Singh & Ors Vs. Bhagwan Singh & Ors  INSC 131 (24 January 1996)
K.Ramaswamy, K.G.B. Pattanaik (J) K. Ramaswamy, J.
JT 1996 (1) 618 1996 SCALE (1)594
CIVIL APPEAL NO. 2356 OF 1996 (Arising out of SLP (C) No.14372 of 1986)
of legal representatives of the first respondent is allowed.
Singh, the respondent had sold 48 : canals of land from undivided joint family
properties, but in specie to Prithvi, Rattan, Krishan sons of Banwari and Karan
Singh son of Sis Ram on June
15, 1978. Admittedly,
they were strangers to Bhagwan Singh and were resident of village Malkos. The
lands are situated in village Kayala.
the sale deed was questioned by the wife and children of the respondent, the
litigation proved unsuccessful.
Singh and Krishan have subsequently sold 34 canals 13 marlas purchased from Bhagwan
Singh to the appellant.
Singh also has sold 13 kanals 7 marlas of the said land on May 18, 1982. Bhagwan Singh, thereafter, filed
the suit for pre-emption under Punjab Pre-emption Act, 1913.
from other pleas, the principle plea was that being co-owner, he is entitled to
pre-emption of the land purchased by the appellant. Though, the trial Court
dismissed the suit, on appeal, the suit was decreed and the High Court in
Second Appeal No.2671/86 by judgment and order dated October 29, 1986 upheld
it. Hence this appeal by special leave.
the learned counsel for the appellant, contended that Bhagwan Singh, having
himself sold the property in spieces to strangers from whom the appellant had
purchased, has no right to exercise the right of pre- emption under Section 15
of the Act. Alternatively, it is contended that Haryana State legislature has
amended Section 15 of the Act by Amendment Act 10 of 1995 which has come into
effect from May 7, 1995 substituting Section 15 of the principal Act whereunder
the right of pre-emption is vested only in a tenant who held the land under
tenancy of the vendor or part of the vendor's land sold.
A.K. Sen. the learned senior counsel for the respondents, contended that Bhagwan
Singh, being a co-owner with his co-parcenars or joint owners, is entitled
under Section 15 to exercise the right of pre-emption statutorily given to a
co-owner. A stranger cannot be inducted against the wishes of the co-owners
into the co-parcenary or joint family property. Bhagwan Singh, having undivided
interest in the co-parcenary, had a right to lay the suit for pre- emption
under Section 15. The subsequent amendment is of no avail since the suit had
already been decreed and this Court can confirm the decree validly passed
before the Amendment Act had come into force. Therefore, the appellate Court
and the High Court were right in granting decree for pre-emption.
given our anxious consideration to the respective contentions, we are of the
view that the contentions of Shri Bagga merit acceptance. It is seen that Bhagwan
Singh himself had sold the land to the strangers to the family. The lands sold
were in specie from the co- parcenary property. Having inducted the strangers
into the property, he cannot object to his vendees selling the property to the
third parties and claim right of pre- emption from them. In a case of
pre-emption as in any other the plaintiff has to establish a number of facts to
succeed in his claim. It is hardly necessary to point out that cases of
pre-emption are no exception to the rule of estoppel to be found in Section
115, Evidence Act. The plea of estoppel may be grounded on an indefinite
variety of facts. But the precise question for consideration is whether in a
case where the purchaser buys property relying on an implied assurance of the
pre-emptor that he will not pre- empt the purchaser can invoke the doctrine of estoppel
against the pre-emptor. Having sold the lands to the strangers, he cannot plead
invalidity of the title of his vendees selling the same lands to another
stranger on the ground that the title is invalid, due to pre-emption right,
under the Act.
appreciate that other co-owners might have a right since they may seem to
object to the strangers coming into the co-parcenary estate jointly held by all
the co- parcenaries or co-owners. Bhagwan Singh, therefore, could not validly
lay the suit for pre-emption.
settled law that the 'right' to clain pre-emption must be available at the date
of sale, the date of suit and the date on which the decree is passed. In Amarjeet
Singh [AIR 1974 2068], this-Court had held that when appeal against a decree is
pending, the Court of appeal has seisin of the whole case and the whole matter
becomes sub judice again though for certain purposes, i.e., execution, the
decree is regarded as final. The decree of the trial Court gets merged with the
decree of the appellate Court.
the Court of appeal shall have all the powers and shall perform as nearly as
may be, the same duties as are conferred and imposed on the Court of original
the appeal, therefore, is pending in this Court, it is a continuation of the origlnal
proceedings and the entire issue is at large. It is well settled law that the
Court can take judicia1 notice of the change in law and mould the relief on the
basis of the rights altered under the amended law. Though the appellate court
reversed the decree of the trial Court and granted to Bhagwan Singh the right
of pre- emption, his entitlement to relief is at large when the matter is
pending consideration before this Court.
the right to pre-emption should be available at all the stages including the
final stage to affirm the decree. This Court would take judicial notice of the
law prevailing as on the date of the order or judgment and apply relevant
provisions of law prevailing on that day and mould the relief on the basis of
that law. In view of the facts that Haryana Amendment Act, 10 of 1995 came into
force w.e.f. July 7, 1995, the only person entitled under the amended law, to
avail the right of pre-emption, is the tenant whose vendor's had sold the whole
or a part thereof to the third parties. It would, therefore, be clear that as
on date, Bhagwan Singh has no right to claim pre-emption under the Act, as
amended under the Amendment Act, 1995.
appeals are accordingly allowed. The judgment and order of the High Court and
the decree and judgment of the appellate Court are set aside and that of the
trial Court, i.e., Sub-Judge, Second Class, Bhiwani made on October 31, 1985 in suit No.201/83 is restored. In
conclusion, the suit stands dismissed but, in the circumstances, parties are
directed to bear their own costs.
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