KARAN SINGH AND ORS. ETC.versusBHAGWAN SINGH (DEAD) BY L.R. AND ORS. ETC.

A                       KARAN SINGH AND ORS. ETC.
                                          v.
           BHAGWAN SINGH (DEAD) BY LRS. AND ORS. ETC.

                               JANUARY 24, 1996

B               [K. RAMASWAMY AD G.B. PATTANAIK, JJ.]

          Punjab Pre-emption Act, 1913 (as amended by Haryana Amendment              •
    Act JO of 1995):

C          S.15--Right of pre-emption-Claimant selling some of the a1?7icultural
    lands from undivided joint family, but in specie, to strangers-Strangers
    further selling the lands-Suit for pre-emption by claimant against purchaser
    of further sale-Held claimant having sold lands to strangers could not validly
    lay the suit for pre-emption---Cowt would take notice of amendment in law
    dwing pendency of appeal and would apply relevant provision of law prevai/-
D    ing on date of jud1?7nenl--{}nder the amended law only a tenant whose vendor
     sold land to a third pa1ty can avail the right of pre-emption.

          Evidence Act, 1872 :

E         S.115--Estoppel-Held, is applicable to cases of pre-emption--
    Claimant having sold the land to strangers cannot lay suit for pre-emption
    against purchaser of the fwther sale.

          The respondent, an agriculturist in the State of Haryana, sold some
    agricultural lands from undivided joint family properties, but in specie,
F   to strangers who were residents qf a different village. The vendees further
    sold some of the lands purchased from the respondent to the appellant in
    1982. The respondent filed a suit for pre-emption under the Punjab Pre-
    emption Act, 1913 on the ground that being a co-owner he was entitled to
    pre-emption of the land purchased by the appellant. The trial court
G   dismissed the suit, but the appellate court decreed the suit and the High
    Court, in second appeal, upheld the decree.

          In appeal before this Court, it was contended for the appellant that
    the respondent himself having sold the land to strangers from whom the
    appellant purchased, could not exercise the right of pre-emption under
H   s.15 of the Act. It was alternatively contended that with the amendment of
                                          924
                     KARAN SINGHv. BHAGWAN SINGH

    s.15 of the Act by Haryana Act 10 of 1985 w.e.f. 7.5.1995, vesting the right A
)   of pre-emption only in a tenant, the respondent had no right of pre-emp-
    tion. On behalf of the respondent it was contended that the Amendment
    Act came into force after the suit had been decreed and as such this court
    could confirm the decree validly passed.

         Allowing the appeal, this Court                                         B

           HELD : 1. Cases of pre-emption are no exception to the rule of
    estoppel to be found in s.115 of the Evidence Act. The respondent having
    sold the lands which were in specie from the co-parcenary property to
    strangers, could not validly lay the suit for pre-emption and plead in-      c
    validity of the title of his vendees selling the same lands to another
    stranger on the ground that the title was invalid due to pre-emption right
    under the Act. It may be that the 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-parceners or co-owners. [927-E-F]
                                                                                 D
         2. The right to claim pre-emption must be available at all the stages
    i.e. the date of sale, the date of suit and the date on which the decree is
    passed including the final stage to affirm the decree. When the appeal is
    pending in this Court, it is a continuation of the original proceedings and
    the entire issue is at large. This Court would take judicial notice of the E
    change in law and apply relevant provisions of law prevailing on the date of
    the order or judgment and mould the relief on the basis of the rights altered
    under the amended law. In view of the facts that Haryana Amendment Act,
    10of1995 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 F
    vendor had sold the whole or a part thereof to the third parties. Thus as on
    date, the respondent has no right to claim pre-emption under the Act, as
    amended under the Amendment Act, 1995. [927-G-H; 928-B; C-D)

         Amarjeet Kaur v. Pritam Singh, AIR (1974) 2068, relied on.
                                                                                 G
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2308 of
    1996 Etc.

         From the Judgment and Order dated 29.10.86 of the Punjab &
    Haryana High Court in R.S.A. No. 2671 of 1986.                  H
    926                    SUPREME COURT REPORTS                (1996] 1 S.C.R.

A        S.K. Bagga, Ms. Monika Bhanot, Ms. S. Bagga and S. Bagga for the
    Appellants.

             Ashok Sen, Manish Kr. Chaudhary and S.K. Verma for the Respon-


B
    dents.

             The Judgment of the Court was delivered by

             K. RAMASWAMY, J. Leave granted.
                                                                                   -
         Substitution of legal representatives of the first respondent is al-
    lowed.
c          Bhagwan Singh, the respondent has 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. Though the sale
D   deed was questioned by the wife and children of the respondent, the
    litigation proved unsuccessful. Prithvi Singh and Krishan have subsequently
    sold 34 canals 13 marlas purchased from Bhagwan Singh to the appellant.
    Rattan Singh also has sold 13 kanals 7 marlas of the said land on May 18,
    1982. Bha[,>wan Singh, thereafter, filed the suit for pre-emption under
E   Punjab Pre-emption Act, 1913. Apart from other pleas, the principle plea
    was that being co-owner, he is entitled to pre-emption of the land pur-
    chased by the appellant. The trial court decreed the suit of the respondent.
    Appeal filed by appellants was dismissed and on appeal 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.
F
          Shri Bagga, 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
    to pre-emption under Section 15 of the Act. Alternatively, it is contended
G   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.

H            Shri A.K. Sen, the learned senior counsel for the respondents, con-
       KARAN SINGI-Iv. BHAGWANSINGH [K. RAMASWAMY,J.]                   927

tended that Bhagwan Singh, being a co-owner with his co-parcenars or           A
joint owners, is entitled under Section 15 to exercise the right of pre-emp-
tion 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-parccnary, had a right
to lay the suit for pre-emption under Section 15. The subsequent amend-
                                                                               B
ment 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.

       Having given our anxious consideration to the respective contentions, C
 we arc 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- D
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 E
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, F
under the Act. We 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.

      It is settled law that the right to claim pre-emption must be available G
at the date of sale, the date of suit and the date on which the decree is
passed. lnAma1jeet Kaur v. Plitam Singh, AIR (1974) 2068, this Court had
held that when appeal against a decree is pending, the Court of appeal has
seisin of the whcle case and the whole matter becomes sub judice again
though for certain purposes, i.e., execution, the decree is regarded as final. H
    928                    SUPREME COURT REPORTS                    [1996] 1 S.C.R.

A The decree of the trial Court gets merged with the decree of the appellate
    Court. Therefore, 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 jurisdiction. When the appeal, therefore, is pend-
    ing in this Court, it is a continuation of the original proceedings and the
    entire issue is at large. It is well settled law that the Court can take judicial
B
    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 confirmed 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. Therefore, the right to pre-emption should
C   be available at all the stages including the final stage to affirm t;ie 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
D   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.                                              .,
E          The appealS are accordingly allowed. The jud~ment and order of the
    High Court and the decree and judgment of the appellate Court and that
    of the trial Court, i.e., Sub-Judge, Second Class, Bhiwani made on October
    31, 1985 in suit No. 201/83 are set aside. In conclusion, the suit stands
    dismissed but, in the circumstances, parties are directed to bear their own
    costs.

    R.P.                                                          Appeals allowed.