Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
KANTA RANI C KANTI DEVI & ANR.
Vs.
RESPONDENT:
RAMA RANI
DATE OF JUDGMENT08/02/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
OJHA, N.D. (J)
CITATION:
1988 AIR 726 1988 SCR (2) 895
1988 SCC (2) 109 JT 1988 (1) 270
1988 SCALE (1)264
ACT:
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 emption conferred 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.
HEADNOTE:
%
The property in dispute was sold by its original owner
to the respondent. Claiming that there was a local custom
under which the tenant in occupation of a building had a
right of pre-emption, the tenant of a portion of the
property filed a suit for pre-emption and valued the portion
at Rs.10,000. The suit was opposed by the respondent
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 consideration.
During the pendency of the suit, the plaintiff-tenant
died and the appellants, 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 further.
The respondent, opposed the application contending that the
right of pre-emption, 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 suit was liable to be dismissed.
Aggrieved by the aforesaid order, the respondent filed
a revision petition before the High Court, 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 by s. 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-emptor
before the grant of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
896
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 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 distinction between
the right of pre-emption arising under the statutory law and
the customary law. [900F, H]
In the instant case, the plaintiff had acquired the
said right of pre-emption under 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]
The right to sue therefore survived on the death of the
plaintifftenant 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-tenant
under Order 22, Rule 3 of the Civil Procedure Code. [902B-C]
The trial court was directed to bring the appellants on
record as legal representatives of the deceased-plaintiff
and to dispose of the suit on merits. [902C]
Chandrup Singh and Another v. Data Ram and Another,
[1982] Punjab Law Reporter 771, over-ruled.
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.
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.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 453 of
1988.
897
From the Judgment and Order dated 5.3.1984 of the
Punjab and Haryana High Court in Civil Revision No. 3411 of
1983.
E.C. Agarwala for the Appellants.
G.K. Bansal for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The two short questions involved in
this case are (i) whether the right of pre-emption conferred
on a tenant 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 representatives can continue the
suit.
The property in dispute which is a double storied
building situated in the town of Jagadhri, District Ambala,
Haryana originally belonged to one Om Prakash. Kishan Chand
was in possession of a part of the said property as a
tenant. Om Prakash sold the entire 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
of the property in his occupation as a tenant, Kishan Chand
filed a suit for pre-emption in 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
Jagadhri and that in the event of a decree being passed in
the suit the plaintiff should be asked to pay a sum of
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
contending 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
898
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
No. 3411 of 1983. Before the High Court, the respondent
relied on a Full Bench decision of the High Court of Punjab
& Haryana in Chandrup Singh and Another v. Data Ram and
Another, [1982] 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 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. 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 & Haryana in Chandrup’s case
(supra). The facts in Hazari’s case (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 on 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. The suits were decreed by the
trial court. The purchasers took the matter in appeal before
the 1st Appellate Court and those appeals were dismissed,
but in one of the appeals there was a slight modification 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 1st
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
Appellate Court and the plaintiff also preferred a second
appeal before the High Court in 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 appeals were heard and dismissed
by the High Court. The purchasers
899
having failed in the Letters Patent Appeals filed before the
Punjab & Haryana High Court against the decrees passed in
the second appeals, filed three appeals before this Court by
special leave. It was contended 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 thus:
"In support of these appeals, learned counsel
put forward 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 Neki were not
entitled to be granted a decree for preemption.
The argument was that the statutory right of
preemption under the Punjab Act was not a
heritable right and no decree for pre-emption
should have been passed by the lower court in
favour of the legal representatives as
representing the estate of Neki. We are unable to
accept the 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 property
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 exists antecedently to the
sale, the foundation of the right being the
avoidance of the inconveniences and disturbances
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 disability upon the ownership of a
property to the extent that 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 preemption though not amounting to an
interest in the land is a right which attaches to
the land and which can be enforced against a
purchaser by the person entitled to preempt."
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
900
proceedings in court. This Court referred to the decision of
the Punjab & Haryana High Court in Faqir Ali Shah v. Ram
Kishan & Ors., 133 P.R. 1907 and the decision of the
Allahabad High Court in Wajid Ali & Anr. v. Shaban & Ors.,
I.L.R. 31 Allahabad 623. In the latter decision, namely, the
Wajid Ali’s case (supra) the High Court of Allahabad had
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
held that where a right of pre-emption existed by 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 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 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 Chandrup’s case (supra) after noticing
the decision of this Court in Hazari’s case (supra)
distinguished the said decision observing thus:
"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 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 the High Court of Punjab & Haryana in the
above case.
While it may not be disputed that a right of pre-
emption does not give rise to an interest in immovable
property, in the instant case the plaintiff had acquired the
said right of pre-emption under the customary law by virtue
of the right of tenancy which he had in the portion of 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 decision of this Court in Hazari’s case (supra) namely
that the pre-emptor
901
had died at the stage of second appeal in the said case
while the 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 for purposes of this case. It is true that
the said decision was noticed by this Court in Hazari’s case
(supra) 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 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
voluntary transfers should not pass a right of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
pre-emption as 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 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 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 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 on his father."
902
Hence the fact that the pre-emptor had died in the
present case 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
overrule it. We hold that the right to sue in the present
case survived on the 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 as the legal representatives
of the deceased-plaintiff and to proceed to dispose of the
suit on merits.
N.P.V. Appeal allowed
903