinction between the  two  categories  of cases was brought out in bold relief at page 145 thus: "  Where  the  subsequent  vendee has  still  the  means  of coercing, by means of legal action, the original vendee into surrendering  the  bargain in his favour, a surrender  as  a result of a private treaty, and out of Court, in recognition of  the  right to compel such surrender by means of  a  suit cannot properly be regarded as a voluntary transfer so as to

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attract  the  application of the rule of lis  pendens.   The correct  way to look at the matter, in a case of this  kind, is to regard the subsequent transferee as having simply been substituted for the vendee in the original bargain of  sale. He can defend the suit on all the pleas which he could  have taken had the sale been initially in his own favour.  " "  However,  where the subsequent transferee  has  lost  the means of making use of the coercive machinery of the law  to compel the vendee to surrender the original bargain to  him, a re-transfer of the property in the former’s favour  cannot be looked upon as anything more than a voluntary transfer in the former’s favour of such title as he had himself acquired under  the original sale.  Such transfer has not the  effect of  substituting the subsequent transferee in place  of  the vendee in the original bargain.  Such a transferee takes the property  only subject to the result of the suit.   Even  if lie  is impleaded as a defendant in such suit, he cannot  be regarded as anything more than a  representative-in-interest of  the original vendee, having no right to defend the  suit except on the pleas that were open to such vendee himself ". This case, therefore, expressly introduces a new element  in the applicability of the doctrine of lis pendens 891 to a suit to enforce the pre-emptive right.  If the right of the pre-emptor of a superior or equal degree was  subsisting and  enforceable  by  coercive  process  or  otherwise,  his purchase would be considered to be in exercise of that  pre- existing right and therefore not hit by the doctrine of  lis pendens.   On the other hand, if he purchased the land  from the  original  vendee after his superior or equal  right  to enforce the right of preemption was barred by Limitation, he would  only  be  in the  position  of  a  representative-in- interest of the vendee, or to put it in other words, if  his right is barred by limitation, it would be treated as a non- existing right.  Much to the same effect was the decision of another  Full  Bench of the Lahore High  Court  in  Mohammad Sadiq  v. Ghasi Ram (1).  There, before the  institution  of the suit for pre-emption, an agreement to sell the  property had  been  executed  by  the vendee  in  favour  of  another prospective pre-emptor with an equal degree of right of pre- emption;  subsequent  to  the institution of  the  suit,  in pursuance  of the agreement, a sale deed had  been  executed and  registered in the latter’s favour, after the expiry  of the  limitation  for a suit to enforce his  own  pre-emptive right.  The Full Bench held that the doctrine of lis pendens applied to the case.  The principle underlying this decision is  the  same as that in Mt.  Sant Kaur v. Te a  Singh  (2), where the barred right was treated as a non-existent  right. The same view was restated by another Full Bench of the East Punjab High Court in Wazir Ali Khan v. Zahir Ahmad Khan (3). At p. 195, the learned Judges observed: " It is settled law that unless a transfer pendente lite can be held to be a transfer in recognition of a subsisting pre- emptive  right,  the  rule of lis pendens  applies  and  the transferee  takes the property subject to the result of  the suit during the pendency where of it took place". The  Allahabad  High Court has applied the doctrine  of  lis pendens  to a suit for pre-emption ignoring  the  limitation implicit in the doctrine that it cannot affect (i) A.I.R. 1946 Lah. 322.   (2) I.L.R. [1946] Lah. 467, (3) A.I.R. [1949 East Punj. [93. 892 a  pre-existing right. (See Kundan Lal v. Amar  Singh  (1)). We  accept the view expressed by the Lahore High  Court  and

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East  Punjab  High  Court  in  preference  to  that  of  the Allahabad High Court. In view of the aforesaid four Full Bench decisions three  of the Lahore High Court and the fourth of the East Punjab High Court  a further consideration of the case  is  unnecessary. The settled law in the Punjab may be summarized thus: The  doctrine  of  lis pendens applies only  to  a  transfer pendente  lite, but it cannot affect a  pre-existing  right. If  the sale is a transfer in recognition of a  pre-existing and  subsisting  right,  it would not  be  affected  by  the doctrine,  as  the said transfer did not  create  now  right pendente  lite  ;  but  if  the  pre-existing  right  became unenforceable  by  reason  of  the  fact  of  limitation  or otherwise,   the   transfer,  though  ostensibly   made   in recognition of such a right, in fact created only a new right pendente lite. Even so, it is contended that the right of the appellants to enforce their right of pre-emption was barred by  limitation at  the time of the transfer in their favour  and  therefore the  transfer would be hit by the doctrine of  lis  pendens. This  argument ignores the admitted facts of the case.   The material facts may be recapitulated: Defendants 3 to 7  sold the  land  in dispute to defendants 1 and 2  on  August  26, 1949, and the sale deed was registered on February 15, 1950. The  appellants instituted their suit to pre-empt  the  said sale on August 26, 1950, and obtained a compromise decree on January 23, 195 1. They deposited the balance of the  amount payable  on April 23, 1951, and took possession of the  land on May 17, 1951.  It would be seen from the aforesaid  facts that  the  appellants’  right  of  pre-emption  was  clearly subsisting  at  the time when the appellants  deposited  the amount  and took possession of the land, for they  not  only filed  the suit but obtained a decree therein  and  complied with  the  terms of the decree within  the  time  prescribed thereunder.  The coercive process was still in operation. if so, it follows that the appellants are not hit by the (i)A.I.R. 1927 All. 664. VI 893 doctrine  of lis pendens and they acquired  an  indefeasible right  to  the  suit  land, at  any  rate,  when  they  took possession of the land pursuant to the terms of the  decree, after  depositing in Court the balance of the amount due  to the vendors. We shall briefly touch upon another argument of the  learned Counsel  for  the appellants, namely,  that  the  compromise decree  obtained  by them, whereunder their  right  of  pre- emption  was recognized, clothed them with the title to  the property so as to deprive the plaintiffs of the equal  right of pre-emption.  The right of pre-emption can be effectively exercised or enforced only when the pre-emptor has been sub- stituted  by the vendee in the original bargain of sale.   A conditional   decree,  such  as  that  with  which  we   are concerned,  whereunder a pre-emptor gets possession only  if he  pays  a specified amount within a  prescribed  time  and which  also provides for the dismissal of the suit  in  case the  condition is not complied with, cannot obviously  bring about  the substitution of the decreeholder in place of  the vendee  before  the  condition is  complied  with.   Such  a substitution  takes  effect  only  when  the   decree-holder complies  with  the condition and takes  possession  of  the land. The decision of the Judicial Committee in Deonandan  Prashad Singh v. Ramdhari Chowdhri (1) throws considerable light  on the question whether in similar circumstances the pre-emptor

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can  be deemed to have been substituted in the place of  the original  vendee.  There the Subordinate Judge made  a  pre- emption   decree  under  which  the  pre-emptors   were   in possession  from 1900 to 1904, when the decree was  reversed by  the  High  Court and  the  original  purchaser  regained possession  and  in 1908, the Privy  Council,  upon  further appeal, declared the pre-emptors’ right to purchase, but  at a  higher price than decreed by the Subordinate  Judge.   In 1909   the  pre-eimptors  paid  the  additional  price   and thereupon  again  obtained possession.  The  question  arose whether  the pre-emptors were not entitled to mesne  profits for the period between 1904 to 1909, i.e., during the period the judg- (i)(1916) L. R. 44 1. A. 80. 894 ment  of the first appellate Court was in force.  The  Privy Council held that during that period the preemptors were not entitled  to mesne profits.  The reason for that  conclusion was stated at page 84 thus: " It therefore follows that where a suit is brought it is on payment of the purchase-money on the specified date that the plaintiff obtains possession of the property, and until that time  the  original  purchaser  retains  possession  and  is entitled to the rents and profits.  This was so held in  the case of Deokinandan v. Sri Ram (1) and there Mahmud J. whose authority is well recognized by all, stated that it was only when  the  terms of the decree were fulfilled  and  enforced that  the  persons having the right  of  pre-emption  become owners  of  the property, that such ownership did  not  vest from the date of sale, notwithstanding success in the  suit, and  that the actual substitution of the owner of  the  pre- empted property dates with possession under the decree ". This  judgment  is, therefore, a, clear  authority  for  the position that the pre-emptor is not substituted in the place of  the  original vendee till conditions laid  down  in  the decree are fulfilled.  We cannot, therefore, agree with  the learned Counsel that the compromise decree itself  perfected his clients’ right in derogation to that of the  plaintiffs. But  as we have held that the appellants complied  with  the conditions  laid  down in the compromise decree,  they  were substituted  in the place of the vendee before  the  present suit  was  disposed of.  In the aforesaid  view,  the  other questions  raised  by  the  appellants  do  not  arise   for consideration.  In the result, the appeal is allowed and the suit is dismissed with cost,-, throughout. Appeal allowed. (1) (1889) I. L. R. 12 All. 234. 895