Full Judgment Text
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PETITIONER:
BISHAN SINGH & OTHERS
Vs.
RESPONDENT:
KHAZAN SINGH & ANOTHER
DATE OF JUDGMENT:
20/05/1958
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAS, SUDHI RANJAN (CJ)
BHAGWATI, NATWARLAL H.
DAS, S.K.
CITATION:
1958 AIR 838 1959 SCR 878
ACT:
Pre-emption, nature of the right-Pre-emptor filing suit and
obtaining decree-Second pre-emptor of equal degreefiling
suit for Pre-emption First pre-emptor deositing purchase
moneand obtainIng Possession-If suit of second Pre-
emptor cansucced-Lis penden-Scope--Punjab Pre-emptor
Act (Pun. 1 Of 1913),ss. 17, 28.
HEADNOTE:
Upon the sale of certain village land the appellants filed a
suit for pre-emption, and a compromise decree was passed
allowing pre-emption provided the appellants deposited the
purchase amountbvacertaindate. The appellants Posited the
amount and got Possession of the land. Before the
appellants deposited
879
the amount, the respondents who were pre-emptors of an equal
degree, filed a suit to enforce their right of pre-emption.
The appellants contended that the land could be divided
between two equal pre-emptors only when both the suits were
pending before the court at the time of the passing of the
decree, and that the appellants having obtained the decree
and paid the amount got substituted in place of the vendees
and the respondents could succeed only by establishing a
superior right of pre-emption. The respondents countered
that they had a statutory right under s. 17 Of the Punjab
Pre-emption Act to share the land with the appellants and
that the appellants, having been substituted in place of the
vendees Pendente lite, were hit by the doctrine of lis
pendens and could not claim a higher right than the vendees:
Held, that the respondents’ suit could not succeed as they
(lid not have a superior right of pre-emption over the
appellants who had become substituted in place of the
vendees upon payment of the purchase money under their
decree.
A pre-emptor has two rights: (i) inherent or primary right
to the offer of a thing about to be sold and (2) a secondary
or remedial right to follow the thing sold. The secondary
right is simply a right of substitution in place of the
original vendee.
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Dhani Nath v. Budhu, 136 P. R. 1894 at P. 511 and Gobind
Dayal v. Inayatullah, (1885) I.L.R. 7 All. 775, followed.
In a suit for pre-emption the plaintiff must show that his
right is superior to that of the vendee and that it subsists
at the time he exercises his right. This right is lost if
before he exercises it another person with an equal or
superior right has been substituted in place of the original
vendee. The Punjab Preemption Act defines the right of pre-
emption and provides a procedure for enforcing it. It does
not enlarge the content of this right nor does it introduce
any change in the incidents of the right. Section 28 Of the
Act does not preclude the Court from giving a decree for
pre-emption in a case where the suits are not joined
together and one of the suits has been decreed separately.
The doctrine of lis pendens applies only to a transfer
Pendente lite, but it cannot affect a pre-existing right.
If the sale is a transfer in recognition of a preexisting
and subsisting right, it would not be affected by the
doctrine, as the transfer does not create a new right
Pendente lite but if the preexisting right became
unenforceable by reason of limitation or otherwise, the
transfer, though ostensibly made in recognition of such a
right, in fact creates only a new right pendente lite. The
appellants’ right of pre-emption was subsisting and was not
barred by limitation at the time of the transfer in their
favour as they had filed a suit and had obtained a decree
and the coercive
112
880
process was still in operation. Consequently the appellants
were not hit by the doctrine of lis pentlens and they
acquired an indefeasible right to the land when they took
possession of it after depositing the purchase money in
court.
Mool Chand v. Ganga jal, (1930) I.L.R. 11 Lah. 258, Mt.
Sant Kaor v. Teja Singh, I.L.R. [1946] Lah. 467, Mohammad
Sadhiq v. Ghasi Ram, A.I.R. 1946 Lah. 322 and Wazir Ali Khan
v. Zahir Ahmad Khan, A.I.R. 1949 East Punj. 193, approved.
Kundan Lal v. Amar Singh, A.I.R. 1927 All. 664, disapproved.
The right of pre-emption is effectively exercised or
enforced only when the pre-emptor has been substituted for
the vendee. A conditional decree whereunder the pre-emptor
gets possession only if he pays a specified amount within a
prescribed time and which also provides for the dismissal of
the suit in case the condition is not fulfilled, cannot
bring about the substitution of the decree holder for the
vendee before the condition is fulfilled. Such substitution
takes effect only when the decree holder fulfils the
condition and takes possession of the land.
Deonandan prashad Singh v. Ramdhari Choudhyi, (1916) L. R.
44 I. A. 80, followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 255 of 1954.
Appeal by Special Leave from the judgment and decree dated
April 29, 1953, of the former Pepsu High Court in R. S. A.
Nos. 57 and 130 of 1952, arising out of the judgment and
decree dated March 8, 1952, of the Court of Addl. Dist.
Judge, Faridkot, in Civil Appeal No. 10 of 1952, against the
judgment and decree dated December 4, 1951, of the Court of
‘ubJudge 11 Class, Faridkot, in File No. 13 of 1951.
Jagan Nath Kaushal and K. L. Mehta, for the appellant.
Kapur Chand Puri and Tarachand Brijmohan Lal, for
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respondents Nos. 1 to 3.
1958. May 20. The Judgment of the Court was delivered by
SUBBA RAO J.-This - appeal by Special Leave against the
judgment and decree of the High Court of Patiala and East
Punjab States Union raises an interesting question
pertaining to the Law of Preemption.
881
The material facts are not in dispute and may be briefly
stated: The dispute relates to a land measuring 179 kanals
and 2 marlas, situate in village Wanderjatana. On August
26, 1949, defendants 3 to 7 sold the said land to defendants
I and 2 for a consideration of Rs. 37,611. On August 26,
1950, defendants 8 to 11 instituted a suit, Suit No. 231 of
1950 (Exhibit P. 26/1) in the Court of the Subordinate
Judge, 11 Class, Faridkot, to pre-empt the said sale on the
ground, among others, that they bad a right of preemption.
On January 6, 1951, the vendees, i. e., defendants I and 2,
and the plaintiffs therein, i. e., defendants 8 to 11
(appellants in the present appeal), entered into a
compromise. Under the terms of the compromise, the vendees
admitted that they had received Rs. 1,700 from defendants 8
to II and that defendants 8 to 1 1 agreed to pay the balance
of the consideration, amounting to Rs. 35,911 on the 27th
April, 1951,. It was further agreed that on the payment of
the said amount, they should get possession through Court.
As the amount agreed to be paid was in excess of the
pecuniary jurisdiction of the Court of the Subordinate
Judge, they filed the compromise deed in the Court of the
District Judge and on the basis of the said compromise, the
District Judge made a decree dated January 23, 1951. It was
provided in the decree that in case defendants 8 to I I
failed to pay the balance to the vendees on April 27, 1951,
the suit should stand dismissed and that if the said balance
was paid on that date, the vendees should deliver possession
of the land in dispute to them. Defendants 8 to 11
deposited the balance of Rs. 35,911 on April 23, 1.951, and
got possession of the land on May 17, 1951.
Before the said defendants (8 to 11) deposited the amount in
Court under the terms of the compromise decree, the
resondents herein, claiming to be owners of land in the same
patti, filed Suit No. 13 of 1951 in the Court of the
Subordinate Judge, 11 Class, Faridkot, to enforce their
right of pre-emption. To that suit the original vendors
were impleaded as defendants 3 to 7, the vendees as
defendants I and 2 and the plaintiffs in Suit No. 231 of
1950 as defendants 8 to 11.
882
Defendants 8 to 11 contested the suit, inter alia, on the
grounds that the plaintiffs had no right of preemption
superior to that of theirs, that the suit was barred by
limitation and that the whole of the sale consideration had
been fixed in good faith and paid.
The learned Subordinate Judge found all the issues in favour
of defendants 8 to 11 and dismissed the suit. On the main
issue he found that the said defendants, by obtaining a
decree for pre-emption before the rival claimants had filed
their suit, had become vendees through Court and so the
plaintiffs could not succeed unless they had a superior
right.
The plaintiffs preferred an appeal to. the Additionl
District Judge, Faridkot, against the said decree. The
District Judge held that the plaintiffs and defendants 8 to
11 had equal rights of pre-emption and were entitled to
share the sale in the proportion of 3/7 and 4/7 respectively
on payment of the proportionate amount of the consideration.
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On the main question, he took the view that defendants 8 to
11 did not exercise their right of pre-emption when the
present suit was instituted for the reason that by the date
of the filing of the suit they had not deposited the
purchase money in Court. Both the parties filed Second
Appeals against the decision of the District Judge in the
High Court of Patiala questioning that part of the decree
which went against them. The High Court upheld that part of
the decree of the learned District Judge holding that the
plaintiffs were entitled to a share in the suit property but
remanded the suit to the District Judge to give his findings
on the following two questions: (1) What was the amount paid
by defendants 8 to 11 to the original vendees and whether
they paid it in good faith; (2) Whether the case would come
under s. 17C, cl. (e) of the Punjab Pre-emption Act
(hereinafter to be referred to as the -Act). As the High
Court refused to certify that the case was a fit one for
appeal to the Supreme Court, defendants 8 to 11 preferred
the above appeal by obtaining special leave of this Court.
The learned Counsel for the appellants raises the following
two contentions before us: (1) Section 28 of
883
the Pre-emption Act indicates that a property can be divided
between equal pre-emptors in terms of s. 17 of the Pre-
emption Act only when both the suits are pending before the
Court at the time of the passing of the decree ; (2) the
appellants exercised their right of pre-emption by obtaining
a decree or at any rate when they deposited the money
payable under the decree and thereby got themselves
substituted in place of the original vendees and thereafter,
the plaintiff’s can succeed only by proving their superior
right to them. The learned Counsel for the respondents
countered the aforesaid argument by stating that the
plaintiffs, being pre-emptors of equal degree, have got a
statutory right under s. 17 of the Pre-emption Act to share
the land with the appellants, and the appellants, having
been substituted in place of the original vendees pendente
lite, are hit by the doctrine of lis _pendens and therefore,
they cannot claim higher rights than those possessed by the
original vendees at the time of the filing of the suit.
Before attempting to give a satisfactory answered to the
question raised, it would be convenient at the outset to
notice and define the material incidents of the right of
pre-emption. A concise but lucid statement of the law is
given by Plowden J. in Dhani Nath v. Budhu (1) thus:
A preferential right to acquire land, belonging to another
person upon the occasion of a transfer by the latter, does
not appear to me to be either a right to or a right in that
land. It is,jus ad rem aliens acquirendum and not a jus
?’In re aliena......... A right to the offer of a thing
about to be sold is not identical with a right to the thing
itself, and that is the primary right of the pre-emptor.
The secondary right is to follow the thing sold, when sold
without the proper offer to the pre-emptor, and to acquire
it, if he thinks fit, in spite of the sale, made in
disregard of his preferential right."
The aforesaid passage indicates that a pre-emptor has two
rights: (1) inherent or primary right, i.e., a right
(1)136 P. R. 1894 at p. 5ii.
884
to the offer of a thing about to be sold and (2) secondary
or remedial right to follow the thing sold.
Mahmood J. in his classic judgment in Gobind Dayal v.
Inayatullah (1) explained the scope of the secondary right
in the following terms:
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" It (right of pre-emption) is simply a right of sub-
stitution, entitling the pre-emptor, by means of a legal
incident to which sale itself was subject, to stand in the
shoes of the vendee in respect of all the rights and
obligations arising from the sale, under which lie, derived
his title. It is, in effect, as if in a sale deed the
vendee’s name were rubbed out and pre-emptor’s name inserted
in its place".
The doctrine adumbrated by the learned Judge, namely, the
secondary right of pre-emption is simply a right of
substitution in place of the original vendee, has been
accepted and followed by subsequent decisions.
The general law of pre-emption does not recognize any right
to claim a share in the property sold when there are rival
claimants. It is well-established that the right of pre-
emption is a right to acquire the whole of the property sold
in preference to other persons (See Mool Chand v. Ganga Jal
(2)).
The plaintiff is bound to show not only that his right is as
good as that of the vendee but that it is superior to that
of the vendee. Decided cases have recognized that this
superior right must subsist at the time the pre-emptor
exercises his right and that that right is lost if by that
time another person with equal or superior right has been
substituted in place of the original vendee. Courts have
not looked upon this right with great favour, presumably,
for the reason that it operates as a clog on the right of
the owner to alienate his property. The vendor and the
vendeeire, therefore, permitted to avoid accrual of the
right of pre-emption by all lawful means. The vendee may
defeat the right by selling the property to a rival pre-
emptor with preferential or equal right. To summarize: (1)
The right of pre-emption is not a right to the thing sold
but a right to the offer of a thing about to be sold.
(i) (1885) I.L. R. 7 All. 775, 809.
(2) (1930) I.L.R. 11 Lah. 258, 273.
885
This right is called the primary or inherent right. (2) The
pre-emptor has a secondary right or a remedial right to
follow the thing sold. (3) It is a right of substitution but
not of re-purchase, i. e., the pre-emptor takes the entire
bargain and steps into the shoes of the original vendee. (4)
It is a right to acquire the whole of the property sold and
not a share of the property sold. (5) Preference being the
essence of the right, the plaintiff must have a superior
right to that of the vendee or the person substituted in his
place. (6) The right being a very weak right, it can be
defeated by all legitimate methods, such as the vendee
allowing the claimant of a superior or equal right being
substituted in his place.
The next question is whether this right is modified or
otherwise enlarged by the’ provisions of the Act. Relevant
provisions of the Act, material to the present purpose, read
thus:
Section 4: " The right of pre-emption shall mean the right
of a person to acquire agricultural land or village
immovable property or urban immovable property in preference
to other persons, and it arises in respect of such land only
in the case of sales and in respect of such property only in
the case of sales or of foreclosures of the right to redeem
such property".
Section 13: " Whenever according to the provisions of this
Act, a right of pre-emption vests in any class or group of
persons the right may be exercised by all the members of
such class or group joint, and, if not exercised by them all
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jointly, by any two or more of them jointly, and, if not
exercised by any two or more of them jointly, by them
severally".
Section 17: " Where several pre-emptors are found by the
Court to be equally entitled to the right of preemption, the
said right shall be exercised,-
(a)if they claim as co-shares, in proportion among
themselves to the shares they already hold in the land or
property ;
(b)if they claim as heirs, whether co-sharers or not, in
proportion among themselves to the shares in which but for
such sale, they would inherit the land or property in the
event of the vendor’s decease without other heirs;
886
(c)if they claim as owners of the estate or recognised
subdivision thereof, in proportion among themselves to the
shares which they would take if the land or property were
common land in the estate or the subdivision, as the case
may be;
(d)if they claim as occupancy tenants, in proportion among
themselves to the areas respectively held by them in
occupancy right;
(e)in any other case, by such pre-emptors in equal
shares."
Section 19: " When any person proposes to sell any
agricultural land or village immovable property or urban
immovable property or to foreclose the right to redeem any
village immovable property or urban immovable property, in
respect of which any persons have a right of preemption, lie
may give notice to all such persons of the price at which he
is willing to sell such land or property or of the amount
due in respect of the mortgage, as the case may be.
Such notice shall be given through any Court within the
local limits of whose jurisdiction such land or property or
any part thereof is situate, and shall be deemed
sufficiently given if it be stuck up on the chaupal or other
public place of the village, town or place in which the land
or property is situate."
Section 20: " The right of pre-emption of any person shall
be extinguished unless such person shall, within the period
of three months from the date on which the notice tinder
section 19 is duly given or within such further period not
exceeding one year from such date as the court may allow,
present to the Court a notice for service on the vendor or
mortgagee of his intention to enforce his right of
-pre-emption. Such notice shall state whether the preemptor
accepts the price or amount due on the footing of the
mortgage as correct or not, and if not, what sum he is
willing to pay."
" When the Court is satisfied that tile said notice has been
duly served on the vendor or mortgagee the proceedings shall
be filed."
Section 28: " When more suits than one arising out of the
same sale or foreclosure are pending the plaintiff
887
in each suit shall be joined as defendant in each of the
other suits, and in deciding the suits the court shall in
each -decree state the order in which each claimant is
entitled to exercise his right".
The Act defines the right and provides a procedure for
enforcing that right. It does not enlarge the content of
that right or introduce any change in the incidents of that
right. Section 4 embodies the preexisting law by defining
the right as a right of a person to acquire land in
preference to other persons in respect of -,ales of
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agricultural lands. Section 13 cannot be read, as we are
asked to do, as a statutory recognition of a right of
preemptors of equal degree to exercise their rights piece-
meal confined to their shares in the land. Section 13
confers on a group of persons, in whom the right of
preemption vests, to exercise that right either jointly or
severally, that is to say, either the group of persons or
one of them may enforce the right in respect of the entire
sale. Section 17 regulates the distribution of preempted
land when the Court finds that several pre-emptors are
equally entitled to the right of pre-emption. But this
Section applies only where (1) the right is yet to be
exercised and (2) the pre-emptors are found by the Court to
be equally entitled to exercise the right. The section does
not confer the right on or against a person, who has already
exercised the right and ceased to be a preemptor by his
being legitimately substituted in place of the original
vendee. (See Mool Chand v. ganga Jal (1) at p. 274 and Lokha
Singh v. Sermukh Singh (2)). Sections 19 and 20 prescribe
the procedure for the exercise of the primary right, while
s. 28 confers a power on the Court to join together two or
more suits arising out of the same sale, so that suitable
directions may be given in the decree in regard to the order
in which each claimant is entitled to exercise the right.
This section is enacted presumably to avoid conflict of
decisions and finally determine the rights of the various
claimants. The aforesaid provisions do not materially
affect the characteristics of the right of pre-
(1) (1930) I.L.R. 11 Lah. 258.
113
(2) A.I.R. 1952 Punj. 206, 207.
888
emption as existed before the Act. They provide a
convenient and effective procedure for disposing of together
different suits, arising out of the same transaction, to
avoid conflict of decisions, to fix the order of priority
for the exercise of their rights and also to regulate the
distribution of the preempted land between rival pre-
emptors.
The provisions do not in any way enable the preemptor to
exercise his right without establishing his superior right
over the vendee or the person substituted in his place or to
prevent the vendor or the vendee, by legitimate means, to
defeat his right by getting substituted in place of the
vendee a pre-emptor with a superior right to or an equal
right with that of the plaintiff.
Nor can we accept the argument of the learned counsel for
the appellants that s. 28 precludes the Court from giving a
decree for pre-emption in a case where the two suits were
not joined together but one of the suits was decreed
separately. Section 28 enacts a convenient procedure, but
it cannot affect the substantative rights of the parties.
We do not see that, if the plaintiffs were entitled to a
right of pre-emption, they would have lost it by the
appellants obtaining a decree before the plaintiffs
instituted the suit, unless it be held that the decree
itself had the effect of substituting them in place of the
original vendees. We cannot, therefore, hold that the
plaintiffs’ suit is in any way barred under the provisions
of the Act.
This leads us to the main question in this case, namely,
whether the appellants having obtained a consent decree oil
January 23, 1951, in their suit against the vendees and
having paid the amount due under the decree and having taken
delivery of the property and thus having got themselves
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substituted in place of the original vendees, can
legitimately defeat the rights of the plaintiffs, who, by
reason of the aforesaid substitution, were only in the
position of pre-emptors of equal degree vis-a-vis the
appellants and therefore ceased to have any superior rights.
The learned Counsel for the respondents contends that the
appellants are hit by the doctrine of lis pendens and
889
therefore the act of substitution, which was effected on
April 23, 1951, could not be in derogation of their right of
pre-emption, which they have exercised by filing their suit
on February 15, 1951. It is now settled law in the Punjab
that the rule of lis pendens is as much applicable to a suit
to enforce the right of pre-emption as to any other suit.
The principle on which the doctrine rests is explained in
the leading case of Bellami v. Sabine (1), where the Lord
Chancellor said that pendente lite neither party to the
litigation can alienate............ the property so as to
affect his opponent. In other words, the law does not allow
litigant parties, pending the litigation, to transfer their
rights to the property in dispute so as to prejudice the-
other party.
As a corollary to this rule it is laid down that this
principle will not affect the right existing before the
suit. The rule, with its limitations, was considered by a
Full Bench of the Lahore High Court in Mool Chand v. Ganga
Jal (2). In that case, during the pendency of a pre-emption
suit, the vendee sold the property which was the subject
matter of the litigation to a person possessing a right of
pre-emption equal to that of the pre-emptor in recognition
of that person’s right of pre-emption. This re-sale took
place before the expiry of the period of limitation for
instituting a pre-emption suit with respect to the original
sale. The Full Bench held that the doctrine of lis pendens
applied to preemption suits; but in that case, the resale in
question did not conflict with the doctrine of lis pendens.
Bhide J. gave the reason for the said conclusion at page 272
thus:
" All that the vendee does in such a case is to take the
bargain in the assertion of his pre-existing pre-emptive
right, and hence the sale does not offend against the
doctrine of lis pendens ".
Another Full Bench of the Lahore High Court accepted and
followed the aforesaid doctrine in Mt. Sant Kaur v. Teja
Singh (3). In that case, pending the suit for pre-emption,
the vendee sold the land purchased
(i) (1857) 1 De G. & J. 566; 44 E. R. 842.
(2) (1930) I.L.R. 11 Lah. 258, 273. (3) I.L.R. [1946] Lah.
467,
890
by him to a person in recognition of a superior right of
pre-emption. Thereafter, the second purchaser was brought
onrecord and was added as a defendant to the suit. At
the time of the purchase by the person having a superior
right of pre-emption, his right to enforce it was barred by
limitation. The ]High Court held that that circumstance
made a difference in the application of the rule of lis
pendens. The distinction between the two categories of
cases was brought out in bold relief at page 145 thus:
" Where the subsequent vendee has still the means of
coercing, by means of legal action, the original vendee into
surrendering the bargain in his favour, a surrender as a
result of a private treaty, and out of Court, in recognition
of the right to compel such surrender by means of a suit
cannot properly be regarded as a voluntary transfer so as to
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attract the application of the rule of lis pendens. The
correct way to look at the matter, in a case of this kind,
is to regard the subsequent transferee as having simply been
substituted for the vendee in the original bargain of sale.
He can defend the suit on all the pleas which he could have
taken had the sale been initially in his
own favour. "
" However, where the subsequent transferee has lost the
means of making use of the coercive machinery of the law to
compel the vendee to surrender the original bargain to him,
a re-transfer of the property in the former’s favour cannot
be looked upon as anything more than a voluntary transfer in
the former’s favour of such title as he had himself acquired
under the original sale. Such transfer has not the effect
of substituting the subsequent transferee in place of the
vendee in the original bargain. Such a transferee takes the
property only subject to the result of the suit. Even if
lie is impleaded as a defendant in such suit, he cannot be
regarded as anything more than a representative-in-interest
of the original vendee, having no right to defend the suit
except on the pleas that were open to such vendee himself ".
This case, therefore, expressly introduces a new element in
the applicability of the doctrine of lis pendens
891
to a suit to enforce the pre-emptive right. If the right of
the pre-emptor of a superior or equal degree was subsisting
and enforceable by coercive process or otherwise, his
purchase would be considered to be in exercise of that pre-
existing right and therefore not hit by the doctrine of lis
pendens. On the other hand, if he purchased the land from
the original vendee after his superior or equal right to
enforce the right of preemption was barred by Limitation, he
would only be in the position of a representative-in-
interest of the vendee, or to put it in other words, if his
right is barred by limitation, it would be treated as a non-
existing right. Much to the same effect was the decision of
another Full Bench of the Lahore High Court in Mohammad
Sadiq v. Ghasi Ram (1). There, before the institution of
the suit for pre-emption, an agreement to sell the property
had been executed by the vendee in favour of another
prospective pre-emptor with an equal degree of right of pre-
emption; subsequent to the institution of the suit, in
pursuance of the agreement, a sale deed had been executed
and registered in the latter’s favour, after the expiry of
the limitation for a suit to enforce his own pre-emptive
right. The Full Bench held that the doctrine of lis pendens
applied to the case. The principle underlying this decision
is the same as that in Mt. Sant Kaur v. Te a Singh (2),
where the barred right was treated as a non-existent right.
The same view was restated by another Full Bench of the East
Punjab High Court in Wazir Ali Khan v. Zahir Ahmad Khan (3).
At p. 195, the learned Judges observed:
" It is settled law that unless a transfer pendente lite can
be held to be a transfer in recognition of a subsisting pre-
emptive right, the rule of lis pendens applies and the
transferee takes the property subject to the result of the
suit during the pendency where of it took place".
The Allahabad High Court has applied the doctrine of lis
pendens to a suit for pre-emption ignoring the limitation
implicit in the doctrine that it cannot affect
(i) A.I.R. 1946 Lah. 322. (2) I.L.R. [1946] Lah. 467,
(3) A.I.R. [1949 East Punj. [93.
892
a pre-existing right. (See Kundan Lal v. Amar Singh (1)).
We accept the view expressed by the Lahore High Court and
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East Punjab High Court in preference to that of the
Allahabad High Court.
In view of the aforesaid four Full Bench decisions three of
the Lahore High Court and the fourth of the East Punjab High
Court a further consideration of the case is unnecessary.
The settled law in the Punjab may be summarized thus:
The doctrine of lis pendens applies only to a transfer
pendente lite, but it cannot affect a pre-existing right.
If the sale is a transfer in recognition of a pre-existing
and subsisting right, it would not be affected by the
doctrine, as the said transfer did not create now right
pendente lite ; but if the pre-existing right became
unenforceable by reason of the fact of limitation or
otherwise, the transfer, though ostensibly made in
recognition of such a right, in fact created only a
new right pendente lite.
Even so, it is contended that the right of the appellants to
enforce their right of pre-emption was barred by limitation
at the time of the transfer in their favour and therefore
the transfer would be hit by the doctrine of lis pendens.
This argument ignores the admitted facts of the case. The
material facts may be recapitulated: Defendants 3 to 7 sold
the land in dispute to defendants 1 and 2 on August 26,
1949, and the sale deed was registered on February 15, 1950.
The appellants instituted their suit to pre-empt the said
sale on August 26, 1950, and obtained a compromise decree on
January 23, 195 1. They deposited the balance of the amount
payable on April 23, 1951, and took possession of the land
on May 17, 1951. It would be seen from the aforesaid facts
that the appellants’ right of pre-emption was clearly
subsisting at the time when the appellants deposited the
amount and took possession of the land, for they not only
filed the suit but obtained a decree therein and complied
with the terms of the decree within the time prescribed
thereunder. The coercive process was still in operation. if
so, it follows that the appellants are not hit by the
(i)A.I.R. 1927 All. 664.
VI
893
doctrine of lis pendens and they acquired an indefeasible
right to the suit land, at any rate, when they took
possession of the land pursuant to the terms of the decree,
after depositing in Court the balance of the amount due to
the vendors.
We shall briefly touch upon another argument of the learned
Counsel for the appellants, namely, that the compromise
decree obtained by them, whereunder their right of pre-
emption was recognized, clothed them with the title to the
property so as to deprive the plaintiffs of the equal right
of pre-emption. The right of pre-emption can be effectively
exercised or enforced only when the pre-emptor has been sub-
stituted by the vendee in the original bargain of sale. A
conditional decree, such as that with which we are
concerned, whereunder a pre-emptor gets possession only if
he pays a specified amount within a prescribed time and
which also provides for the dismissal of the suit in case
the condition is not complied with, cannot obviously bring
about the substitution of the decreeholder in place of the
vendee before the condition is complied with. Such a
substitution takes effect only when the decree-holder
complies with the condition and takes possession of the
land.
The decision of the Judicial Committee in Deonandan Prashad
Singh v. Ramdhari Chowdhri (1) throws considerable light on
the question whether in similar circumstances the pre-emptor
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can be deemed to have been substituted in the place of the
original vendee. There the Subordinate Judge made a pre-
emption decree under which the pre-emptors were in
possession from 1900 to 1904, when the decree was reversed
by the High Court and the original purchaser regained
possession and in 1908, the Privy Council, upon further
appeal, declared the pre-emptors’ right to purchase, but at
a higher price than decreed by the Subordinate Judge. In
1909 the pre-eimptors paid the additional price and
thereupon again obtained possession. The question arose
whether the pre-emptors were not entitled to mesne profits
for the period between 1904 to 1909, i.e., during the period
the judg-
(i)(1916) L. R. 44 1. A. 80.
894
ment of the first appellate Court was in force. The Privy
Council held that during that period the preemptors were not
entitled to mesne profits. The reason for that conclusion
was stated at page 84 thus:
" It therefore follows that where a suit is brought it is on
payment of the purchase-money on the specified date that the
plaintiff obtains possession of the property, and until that
time the original purchaser retains possession and is
entitled to the rents and profits. This was so held in the
case of Deokinandan v. Sri Ram (1) and there Mahmud J. whose
authority is well recognized by all, stated that it was only
when the terms of the decree were fulfilled and enforced
that the persons having the right of pre-emption become
owners of the property, that such ownership did not vest
from the date of sale, notwithstanding success in the suit,
and that the actual substitution of the owner of the pre-
empted property dates with possession under the decree ".
This judgment is, therefore, a, clear authority for the
position that the pre-emptor is not substituted in the place
of the original vendee till conditions laid down in the
decree are fulfilled. We cannot, therefore, agree with the
learned Counsel that the compromise decree itself perfected
his clients’ right in derogation to that of the plaintiffs.
But as we have held that the appellants complied with the
conditions laid down in the compromise decree, they were
substituted in the place of the vendee before the present
suit was disposed of. In the aforesaid view, the other
questions raised by the appellants do not arise for
consideration. In the result, the appeal is allowed and the
suit is dismissed with cost,-, throughout.
Appeal allowed.
(1) (1889) I. L. R. 12 All. 234.
895