KANTA RANI © KANTI DEVI & ANR.versusRAMA RANI

            KANTA RANI ©KANT! DEVI & ANR.
                                                                            A
                                    v.
                             RAMA RANI

                        FEBRUARY 8,         1988

        [E.S. VENKATARAMIAH AND N.O.. OJHA, JJ.]                            B

      Civil Procedure Code, 1908: Order 22 Rule 3-Pre-emption
suit-Whether legal representatives of a tenant entitled to be brought on
record.

      Punjab Pre-emption Act, 1913: Section 15--Whether right to pre C
emption confe"ed on tenant by customary law heritable or not-
Whether any distinction between right of pre-emption arising under
Statute law and customary law-When right of tenancy heritable every
incidental right thereto heritable.

      The property in dispute was sold by its original owner to the D
respondent. Claiming that there was a local custom under which the
tenant in occupation of a building had a right of pr.,....,mption, the
tenant of a portion of the property filed a suit for pr.,....,mption and
valued the portion at Rs. 10,000. The suit was opposed by the respon-
dent contending that there was no such customary law and that in case
the decree was passed, the plaintiff should be asked to pay Rs.20,000, as E
consideration.

      During the pendency of the suit, the plaintiff-tenant died and the
appelhnts, his legal representatives filed an application under Order
22, Rule 3 of Civil Procedure Code, for being brought on record in
place of the original plaintiff and for permission to prosecute the suit F
further. The respondent, opposed the application contending that the
right of pr.,....,mption, even if it existed, was only a personal right of the
tenant and was not heritable, and consequent on his death the right to
sue did not survive, and therefore the snit was liable to be dismissed.

      Aggrieved by the aforesaid order, the respondent filed a revision G
petition before the High Conrt, which allowed the same following a Full
Bench decision of that Court in Chandrup Singh and Anr. v. Data Ram
and Anr., [1985] Punjab Law Reporter 771, that a statutory right of
pre-emption resting only on blood relationship created bys. 15(1) of the
Punjab Pre-emption Act, 1913 was not a heritable one and did not
devolve on the heirs on the death of the pre-i!mptor before the grant of H
                                   895
    896                    SUPREME COURT REPORTS              [1988) 2 S.C.R.

A   the decree in the suit, and declared that the suit instituted by the tenant
    had abated on his death.

          Allowing the appeal,

        HELD: While a right of pre-emption does not give right to an
B interest in immovable property, the right of tenancy itself was heritable
  and, therefore, every right attached to the said right of tenancy or
  incidental to it should ordinarily be heritable. There can be no distinc-
  tion between the right of pre-emption arising nuder the statutory law
  andthecustomarylaw. [900F,H]

C          In the instant case, the plaintiff had acquired the said right of
    pre-emption nuder customary law by virtue of right of tenancy which
    he had In the portion of the property in his possession and had instituted
    a suit for enforcing that right. The fact that the pre-emptor had died at
    the trial stage cannot make any difference. [900G]

D         The right to sue therefore survived on the death of the plaintiff-
    tenant in favour of the appeUants, who were his legal representatives,
    and they were entitled to be brought on record In substitution of the
    original plaintiff-tenant nuder Order 22, Rnle 3 of the Civil Procedure
    Code. [902B-C]

E         The trial court was directed to bring the appellants on record as       y
    legal representatives of the deceased-plaintiff and to dispose of the suit
    on merits. [902C)

         Chandrup Singh and Another v. Data Ram and Another, 11982]
    Punjab Law Reporter 771, over-ruled.
F
          Hazari & Ors. v. Neki & Ors., [1968) 2 S.C.R. 833, followed.

         Wajid Ali & Anr. v. Shaban & Ors., I.L.R. 31 Allahabad 623,
    approved.

G        Muhammad Husain v. Niamet-un-nissa and Ors.. I.L.R. 20
    Allahabad 88., distinguished.

          Faqir Ali Shah v. Ram Kishan & Ors., 133 P.R. 1907, referred to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 453
H   of 1988.
                 KANTA RAN! v. RAMA RAN! [VENKATARAMIAH, J.]                  897

            From the Judgment and Order dated 5.3.1984 of the Punjab and              A
        Haryana High Court in Civil Revision No. 3411of1983.

""' I        E.C. Agarwala for the Appellants.

             G .K. Bansal for the Respondent.




,
                                                                                      B
              The Judgment of the Court was delivered by

              VENKA TARAMIAH, J. The two short questions involved in
...     this case are (i) whether the right of pre-emption conferred on a ten-
        ant by a customary law is heritable or not and (ii) whether on the death
        of such a tenant, who had filed a suit for pre-emption his legal re-
        presentatives can continue the suit.                                          C

               The property in dispute which is a double storied building
        situated in the town of Jagadhri, District Ambala, Haryana originally
        belonged to one Orn Prakash. Kishan Chand was in possession of a
        part of the ~aid property as a tenant. Orn Prakash sold the entire            D
        property including the portion occupied by Kishan Chand to the
        respondent for a sum of Rs.23,000 under a registered sale deed dated
        11. 7.1980. It is alleged that in the town of Jagadhri there was in force a
        customary law under which a tenant in occupation or a building had a
        right of pre-emption. Aggrieved by the sale of the property in his
        occupation as a tenant, Kishan Chand filed a suit for pre-emption in          E
        the Court of the Sub--Judge, II Class, Jagadhri in Civil Suit No. 131 of
        1980 on 26.8.1980 stating that the value of the portion of the property
        occupied by him was Rs.10,000. The respondent denied that there was
        such a customary law conferring a right of pre-emption on a tenant in
        force in the town of J agadhri and that in the event of a decree being
        passed in the suit the plaintiff should be asked to pay a sum of              F
        Rs.20,000 by way of consideration. During the pendency of the suit,
        Kishan Chand died on 8.8.1983. An application was filed under Order
        22, Rule 3, Civil Procedure Code by the appellants, who were the legal
        representatives of Kishan Chand to bring them on record in the place
        of the original plaintiff, Kishan Chand and to permit them to prosecute
        the suit further. The respondent opposed the said application contend-        G
"' .\
j       ing that the right of pre-emption, even if it existed, was only a
         personal right of Kishan Chand and was not heritable and, therefore,
        the appellants were not entitled to be brought on record as the legal
         representatives of Kishan Chand. It was further contended by the
         respondent that the suit was liable to be dismissed on the death of
         Kishan Chand as the right to sue did not survive. The trial court            H
                                            •
    898                   SUPREME COURT REPORTS           [1988) 2 S.C.R.

A  allowed the application made under Order 22, Rule 3, Civil Procedure
   Code holding that the right of pre-emption was heritable and the right
   to sue survived on the death of the plaintiff in favour of his legal
   representatives. Aggrieved by the order passed by the trial court, the
   respondent filed a revision petition under section 115, Civil Procedure
   Code before the High Court of Punjab & Haryana in Civil Revision
·B No. 3411 of 1983. Before the High Court, the respondent relied on a
   Full Bench decision of the High Court of Pun jab & Haryana in
   Chandrup Singh and Another v. Data Ram and Another, I1982) Punjab
   Law Reporter 771 in which it had been held that a statutory right of
   pre-emption resting only on blood relationship created by section
    15(1) of the Punjab Pre-emption Act, 1913 (1 of 1913) (hereinafter
                                                                                  1
 C referred to as 'the Act') (as it was in force in Haryana) was not a
   heritable right and did not devolve on the heirs on the death of the
   plaintiff-pre-emptor before the grant of the decree in the suit.
   Though the learned Judge, who heard the revision petition, was of the
   view that the above Full Bench decision ran counter to the decision of
   the Supreme Court in Hazari & Ors. v. Neki & Ors., [1968) 2 S.C.R.
D 833 he allowed the petition following the Full Bench decision on the
   ground that the said decision was bindig on him and declared that the
   suit instituted by Kishan Chand had abated on his death.

        We have gone through the decision of this Court in Hazari's case
  (supra) and also the Full Bench decision of the High Court of Punjab
E & Haryana in Chandrup's case (supra). The 'facts in Hazari's case               y
  (supra) were these. The plaintiff, who was the father's brother of one
  Dhara Singh instituted three suits for pre-emption of the lands sold by
  Dhara Singh under three sale deeds qn the ground that he had a
  superior right of pre-emption on the basis of his relationship with the
  vendor as against the purchasers under section 15(1)(a) of the Act.
F The suits were decreed ty the trial court. The purchasers took the
  matter in appeal before the lst Appellate Court and those appeals
  were dismissed, but in one of the appeals there was a slight modifica-
  tion in the amount which the plaintiff had to pay to the purchasers.
  The purchasers filed three second appeals before the High Court
  against the judgments and the decrees of the lst Appellate Court and
G the plaintiff also preferred a second appeal before the High Court in           I
  one of the cases against the increase made in the price of the land by
  the 1st Appellate Court. While the second appeals were pending in the
  High Court, the plaintiff died. After his death application were moved
  under Order 22, Rule 11 of the Civil Procedure Code to bring the legal
                                                                                  +
  representatives of the deceased plaintiff on record. All the four second
H appeals were heard and dismissed by the High Court. The purchasers


                                                                             !'
             KANTA RAN! v. RAMA RANI [VENKATARAMIAH, J.]                899

'   having failed in the Letters Patent Appeals filed before the Punjab & A
    Haryana High Court against the decrees passed in the second appeals,
    filed three appeals before this Court by special leave. It was contenqed
    before this Court by the purchasers that on the death of the plaintiff,
    the right to sue came to an end and his legal representatives were not
    entitled to claim any benefit under the decrees in question. Rejecting
    the above contention this Court observed at page 836 of the Report B
    thus:

                      "In support of these appeals, learned counsel put for-
               ward 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 C
               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 shollld have been passed by the
               lower court in favour of the legal representatives as repre-
               senting the estate of Neki. We are unable to accept the D
               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 pro-
               perty 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 E
               exists antecedently to the •ale, the foundation of the right
                being the avoidance of the inconveniences and distur-
                bances which would arise from the introduction of a
                stranger into the land. The correct legal position is that the
                statutory law of pre-emption imposes a limitation or dis-
                ability upon the ownership of a property to the extent that F
                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 en-
                forced against a purchaser by the person entitled to pre- G
                empt."

           In reaching the above conclusion this Court while accepting the
     contention that the right of pre-emption under section 15( 1)(a) of the
     Act did not create an interest in the land was, however, of the view that
     the right did not abate on the death of the plaintiff during course of the H
                                                                                ~
     900                   SUPREME COURT REPORTS             [1988) .2 S.C.R.

   proceedings in court. This Court referred to the decision of the Punjab
A
  & Haryana High Court in Faqir Ali Shah v. Ram Kishan & Ors., 133                   1--
  P.R. 1907 and the decision of the Allahabad High Court in Wajid Ali•
  & Anr. v. Shaban & Ors., l.L.R. 31 Allahabad 623. In the latter
  decision, namely, the Wajid Ali's case (supra) the High Court of
  Allahabad had held that where a right of pre-emption existed by
B 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 significant that
  in that case the High Court of Allahabad had taken the view that the
                                                                                l
                                                                                ~
  right of pre-emption which had accrued in favour of the pre-emptor
  would descend along with the property in virtue of which it subsisted
c to the heir of the pre-emptor, even when the death of the pre-emptor
  had taken place before he made a claim for pre-emption. The Full
  Bench of the High Court of Punjab & Haryana which heard Chan-
  drup's case (supra) after noticing the decision of this Court in Hazari's
  case (supra) distinguished the said decision observing thus:
D                                                                                    ' -
                     "21. To conclude, on the particular language of the
              statute, on principle, and on the weight of precedent, it is
              held that the purely statutory right of pre-emption, resting
              wholly on blood relationship alone under section 15(1) of
              the Punjab Pre-emption Act, is not a heritable right and           y
E             does not devolve on the heirs on the death of the plaintiff-
              pre-emptor before the grant of the decree in the suit. The
              answer to the question posed at the very outset is thus
              rendered in the negative."
                                                                                 "
         We find it difficult to agree with the decision of the Full Bench of
F   the High Court of Punjab & Haryana in the above case.
                                                                                )it
        While it may not be disputed that a right of pre-emption does not
  give rise tp an interest in immovable property, in the instant case the
  plaintiff had acquired the said right of pre-emption under the custom-
  ary law by virtue of the right of tenancy which he had in the portion of       •
G the property in his possession. It cannot be disputed that the right of
  tenancy itself was heritable and, therefore, every right attached to the
  said right of tenancy or incidental to it should ordinarily be heritable.
  There can be no distinction between a right of pre-emption arising
  under the statute law or such a right arising under customary law. The
  other reason given by the Full Bench in order to distinguish the deci-
H sion of this Court in Hazari's case (supra) namely that the pre-emptor
               KANTA RAN! v. RAMA RAN1 [VENKATARAMIAH, J.]                901

•4y   had died at the stage of second appeal in the said case while the A
      pre-emptor had died in the case before the Full Bench at the stage of
      trial also does not appeal to us. The view expressed in Muhammad
      Husain v. Niamet-un-nissa and Ors., I.L.R. 20 Allahabad 38 that
      under Mohammadan law applicable to the Sunni sect if a plaintiff in a
      suit for pre-emption had not obtained his decree for pre-emption in
      his life time the right to sue did not survive to his heirs is not relevant B
      for purposes of this case. It is true that the said decision was noticed by
      this Court in Hazari's case (~upra) but this Court did not express any
      opinion on the correctness of the above position. In the case before us
      the right of pre-emption is claimed not on the basis of Mohammadan
      law but under customary law by the heirs of a tenant who was in
      possession of the property in question and who had instituted a suit for C
      enforcing the said right of pre-emption. It is appropriate to refer to the
      following passage in Faqir Ali's case (supra) which is extracted in
       Hazari's case (supra) at page 837:
                        "While, therefore, there is good reason why volun-
                  tary transfers should not pass a right of pre-emption as        D
                  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
                                                                                  E
                  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 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     F
                  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 G
                   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
                                                                                H
                   on his father."
    902                  SUPREME COURT REPORTS          (1988] 2 S.C.R.

A          Hence the fact that the pre-emptor had died in the present case
                                                                           JA
    at the trial stage cannot make any difference. We are, therefore, of the
    view that the decision of the Punjab & Haryana High Court in
     Chandrup's case (supra) is inconsistent with the decision of this Court
    in Hazari's case (supra) and has to be overruled. We accordingly over-
    rule it. We hold that the right to sue in the present case survived on the
B
    death of Kishan Chand in favour of the appellants who were his legal
    representatives and they were entitled to be brought on record in
    substitution of the original plaintiff Kishan Chand under Order 22
    Rule 3 of the Civil Procedure Code. The appeal is accordingly allowed,
    the order of the High Court is set aside and the order of the trial court
    is restored. The trial court is directed to bring the appellants on record
C   as the legal representatives of the deceased-plaintiff and to proceed to~.
    dispose of the suit on merits.                                         f
    N.P.V.                                               Appeal allowed




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