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PETITIONER: HAZARI & ORS.

       Vs.

RESPONDENT: NEKI & ORS.

DATE OF JUDGMENT: 25/01/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1205            1968 SCR  (2) 833  CITATOR INFO :  RF         1979 SC1066  (1,8)  R          1988 SC 726  (2,3,4,6,7)  RF         1991 SC 373  (5)

ACT: Punjab  Pre-emption  Act  (Punj.  1 of  1913),  ss.  14  and 15(1)(a)Statutory right of Pre-emption-Whether heritable. Punjab Pre-emption Act as amended by Punjab Act 10 of  1960, s.  31-Whether bar to decree-Code of Civil Procedure (Act  5 of  1905),  0.  22, rr. 1 and  11-Legal  representatives  of statutory preemptor-If right to sue survives.

HEADNOTE: By s. 4 of the Amending Act (Punj.  Act 10 of 1960) s. 15 of the  Punjab  Pre-emption Act, 1913 was repealed and  in  its place  was  substituted  a new provision  which  omitted  to confer a right of pre-emption in the case of persons ’owning land  in the estate’ as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 new s. 31 in the parent Act.  In respect of sales  effected after the promulgation of the Amending  Act, one  N filed suits and obtained decrees for  pre-emption  in all  suits against the appellants under s. 15(1)(a)  of  the Punjab Pre-emption Act.  These decrees were confirmed by the first  appellate  court.   While  the  second  appeals  were pending   in  the  High  Court,  N  died,  and   his   legal representatives  were  brought on record.   The  High  Court dismissed  the  appeals.  In appeals to this Court,  it  was contended that (i) the statutory right of pre-emption  under the  Punjab Preemption 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; and (ii) s. 31 of the Act as amended retrospectively by Punjab Act 10 of  1960,  stood  as a bar to the granting of  a  decree  in favour of substituted legal representatives. HELD : The appeals must be dismissed. (i)  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 persons  entitled  to pre-empt.  The  right  of  pre-emption under  s. 15(1) (a) of the Punjab Act of 1913 is a  personal

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right in the sense that the claim of the pre-emptor  depends upon  the nature of his relationship with the  vendor.   But under  s. 14 of the Act, the pre-emptor must be a member  of an  agricultural  tribe in the same  group  of  agricultural tribes,  as the vendor and the land of which  preemption  is sought  must  be in respect of agricultural land sold  to  a member  of  the  agricultural  tribe.   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.  This view is  sup- ported  by the language of s. 306 of the  Indian  Succession Act  and therefore, the claim of N for pre-emption  did  not abate  upon  his death and his  legal  representatives  were properly brought on ’record of the second appeals under  the provisions of 0. 22, r. 1 read with 0. 22, r. 10 of the Code of Civil Procedure. (836 G; 837 B-D] Faqir Ali Shah v. Rani Kishan & Ors. 133 P.R. 1907 and Wajid Ali & Ors. v. Shaban & Ors. 1.L.R. 31 All 623, approved. Muhammad  Husain v. Niamat-un-nissa & Ors.  I.L.R.  20  All, 88, referred to. 834     (ii)  The  Amending Act came into. force long  before  N instituted  the present suits.  Even the sales of land  were effected after the promulgation of the Amending Act.  In Ram Sarup’s  case,  the right of the plaintiff to  pre-empt  was extinguished retrospectively; in the present case N’s  right to  sue has not been extinguished.  N had the right of  pre- emption under the Amended Act at the time he instituted  the suit  and  N’s right was not extinguished on his  death  but passed to his legal representatives. [839 G] Ram   Sarup  v.  Munshi  &  Ors.  [196.3]  3   S.C.R.   858, distinguished.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1148, 1656 and 2341 of 1966.     Appeals  by special leave from the judgment  and  decree dated  July  27, 1965 of the Punjab High  Court  in  Letters Patent Appeals Nos. 13 to 15 of 1965.     Prem Chand Jain and Janardan Sharma, for the  appellants (in all the appeals).     D.D. Sharma, for respondents Nos. 1 (iv to xiii) in  all the appeals). The Judgment of the Court was delivered by     Ramaswami,  J.   These appeals are  brought  by  special leave  on behalf of the defendants against the  judgment  of the  Punjab  High  Court dated 27th July,  1965  in  Letters Patent  Appeals Nos. 13 and 14 of 1965.     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 father’s  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

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appellants.   After  hearing the contentions of  the   rival parties,  the Subordinate Judge granted decrees in  ail  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. 3,500/- in court on or  before 15-1-1963.   In suit 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 15-1-1963.  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 835 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  1-3-1963.  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 1963 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 0.22, r. I 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. The claim of Neki for pre-emption was based on ss. 14 and 15 (1) (a) of the Punjab Pre-emption Act 1913 (Punjab Act 1  of 1913).  Section 14 states :-               "No person other than a person who was at  the               date of sale a member of an agricultural tribe               in  the the same group of agricultural  tribes               as  the  vendor  shall have a  right  of  pre-               emption  in respect of agricultural land  sold               by a member of an agricultural tribe". "Section 15 (I) (a) reads as follows               "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:               FIRST, in the son or daughter or son’s son  or               daughter’s son of the vendor;               SECONDLY,  in the brother or brother’s son  of               the vendor;               THIRDLY,  in the father’s brother or  father’s               brother’s son of the vendor;               FOURTHLY,  in  the  tenant  who  holds   under               tenancy  of  the vendor the land  or  property               sold or a part thereof ." The Punjab Pre-emption Act, 1913 was amended by Punjab Act 10 of 1960 and s. 6 of the amending Act inserted a new s. 31 in the Principal which states as follows:- 836               "No  court shall pass a decree in a  suit  for               pre-emption whether instituted before or after               the  commencement  of the  Punjab  Pre-emption               (Amendment)  Act, 1960, which is  inconsistent

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             with the provisions of the said Act". It  is  necessary  also  to  refer  at  this  stage  to  the provisions  of 0.22, r.1 and 0.22, r. 1 1 which are  to  the following effect :-               "0.22,  r.  1 : The death of  a  plaintiff  or               defendant shall not cause the suit to abate if               the right to sue survives".               "0.22,  r.  I I : In the application  of  this               Order  to appeals, so far as may be, the  word               ’plaintiff’  shall  be  held  to  include   an               appellant  the word ’defendant’ a  respondent,               and the word ’suit an appeal". 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  ’,he 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 stran (Ter 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 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  to  pre-empt.   In  the present  case, Neki obtained decrees for pre-emption in  all the  three  suits against the appellants and  these  decrees were  confirmed  by the first appellate  Court.   While  the second appeals were pending in the High Court, Neki died and the  question is whether under the provisions of 0.22, r.  I and  0.22, r. I I of the Code of Civil Procedure, the  right to  sue survived after the death of Neki.  In this  context, it is necessary to consider the provisions of s. 306 of  the Indian 837 Succession  Act  XXIX  of 1925.  This  section  expresses  a qualification  of  the maxim actio  personalis  mortiur  cum persona  to  the  extent that the  section  indicates  that, amongst  causes of action which survive, are  included  some actions  of  a  personal nature, that  is  to  say  personal actions  other than those expressly excluded by the  section itself.   It is true that the right of pre-emption under  s. 15(1)(a)  of the Punjab Act of 1913 is a personal  right  in the sense that the claim of the pre-emptor depends upon  the nature of his relationship with the vendor.  But under s. 14 of  the  Act,  the  pre-emptor  must  be  a  member  of   an agricultural tribe in the same group of agricultural  tribes as  the vendor and the land of which pre-emption  is  sought must be in respect of agricultural land sold to a member  of the  agricultural  tribe.   We are of  opinion  that  if  an

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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 that the legal representatives of  Neki  were properly brought on record of the  second appeals under  the provisions  of 0.22, r. 1 read with 0.22, r. 10 of the  Code of Civil Procedure. The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah v.  Ram  Kishan  &  Ors.(1). The  question  that  arose  for determination in that case was whether the right to sue  for pre-emption  under s.12 of the Punjab Laws Act upon a  cause of action which accrued to a person in his life-time  passed at  his  death to his successor who inherited  the  property through  which the right had accrued. The view of  the  Full Bench  as regards the transfer by inheritance was  that  the general principle applied and that the right of  pre-emption passed  with the land and the learned  Judges  distinguished the transfer by inheritance from the transfer of property by some voluntary act of the par-ties. At p. 641 of the Report, Clark, C.J. observed :       "While, therefore, there is good  reason               why volun-       tary  transfers should not pass a  right               of 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               (1)   133 P. R. 1907.               838               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". A  similar  view  was expressed by the  Full  Bench  of  the Allahabad  High Court in Wajid Ali & Ors. v. Shaban  &  Ors. (1).   It was held that where a right of pre-emption  exists by custom as recorded in the village wajib-ul-arz, the right having once accrued did not of necessity lapse by the  death

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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 necessary to emphasize that we are dealing  in  this; case  with the statutory right of pre-emption  under  Punjab Act 1 of 1913 and its subsequent amendment and not with  the right of preemption 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  life-time the right to  sue  does  not survive  to  his heirs.-(See Muhammad Husain  v.  Niamet-un- nissa and Ors.) (2).  It is not necessary for us to  express any opinion on this point in the present case. On  behalf  of the respondent it was also pointed  out  that after  the passing of the decree by the, trial  court,  Neki complied  with  the terms of the decree  and  made  payments within the time given.  It was said that under the terms  of s. 14 and S. 1 5 (1 ) (a) the title to the land in the  pre- emption  suits must be deemed to have accrued to  Neki  from the  date  of such payment.  It was argued that  before  his death,  Neki  became the owner of the lands which  were  the subject matter of pre-emption and the legal  representatives of  Neki were substituted in his place as  representing  the estate  of  Neki.  In support of  this  proposition  counsel relied upon the language of 0.20 r. 14(1) which states :               "Where  the  court  decrees a  claim  to  pre-               emption in               respect  of a particular sale of property  and               the pur-               (2) 1. L. R. 20 All. 88.               839               chase-money has not been paid into Court,  the               decree shall-               (a)   specify  a  day on or before  which  the               purchasemoney shall be so paid, and               (b)   direct  that  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 be 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 & Ors. v. Shiv Lal(1)  where it was held that the title to the preempted 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 regards 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. It  was finally  urged  on  behalf of the appellants  that,  in  any -vent,  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

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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 pre-emption  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 & Ors.(1)  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: (1)  66 P. L. R. (1964), 251. (2) [1963] S.C.R. 858. 840               "Subject to the provisions of s. 14 the  right               of preemption in respect of agricultural  land               and village immoveable 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) of clause (b)  seeks               to exercise it:-               thirdly,     in    the    owners     of     he               estate;.........." By  s. 4 of the amending Act (Act 10 of 1960) s. 1 5 of  the parent  Act was repeated and in its place was substituted  a new provision which omitted to confer a right of pre-emption 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 provision 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 Novber  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. 3  1,  the substantive law enacted by the legislature in the amended s. 15 of the Pre-emption 841

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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 Ram Sarup v. Munshi & Ors. (1) has no application to the present case.  In Ram Sarup’s case(1) the right of the plaintiff  to pre-empt  was extinguished retrospectively; in  the  present case Neki’s 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  Neki’s  right   was   not extinguished   on  his  death  but  passed  to   his   legal representatives. For the reasons expressed above, we hold that these  appeals have no merit and must be dismissed with costs.  There  will be one set of hearing fee. Y.P. (1) [1963] 3 S.C.R. 858. Appeals dismissed. 842