Bishan Singh & Ors Vs. Khazan
Singh & ANR  INSC 58 (20 May 1958)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
CITATION: 1958 AIR 838 1959 SCR 878
Pre-emption, nature of the right-Pre-emptor filing
suit and obtaining decree-Second pre-emptor of equal degree filing suit for
Pre-emption First pre-emptor deositing purchase moneand obtaining Possession-If
suit of second Produced emptor can Lis -Scope--Punjab Pre-emptor Act (Pun. 1 Of
1913),ss. 17, 28.
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 amount bv acertain
date. 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.
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.  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.
The right of pre-emption is effectively
exercised or enforced only when the pre-emptor has been substituted for the
vendee. A conditional decree where under 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.
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
Kapur Chand Puri and Tarachand Brijmohan Lal,
for 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
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
Before the said defendants (8 to 11)
deposited the amount in Court under the terms of the compromise decree, the respondents
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 Additional
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.
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)
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
" 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
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 jointly, by any two or more of them
jointly, and, if not exercised by any two or more of them jointly, by them
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
(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
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
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-
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 sub stantative 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 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
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.  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
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
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.  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 East Punjab High Court in preference to that of the Allahabad
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
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
there under. 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, where under 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 substituted by the
vendee in the original bargain of sale. A conditional decree, such as that with
which we are concerned, where under 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 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 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.
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
" 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.
(1) (1889) I. L. R. 12 All. 234.