Joginder Kaur and Another vs Jasbir Singh and Others

Mehar Singh, J.—This revision application, referred to a larger Bench by the order, dated August 21, 1964, of Shamsher Bahadur, J., arises out of a suit for pre-emption of agricultural land. The pre-emptor, having claimed right to pre-empt the sale of the land u/s 15(2)(b), Secondly, of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913), on the ground of being husband''s brother of the vendor, Ajmer Kaur, has died during the pendency of the suit. His sons have been brought on the record of the suit as his legal representatives, and it is against the order impleading the sons as the legal representatives in the suit in place of their deceased father, the pre-emptor, that this revision application has been made. Under the same provision, husband''s brother''s son has also the same right of pre-emption as the husband''s brother, in other words, the sons of the pre-emptor have an independent right to pre-empt the same sale. It is not denied that they did not institute such a suit and that if they are to do it now, after the death of their father, it would be barred by time.

The argument on the side of vendees is that personal right of pre-emption based on mere relationship dies with the pre-emptor, when such relationship ceases, and such a right cannot be continued by the legal representatives of the deceased pre-emptor as in this case. Reliance in this respect, is placed on Partap Singh v. Daulat ILR (1914) 36 All. 63, in which the Plaintiff had claimed in a suit for pre-emption a preferential right over the vendee on the ground of near relationship to the vendor, but the Plaintiff''s sons had not, and on the death of the Plaintiff it was held that the Plaintiff''s sons could not claim to take advantage of the relationship in which their father had stood to the vendor. The case is however, distinguishable from the present case, because the sons in that case had no independent right to pre-empt the sale. In the present case the sons of the pre-emptor have had such a right from the very date the sale was effected. So this case does not help to advance the argument on the side of the vendees. In the Lahore High Court it has been settled that a right to sue for pre-emption upon a cause of action which accrued to a person in his life-time passes at his death to his successor who inherits the property through which the right had accrued. Faqir All Shah v. Ram Kishan 133 P.R. 1907 (F.B.) and other cases in Punjab referred to at page 145 of the Law of Pre-emption in the Punjab by Ellis, 1961 Edition. The] position of the law is the same in Allahabad as has been held by a Full Bench of that Court in Wajid Ali v. Shaban ILR (1909) 31 All. 623. Lately in Lal Singh v. Mohan Singh, Second Appeal from Order No. 19, of 1963, decided on July 31, 1963, Harbans Singh, J., has followed the previous decisions of the Punjab Chief Court in a case exactly parallel to the present case pointing out that the test laid down in the decided cases is that the heir of a deceased Plaintiff in a pre-emption suit can continue the suit if, at the date of the sale, he had an independent right to pre-empt. The sons of the deceased pre-emptor in the present case had such a right as had already been pointed out. The order of the trial Court in impleading them as legal representatives of the deceased Plaintiff in this pre-emption suit is, in the circumstances, not open to any argument what so ever.

The revision application fails and is dismissed, but, in the circumstances of the case, the parties are left to their own costs.

D. Falshaw, C.J.

I agree.