Hazari
& Ors Vs. Neki & Ors [1968] INSC 14 (25 January 1968)
25/01/1968
RAMASWAMI, V.
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Act, 1913 was repealed and in its place was substituted a new provision which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 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
supported 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 preemption 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.
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
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 same group of agricultural tribes as the vendor shall have a right
of preemption 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 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 as tran
(Ter into the land. The correct legal position is that the statutory law of preemption
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 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 voluntary 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 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-unnissa
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 preemption 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 preemption 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 purchasemoney 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 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 preemption under clause (a) of clause (b) seeks
to exercise it: thirdly, in the owners of the 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 November 8, 1951, and an appeal and second appeal
there from were also dismissed. The question was whether the respondent was
entitled to a decree in view of s. 31 of the Punjab Preemption 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 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.
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