BHOOP ALLEGED SON OF SHEOversusMATADIN BHARDWAJ SON OF LAKMI CHAND

               BHOOP ALLEGED SON OF SHEO
A
                           v.
          MATADIN BHARDWAJ SON OF LAKMI CHAND

                            DECEMBER 4, 1990

B      [K. JAGANNATHA SHETTY AND A.M. AHMADI, JJ.]

          Code of Civil Procedure-Section 146 and order 20 Rule 14,
    Order 21 Rule 16--Preemption decree-Whether could be transferred
    to entitled purchaser to execute the same.

          Sub-Judge, 1st Class, Mahendergarh, in a suit, granted a pre-
C   emption decree in respect of agricultural land in favour of one Shanti
    Devi and against the appellant and directed Shanti Devi to deposit the
    sale price by November 17, 1968. The respondent Matadin obtained a
    Deed of Assignment in respect of the said decree and thereby acquired
    the rights of Shanti Devi therein. On the strength of the said Assign-
D   ment deed, he put the decree to execution by getting himself substituted
    as a decree-holder on October 15, 1980. He claimed actual possession of
    the land from the appellant. The appellant contested the execution pro-
    ceedings contending that the pre-emption decree was not transferable
    and no right passed to the respondent under the deed of assignment. It
    was also contended that since Shanti Devi had failed to make the
E   deposit, the suit stood dismissed and Shanti Devi had no subsisting right
    in the decree which she could pass under the assignment deed, The
    Sub-Judge, 1st Class, Mahendergarh held that since the amount was not
    deposited on or before November 18, 1968, the suit stood dismissed and
    thus Shanti Devi had no interest which she could transfer. He accord-
    ingly dismissed the execution application. Respondent Mata Din, being
F   aggrieved by the said order filed a revision application in the High
    Court. The High Court found that Shanti Devi look timely steps to
    deposit the sale price but due to administrative difficulties, she could
    deposit the amount only on November 19, 1968. The High Court there-
    fore held that there was no delay on the part of the decree-holder to
    deposit the amount and hence the amount most be taken to have been
G   deposited within the time allowed by the decree and so the decree-
    holder was competent to assign it and the assignee was entitled to
    execute tile same. The revision application was allowed and the execu-
    tion was directed to proceed. The appellant has filed this appeal against
    the said order after obtaining special leave and the main contention
    amongst others advanced on bis behalf relates to the transferability of
H   the decree and the maintainability of the execution proceedings.

                                       410
                        BHOOP v. M. BHARDWAJ                           411

      Dismissing the appeal, this Court,
                                                                              A
      HELD: The right of pre-emption is generally conferred on a CO·
sharer in the property or on a person who claims some right over the
property e.g., a right of way, etc., or on the ground of vicinage i.e.
being an owner of the adjoining property. This right may be founded in
statute or custom or personal law by which the parties are governed.          B
The sole object of conferring this right on a co-sharer or owner of an
adjacent immovable property is to exclude strangers from acquiring
interest in an immovable property as a co-sharer or to keep objection-
able strangers away from the neighbourhood. This ript is purely
personal and cannot be transferred to a third party for the obvious
reason that it would defeat the very purpose ofits conferment. [416G-H)
                                                                              c
      The parties In the instant case, clearly Intended to transfer Shanti
Devi's interest In the pre-emptional land to Matadin. This is, therefore,
not a case of a transfer of a mere decree with the property remaining
vested in title In the pre-emptor. [418A]
                                                                              D
      The document clearly shows that Matadln had to implead himself
in place of the decree-holder as a party to the pending execution
 proceedings and then seek possession of the pre-emptional property.
Matadin was substituted in .I>lace of the decree-holder after notice to the
judgment-debtor. He was therefore, entitled to execute the decree. [418D]
                                                                              E
     Matadin was entitled In law to execute the decree transferred to
him and obtain possession of the land from the judgment-debtor. [418E)

      Mehr Khan v. Gu/am Rasul, AIR 1922 Lahore 300; Negeshwar v.
Taluk Singh, AIR 1930 Oudh 195; WajidAli v. Salian, [1909) ILR 31 All
623; Zita Singh v. Hazari, [1979] 3 SCR 222; Chandrup Singh v. Data F
 Ram, AIR 1983 P & H l; Sarju Prasad v. Jamna Prasad, (unreported)
S.A. from order No. 45 of 1983 decided on November 21, 1983 and
Jugal Kishore Saraj v. Raw Cotton Co. Ltd., [1955] SCR 1369, referred
to.

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1172 G
of 1986.

    From the Judgment and Order dated 22.11.1985 of the Punjab &
Haryana High Court in Civil Revision No. 1217 of 1983.

      Dr. Shankar Ghosh, (NP), Ms. S. Janani, Ms. Meenakshi, and              lJ
     412         SUPREME COURT REPORTS              (1990] Supp. 3 S.C.R.

A Mts, Urmila Kapoor (NP) for the appellant.

         Harbans La1, B. Goel (NP), Ashok K. Mahajan and Prashant
     Bhushan for the respondent.

           The Judgment of the Court was delivered by
B
         AHMADI, J. In suit No. 108 of 1967 the learned Sub-Judge, Ist
   Class, Mahendergarh, granted a pre-emption decree in respect of a
   parcel Of agricultural land in favour of one Shanti Devi and against the
   appellant herein. Under the decree she was required to dep<isit four-
   fifth of the sale price by November 18, 1968. The respondent Matadin
C claimed that he had acquired the rights of Shanti Devi in the decree
   under a deed of assignment dated October 13, 1980. On the strength of
   the said assignment deed he put the decree to execution by getting
   himself substituted as decree-holder on October 15, 1980. He claimed
   actual possession of the land from the appellant. The appellant con-
   tested the execution proceedings on the ground that a pre-emption
lJ decree was not transferable and hence no right passed to the respon-
   dent under the deed of assignment. It was further contended that
   under the decree Shanti Devi was required to deposit four-fifth of the
   consideration money by November 18, 1968 and since she had failed to
   tnake the dep<isit, the suit stood dismissed and Shanti Devi had no
   subsisting right in the decree which she could pass under the deed of
E assignment. On the pleadings the executing court framed two issues,
   the rust bearing_on the legality of the assignment and the second on the
   consecfuence of non-deposit of the amount in Court. The learned Sub-
   otdinate Judge, First Class, Mahendragarh held that since the amount
   was not deposited on or before November 18, 1968, the suit stood
   automatically dismissed and, therefore, Shanti Devi had no interest
p which she could transfer under the impugned deed of assignment.
   Consequently he dismissed the execution application by his order
   dated January 18, 1983.

           Peeling aggrieved by the said order the present respondent filed
     a Revision Application No. 1217 of 1983 in the High Court of Punjab
G    & Haryana. The learned Single Judge who heard the revision applica"
     lion recorded a finding that the \lecree-holder had taken timely steps
     to deposit the amount before November 18, 1968. He noticed that the
     Presiding Officer, i.e., the Subordinate Judge, First Class, Mahendra-
     garh had relinquished charge on transfer on October 30, 1968 and
     since no one had taken charge in his place she had preferred an appli-
li   cation on November 13, 1968 accompanied by a Treasury Challan for
                    BHOOP v. M. BHARDWAJ [AHMADI, J.]                    413

    depositing t!Je amoupt but Iler application was not entertained. There-
    upon she placed the said application before the Senior Subordinate          A
    J11dge, Narnl!ul, on November 16, 1968, b11t unfortunately the same
    w11s· rejected for want of jurisdiction. The decree-holder then moved
    t!Je learned District Judge, Gurgaon, on November 18, 1968. The
    learned District Judge passed an order authorising the Senior Subordi-
    nate Judge, Mahendr'lgarh, to accept the amount. Accordingly the
    <1mount W'IS deposited on November 19, 1968. The learned Single
    Judge in the High O:iurt rightly held that a party cannot be made to
    suffer for no fa11lt of !Jer own. He, therefore, held that t!Jere was no
    !!elay on the part of the !!ecree-hol!!er to deposit the amount and hence
    the amount must be taken to have been deposited within the time
    allowe!! by the decree and so the decree-holder was competent to
    assign it and the 11ssignee was entitled to execute the same. He, there-    c
    fore, allowed the revision application and directed the execution to
    proceed. It is against the said order that the present appeal by sp.ecial
    le<1ve is filed.

          The High O:iurt, however, did not address itself to the crucial       D
    question regarding the transferability of the decree. In the objections
    filed to the eJ<ecution proceedings the Jud81llent-debtor had raised the
    cont.ention that the execution proceedings were not maintainable as
    tbe \lecree-holder was not competent to transfer the decree. Dr,

-   Ghose, counsel for the appellant, contended that since a pre-emption
    decree confers a personal right only, the decree-holder has no right to
    tn1nsfer her interest under the decree before it is effectuated by
    obtaining possession. In other words according to Dr. Ghose a pre-
                                                                                E


    emptor ca1mot transfer her right of pre-emption before the decree is
    effectuated and in any case an assignee of a pre-emption decree cannot
    put the decree to execution and seek possession thereunder. This
    right, contends Dr. Ghose, is reserved to the pre-emptor although she       F
    may convey the property after the decree is effectuated.

          In Ram Sahai v. Gaya, [1884] ILR 7 Allahabad 107, the respon-
    dents who !Jad obtained a decree for pre-emption of June 30, 1883,
    executed a siile deed on November 29, 1883 conveying the property to
    one Ambika Prasad. On that very day the respondents themselves put G
    the decree to execution after disclosing the sale to Ambika Prasad, and
    prayed that the latter be permitted to deposit the purchase money. The
    respondc:mts prayed that they may be put in possession to enable them
    to make over the property to Ambika.Prasad. The Executing•Court
    acceded to both the prayers. On appeal, the Judgment-debtor con-
    tended that the execution of the sale deed before obtaining actual H
    414         SUPREME COU1' T REPORTS             [ !990] Supp. 3 S.C.R.

    possession invalidated the right of the respondents rendering the
A
    decree incapable of enforcement. The Judgment-debtor placed
    reliance on the case of Rajjo v. La/man, !LR 5 Allahabad 180 wherein
    it was laid down that when a pre-emptor, anticipating success, trans-
    fers the property claimed in pre-emption which is not consistent with
    the object of the pre-emption suit, such transfer operates as forfeiture
B   of the pre-emptive right, and consequently the suit must fail. This case
    was distinguished on the ground that the transfer was anticipatory i.e.,
    effected even before the decree was passed and therefore, the pre-
    emptor had infringed his right of pre-emption in respect of the pro-
    perty. In that case Mahmood, J. pointed out that what was transferred
    under the sale deed was the property and not the decree, subject of
    course to the payment of the purchase money within the time stipu-
c   lated under the decree. It was further pointed out that the decree
    holder was entitled to execute the decree and the Executing Court
    could not go behind it to annul it. If, however, Ambika Prasad were to
    seek possession under the decree, "we should have disallowed his
    application for execution" said the learned Judge. The learned Judge
D   then proceeded to state the law at page 111 in the following words:

                "The sole object of the right of pre-emption is the exclu-
                sion of such strangers as are objectionable to the pre-
                emptive co-sharers of the vendor. And if a decree for pre-
                emption-were capable of transfer, so as to enable the trans-
E               feree to obtain possession of the pre-emptional property in
                execution of that decree, it is clear that the object of the
                right of pre-emption would be defeated, for the transferee
                of the decree may be as much a stranger as the vendee
                against whom the decree was obtained, or that the latter
                may be a pre-emptor of a lower grade than the pre-emptor
F               who originally obtained the decree."

                "'A decree once passed cannot, as we have already said, be
                questioned by any of the parties thereto when the decree is
                being executed, and if a decree for pre-emption could be
                                                                               I
                validly transferred, the effect would be to place the trans-
G               feree in possession without the trial of the question
                whether such transferee had the pre-emptive right in pre-      t-
                ference to the vendee against whom the decree was

          .     obtained."

    On this line of reasoning, the learned Judge distinguished Rajjo's case
H   and held that since what was transferred was property and not the
                 BHOOP v. M. BHARDWAJ [AHMADI, J.]                   415

  decree and since possession was sought by the decree-holder and not
                                                                            A
· the vendee, the execution proceedings were competent. This view was
  accepted as laying down the correct law in Mehr Khan v. Gu/am Rasul,
  AIR 1922 Lahore 300 and Nageshwar v. Taluk Singh, AIR 1930 oudh
  195.

      This Court in Hazari v. Neki, [1968] 2 SCR 833 was required to        B
consider if the legal representative of the original plaintiff who had
initiated the proceedings for enforcing his right of pre-emption could
be brought on record. The submission was that since the right of pre-
emption was a personal right it could not be transferred, whether
voluntarily or involuntarily, and the proceedings must come to an end
on the death of the pre-emptor. Dealing with this submission, in the
context of Order 22 Rules 1 and 10 of the Code of Civil Procedure, this
                                                                            c
Court approved the view taken by the Full Bench of the Allahabad
High Court in Wajid Ali v. Salian, [1909] !LR 31 Allahabad 623
wherein it was held that where a right of pre-emption exists by custom
as recorded in the village Wajib-ul-arz, the right have once accrued did
not lapse on the death of the pre-emtor but devolved on the heirs of        D
the deceased. In a sebsequenf round of litigation between the same
parties reported in Zila Singh v. Hazari, [1979] 3 SCR 222 this Court
while reversing the majority view in Hazari v. Zila Singh, AIR 1970 P
& H 215 further clarified that the distinction between a voluntary inter
vivos transfer and an involuntary transfer such as by way of inheritence
is immaterial where the Court is concerned with a statutory right which     E
had fructified into a decree before the ·death of the pre-emtor pending
the second appeal. The Full Bench of the Punjab & Haryana High
Court has in the subsequent case of Chandrup Singh v. Data Ram,
AIR 1983 P & H 1 further clarified this position in paragraph 18 of the
Judgment. It is, therefore, clear that where a transfer takes place after
the right of pre-emption has ripened into a decree, the legal rep-          F
resentative of the deceased pre-emptor is entitled to be brought on
record.

       We may clarify that we are dealing with a statutory right of
 pre-emption and not one under the Mohamaddan Law. The right of
 pre-emption was exercised by Shanti Devi in respect of a parcel of         G
 agricultural land. The pre-emption decree was passed by the trial court
 on C>ctober 14, 1968 whereunder Shanti Devi was required to deposit
 four-fifth of the sale price by November 18, 1968. The respondent
 Matadin obtained a Deed of Assignment in respect of the said decree
 for Rs.10,000. A copy of this document is produced on record. After
 narrating the fact of Shanti Devi having secured a pre-emption decree      H
    416         SUPREME COURT REPORTS                (1990] Supp. 3 S.CR.

A   and taking note of her obligation to deposit four-fifth of ihe s&le price
    on or before November 18, 1968, the document r!'cites as under:

                "Therefore, I give it in writing today transfering the decree
                through assignment in favour of the aforesaid S!iri Matadin
                Bhardwaj in lieu of Rs.10,000 received in advance already
B               while agreement to transfer. decree of possession of agri-
                C\lltural land through assignment was executed, wpile I am
                in sound sense and mind, seeing it a profitable bargain,
                because this decree was attained by executant on the basis
                of right of pre-emption against the aforesaid Bhup in him
                of Rs.5,000 that the executant decree holder or basis of
                executant decree holder do not (now) have, nor they will
c               have concern of any kind with the aforesaid decree or its
                subject matter Le. agricultural land or with its possession"

    It is further stated that Matadin will be entitled to possession of the
    111nd from the Judgment-debtor by proceeding with the execution after
D   having his name substituted in her place. It is crystal clear from the
    recitals in the document that Shanti Devi had assigned her right to
    seek possession and the vendee was informed of the pendency of the
    execution proceedings. Dr, Ghose contends that under the document
    as it st1mds she had not sold the land to Matadin but had merely
    assigned the decree to him with a right to secure possession of the
E   agricultural land from the Judgment-debtor. Relying on the unre-
    ported decision of the Allahabad High Court in Sarju Prasad v. Jamna
    Prasad, S.A. from Order No. 45 of 1883 decided on November 12,
    1883 he stressed that pre-emption decree being (IUrely personal it could
    not be transferred so as to entitle the vendee to execute the same. The
    question then is whether Matadin can maintain the said proceedings
f   and obtain possession of the land in question?

          It is common knowledge that the right of pre-emption is gener-
    ally conferred on a co-sharer in the property or on a person who claims
    some right over the property e.g., a right of way, etc., or on the ground
    of vicinage i.e. being an owner of the adjoining property. This right
0   may be founded in statute or custom or personal law by which the
    parties are governed. The sole object of conferring this right on a
    co-sharer or owner of an adjacent immovable property is to exclude
    stn1ngers from acquiring interest in an immovable property as a
    co-sharer or to keep objectionable strangers away from the neighbour-
    hood. This right is purely personal and cannot be transferred to a third
H   party for the obvious reason that it wo1dd defeat the very purpose of its
                 BHOOP v. M. BHARDWAJ !AHMADI, J.]                     417

conferment. That is why the Allahabad High Court in Sarju Prasad
                                                                              A
(supra) he.Id that a decree for pre-emption being purely personal iµ
character could not be transferred so as to entitle the purchaser to
execute the same. Dr. Ghose, therefore, submitted that Matadin was
not entitled to put the decree to execution and obtain possession of the
pre-emptional property from the appellant. This submission, in our
view, overlooks the scheme of Section 146, Order 20 rule 14 and order         B
21rule16 of the Code of Civil Procedure.

       Section 146, which was introduced for the first time in the 1908
Code, lays down that where any proceeding is taken or application is
made by or against any person, then the proceeding may be taken or
the application may be made by or against any person claiming under
him, unless otherwise provided by the Code or any other extant law.           c
Then comes Order 20 rule 14 which specifically deals with pre-emption
decrees. It provides that where the Court decrees a claim to pre-
emption in respect of a particular sale of property, the Court shall
specify a day on or before which the purchase money shall be paid (if
not paid earlier) and direct that on payment into Court of such pur-          D
chase money on or before the specified day, 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. The
words "whose title thereto shall be deemed to have accrued from the
date of payment" make it clear that immediately on payment of the
purchase money on or before the specified date, the title to the pro-         E
perty would vest in the pre-emptor without any further documenta-
tion. There can, therefore, be no doubt that as soon as Shanti Devi
deposited the purchase money i.e., the balance four-fifth amount in
Court on November 19, 1968, the title to the pre-emptional land
accrued to her by the fiction of law and she became the owner of the
said land and the Judgment-debtor was under an obligation to deliver          F
possession thereof to her by the thrust of the words "the defendant
shall deliver possession of the property to the plaintiff" in clause (b) of
sub-rule (1) of rule 14 of Order 20 CPC. When Shanti Devi executed
the document, described as a deed of assignment, she clearly transfer-
red her interest in the said pre-emptional land to Matadin. This is clear
from the language of the document wherein after the extracted portion         G
it is recited: "Matadin Bhardwaj will have the capacity of decree-
holder-assignee the same rights which have accrued to the executant-
decree-holder". These words leave no doubt that the parties to the
document were aware that certain rights in the property have accrued
to Shanti Devi and she was transferring those rights to Matadin. In our
view, therefore, apart from the nomenclature of the document, the             H
    418         SUPREME COURT REPORTS                [1990] Supp. 3 S.C.R.

    parties clearly intended to transfer Shanti Devi's interest in the pre-
A   emptional land to Matadin. This is, therefore, not a case of a transfer
    of a mere decree with the property remaining vested in title in the
    pre-emptor. The case stands squarely covered by the dictum of
    Mahmood, J. in Ram Sahai's case (supra).          ·

B         Order 21 rule 16 next provides that where a decree or the interest
    of a decree-holder in the decree is transferred by assignment in writing
    or by operation of law, the transferee may apply for execution of the
    decree to the Court which passed it, and the decree may be executed as
    if the application were made by the decree-holder. The newly added
    Explanation to the said rule makes ii clear that the rule shall not affect
    the provisions in Section 146 of the Code nor shall it affect a transferee
c   of rights in property, which is the subject matter of the suit, from
    applying for execution of the decree without there being a separate
    assignment of the decree. In the present case the document clearly
    shows that Matadin had to implead himself in place of the decree-
    holder as a party to the pending execution proceedings and then seek
D   possession of the pre-emption al property. Matadin was substituted in
    place of the decree-holder after notice to the Judgment-debtor. He
    was, therefore, entitled to execute the decree.

          On a conjoint reading of the aforesaid provisions of the Code, it
    seems clear to us that Madadin was entitled in law to execute the
E   decree transferred to him and obtain possession of the land from the
    Judgment-debtor. In Jugal Kishore Sarai v. Ram Cotton Co. Ltd.,
    [ 1955] SCR 1369 (AIR 1955 SC 376) this Court held that a person who
    claims benefit under a decree by reason of its transfer can apply under
    Section 146 and failing that under Order 21 Rule 16 Cl'C. In Zita
    Singh, (supra) this Court while disagreeing with the 111ajotity view of
F   Punjab & Haryana High Court in Hazari's case (supra) held that a
    transferee of the pre-emptor's right in the land which ·has vested in him
    by virtue of Order 20 rule .14 on compliance of the requirement of
    payment of the purchase money by the specified date, can maintain an
    application for execution under Section 146, or Order 21rule16, CPC.
    In other words it was said that if the transferee of the decree cannot
G   avail of the latter provision he can certainly resort to the former.

         For the reasons set out above we see no merit in this appeal and        •
    dismiss the same with costs.

    Y. Lal                                                 Appeal dismissed.