Hari Ram and others vs Surjit

G.C. Mittal, J.—The short point involved in this second appeal is whether the limitation under Article 97 of the Limitation Act, 1963 for the purpose of a pre emption suit would start from the date of decree passed in a suit for specific performance of contract or from the date of registration of the sale deed executed in pursuance of the specific performance decree.

In 1950 Smt Kishmasbi mortgaged her land in favour of Hari Ram etc. with possession Later on by agreement dated 26 8.1968 she agreed to sell her land to the mortgagees who were already in possession of the same for a consideration of Rs. 10,000/-. Since the vendor did not execute the sale deed in pursuance of the agreement, the mortgaged filed a suit for specific performance of contract which finally stood decreed in their favour by judgment and decres dated 26.12 1974 In pursuance of decre, the reader of the Court got the tale deed executed and registered in favour of the mortgagees on 23.4.1975, since the judgment-debtors failed to get the sale deed executed, as directed in the decree. On 19 4.1976, the present suit for pre-emption was filed by the pre-emptor on the plea that he was vendor''s brother and a co-sharer. The Defendants set up the plea that the suit was barred by time, besides taking other pleas. Both the Courts below found that the pre emptor had established preferential right and decided the point of limitation in Plaintiff''s favour. This is Defendants'' second appeal.

In order to appreciate the point involved in this appeal, it would be usefull to reproduce Article 97 of the Limitation Act:

Description of suit

Period of limitatior

Time from which period begins to run

To enforce a right of preemption whether the right is founded on law or general usage or on special contract.

One Year

When the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where the subject matter of the sale does not admit of physical possession of he whole or part of the property, when the instrument of sale is registered.

As seen above, it is case where the land was not capable of physical possession, because the proposed vendees were already in possession as mortgagees, therefore, the second part of the Article would be-applicable, whereunder the limitation for preemption suit would start from the date the instrument of sale is registered. In view of the specific provision in second part of Article 97, the limitation is to be counted from the date an instrument of sale is registered which, in this case, happened on 23-4-1975 and the suit filed on 19.4.1975 is clearly within limitation.

The matter can be looked at from another angle. A right of pre-emption is not a right of repurchase, but a right of substitution. Right of substitution would arise only when the sale is complete and it would be complete only by registration of the sale deed and not before that Therefore, viewing the matter from any angle, the right to file a suit for pre-emption would arise only when the sale deed is registered and not before that

For the reasons recorded above, this appeal is dismissed, but since a question of law is involved, the parties are left to bear their own costs.