Syed Siraj-ul Din and Another vs Karim Dar and Others

J.N. Bhat, J.—Two suits for possession of agricultural land, one for 4 kanals under survey No. 951 in village Dadompora and the other for

9 kanals 14 marlas under survey No. 936 situate in the same village were brought by Syed Siraj-ul-Din and Syed Ahmed Shah against Karim Dar

and others. The cases were instituted on 11-9-1958 and on 10-6-1959 respectively. In the first case Ahad Shah was the vendor while in the

second suit Syed Mohd, Shah was the vendor. In the first case the alleged sale consideration was Rs. 1,000 ana in the second it was Rs. 1,500.

The Plaintiffs allegsd that they ware the heirs (agnates) of the vendors and co-sharers in the land sold.

The defence of the vendees was that they were the tenants of this land; they denied the relationship of co-sharers of the Plaintiffs vis a vis the

vendors.

A number of issues were raised in the suit. The trial court held that the vendees were tenants of the land in question, the Plaintiffs were the heirs

of the vendors and held the price as entered in the sale deeds as proved but held that on the basis of Act No. XXIII of 1959 which came into

force on 26-10-1959, the defts. being tenants of the land had a superior right to that of the pre-emptors, it dismissed the suits on 5-9-1962. On an

appeal before the learned District Judge Srinagar, the issue of consideration was not pressed. Further the Plaintiffs being co-sharers of the vendors

also was not pressed. But the Plaintiffs were held to be the heirs of the vendors. Agreeing with the finding of the trial court that the defdts. were the

tenants and they could improve their title upto the date of the decree, the learned District Judge dismissed the appeals by his order dated 6-3-

1965. The Plaintiffs have come in further appeal to this Court against these findings. The finding of fact recorded by both the Courts below is that

the pre-emptors are the heirs of the vendors and the vendees are the tenants of the land sold.

The case came up before a Single Judge of this Court who referred them to a Division Bench. Later on the Division Bench by means of its order

dated 29th of May, 1968 referred the cases to a Full Bench and the cases were heard by the Full Court. The two propositions that were referred

to the Court were whether or not the Defendants can by improving their title during the pendency of the suit defeat the right of pre-emption.

Secondly if a statute is passed during the pendency of the suit for pre-emption giving a better and a superior right to the Defendant-vendees,

whether such a right can be utilised by the vendees in order to defeat the right of pre-emption where the Act is not specifically retrospective.

The sole question that has arisen for determination in these cases is whether the amending Act No. XXIII of 1959 can have any application to

the facts of this case. As will be clear from the statement of facts given above the lands were transferred in the year 1958, sale deeds having been

executed on 11-6-1958 and registered on 12-6-1958. The suite were instituted on 11-9-1958 and 10-6-1959. The Amending Act came into

force on 26-10-1959 that is after the sales in question and after the institution of the suits. The provisions of this amending Act have to be

reproduced before I take up the arguments advanced by the learned Counsel for the parties. Section 2 of this Amending Act amends Section 14 of

the Right of Prior Purchase Act, 1993 and states:

Persons in whom right of prior purchase vests in respect of sale of agricultural land and village immovable property. Notwithstanding anything

contained in any law, rule or custom but subject to the provisions of Section 13, the right of prior purchase in respect of agricultural land and village

immovable property shall vest:

(a) Where the sale is by a sole owner or occupancy tenant or in the case of land or property jointly owned or held, by all the co-sharers jointly.

Firstly in the tenant cultivating such land where the sale of agricultural land and in the tenant occupant thereof where the sale is of village immovable

property; and

Secondly - in the persons in order of succession who but for such sale would be entitled on the death of the vendor or vendors, to inherit the land

or property sold: Sub-section (b) of Section 14 also has been amended but it is admitted before us that that provision of law does not apply to

these cases. Therefore on the findings of the lower courts the contest with respect to this property is between the heirs of the vendors and the

tenants cultivating the land.

6-7. The argument of the learned Counsel for the Appellants is that the two courts below have misunderstood the law. This Act No. XXIII of

1959 has not retrospective effect nor is retrospective operation suggested in any of its provisions. Therefore any sales of agricultural land that took

place prior to 26th of October 1959 will be governed by the unamended Act of 1993. The learned Counsel for the Appellants has relied for this

argument on a reported ruling of the Board of Judicial Advisers, reported as 3 J. and K.LR 210 wherein their Lordships after discussing the

provisions of the Punjab Act and the various authorities of the Punjab High Court, came to the conclusion that any acquisition made by the vendee

at any time after the sale which is sought to be preempted whether before or after the suit, cannot be set up by him to defeat the right of prior

purchase accruing on the date of the sale. Priority, according to their Lordships, is to be determined with reference to the date of the sale and not

with reference to the date of the institution or the decision of a suit for pre-emption subsequently brought by one of the claimants. The learned

Counsel has further agrued that u/s 71 of the Constitution of Jammu and Kashmir of 1996, His Highness had the power to appoint a Board of

Judicial Advisers for disposal of such civil and criminal appeals as may under the law for the time being in force, lie to His Highness from the

decisions(sic) of the High Court, and on such other matters as His Highness may choose to refer to such Board for advice. Under this section of

the Constitution, an Act No. XVI of 1996 was enacted which was called ""Appeals to His Highness Act, 1996."" Section 17 of this Act lays down

that.

The final orders of His Highness passed on a civil or criminal appeal shall be communicated to the High Court and it shall be the duty of the High

Court and all subordinate courts and all authorities in the State to carry out such orders of His Highness.

The opinion of the Board having been accepted by the His Highness as indicated above, is binding on the High Court and cannot be questioned

now under this provision. A further argument was suggested by my brother Hon'ble Jaswant Singh, J. that this decision received the assent of the

His Highness and therefore, became law of the land u/s 5 of the Constitution of 1996 and u/s 157 of the J and K Constitution of 1957, and shall be

deemed to be in vogue even at the present moment also. Section 5 of the 1996 Constitution among other things states that all powers, legislative,

executive and judicial in relation to the State and its Government are hereby declared to be and to have always been inherent in and possessed and

retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right or prerogative of His

Highness to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority. Section 157 of the Constitution of

Jammu and Kashmir 1957 repeals Constitution Act 1996 (i.e. Act No. XIV of 1996) but at the same time states:

Notwithstanding the repeal of the said Act but subject to other provisions of this Constitution, all the laws in force in the State immediately before

the commencement of this Constitution shall continue in force until altered or repealed or amended by competent authority.

Sub-section (3) of this Section keeps in force all notifications published, proclamations issued powers conferred... until repealed or modified

either expressly or by implication by competent authority. As would appear this argument is two-fold:

(1) whether this High Court is competent to set aside and ignore any decision of the Board of Judicial Advisers and secondly whether the

acceptance of the advice in the case, Dharam Singh v. Sita Ram (Supra), would amount to an order promulgated by the His Highness the

Maharaja Bahadur under his inherent powers u/s 5 of the Constitution Act of 1996 which amounts to law and would be binding for all time to

come. The second argument need not detain us because Sub-sections (2) and (3) of Section 157 of the Constitution of Jammu and Kashmir, 1957

expressly lays down that if any such law or order which had the force of law also is repealed directly or by necessary implication to that extent it

will cease to have any force. The acceptance of the advice of the Board of Judicial Advisers by His Highness would not be tantamount to His

passing or promulgating any law, but would at best be an interpretation of the provisions of some law in this case the Right of Prior Purchase Act.

Even otherwise in the present case the competent legislature of the State has passed the Amending Act No. XXIII of 1959. Therefore this

Amending Act will supersede the previous laws in force in the State whether they were in the shape of statutory legislation or any command,

proclamation or Pharman issued by His Highness the Maharaja. Therefore if this Amending Act gives any protection to the vendees, the previous

state of law as laid down by His Highness in accepting the advice of the Board of judicial Advisers will stand repealed to the extent it is inconsistent

with the Amending Act.

The other proposition whether this High Court is competent to ignore the decision of the Board of Judicial Advisers has already come for

consideration before the Full Bench of this Court in a case reported as AIR 1965 J and K 62 (FB) Master Sewanath v. Faquir Chand, wherein it

has been held that the view of the Board of Judicial Advisers has been overruled by the Supreme Court in Bishan Singh and Others Vs. Khazan

Singh and Another, . The authorities that were referred to at that time in support of the proposition have been discussed and considered in that

case. Under Article 141 of the Constitution of India, the law laid down by the Supreme Court shall be the law of the land. If there is any authority

on the interpretation of any legal enactment whether by the Privy Council or by any other authority, whicn is contrary to the interpretation put by

the Supreme Court on the same provisions of law, the Supreme Court view will prevail. It is a very well settled principle that all courts in India are

bound to follow the decisions of the Supreme Court even though they are Contrary to the decisions of the House of Lords or of the Privy Council.

See Commissioner of Income Tax, Bombay City Vs. Shirinbai K. Kooka, and Punjabai v. Shamrao AIR 1955 Nag 293.

Therefore the point for determination as far as this controversy is concerned, is whether the authority of the Board of Judicial Advisers has

been overruled by the Supreme Court or not. The matter decided by the Board of Judicial Advisers is that the rights of the parties in a suit for pre-

emption shall be determined on the ate of sale. The vendee cannot on any acquisition made subsequent to the sale defeat the right of pre-emptor

which existed on the date of sale. There is not one authority of the Supreme Court to the contrary but many of them as shall be presently stated. It

is no doubt true that there has not been uniformity of opinion as to the fact whether the vendee can improve his title after the sale; more so after the

institution of the suit to defeat the claims of the pre-emptor who had a better or preferential right as against the vendee on the date of the sale. In

Punjab there have been conflicting decisions on this point. Some times large Benches of the Punjab High Court had to be constituted to consider

this question and contradictory views have been held by different Benches constituted at different times. All the authorities need not be again

reiterated in this judgment because that is not necessary. Only a few may be mentioned. But before mentioning the authorities it is important to note

that when there was so much of conflict on this point amongst the various learned Judges of the Punjab High Court, the Punjab Legislature was

driven to the necessity of passing Act No. 1 of 1944 which declared that any acquisition made by the vendee during the pendency of the suit

cannot deprive the pre-emptor of the right vested in him on the date of the suit. After this amendment the law, so far as Punjab was concerned,

was set at rest. The date of the suit became the determining factor in Punjab. The rights of pre-emptor and vendee should be determined on the

date of the suit and no subsequent acquisition of a better title by the vendee would help him.

The promulgation of this Punjab Act also has given rise to two interpretations before us; one is that there being no such law enacted here, the

presumption is that the matter is open and the vendee can improve his position even during the pendency of the suit. The other argument advanced

is based on the same argument. His Highness having accepted the opinion of Board of Judicial Advisers and it is that even after the Punjab

Amending Act, His Highness chose. through the Board of Judicial Advisers to take the view that the date of sale was the only crucial date to

determine the relative rights of the pre-emptor and the vendee cannot improve his title at any time after the sale. The latter argument has already

been repelled by me and in my opinion the former argument strengthens the case of the vendee rather than the case against him that is even after

the Punjab Act was enacted, the legislature in this State did not think it necessary to bring the law of the State in line with the Punjab law. It may be

mentioned here that the State's Right of Prior Purchase is based on the Punjab Pre-emption Act Therefore, by implication the legislature conceded

that the vendee should be able to improve his position even after the sale and during the pendency of the suit.

Some of the authorities which lay down that the vendee cannot improve his title after the institution of the suit are 41 Ind Cas 909 : AIR 1917

Oudh 390, 1909 Pun Re 91 : 4 Ind Cas 337 (FB). In the last Full Bench case, Robertson and Rattingan, JJ. took a contrary view. On the other

hand there are authorities which clearly hold that the vendee can improve his title upto the date of the decree. They are: Hans Nath v. Ragho

Pershad Singh, AIR 1932 PC 57 ; AIR 1944 Lah 172 (FB); (1899) ILR 21 All 441, Gopichand and Prabhu Dayal Vs. Meenalal, , AIR 1924 All

82, AIR 1966 Punj 374 (FB), AIR 1941 Lah 433 (FB). These authorities say that upto the decree by the first court, the vendee can improve his

status and defeat the right of the pre-emptor. There are authorities which have gone even further than this, for instance AIR 1954 Raj 231 wherein

it has been held that the right of the pre-emptor cannot only be defeated upto the decree of the trial court but even after the case is finally decided

by the appellate courts. I have so far only mentioned the authorities of the different High Courts. In this High Court in the following authorities AIR

1962 J and K 79, AIR 1960 J and K 112 and AIR 1965 J and K 62 (FB) it has been held that the pre-emptor must possess the superior right at

three definite stages (i) on the date of sale (ii) on the date of the institution of the suit; and (iii) on the date of the decree. If the pre-emptor at any

time before all the three stages are over loses his right of pre-emption or the vendee gets an equal or a superior light to that of the pre-emptor, the

pre-emptor's suit must fail.

In AIR 1954 Raj 231, Wanchoo, Chief Justice as he then was discussing this aspect of the question states in para 4 of the judgment as under:

The next question is whether the invalidity of the law in any way affects the decree which has been passed in this case. The contention on behalf of

the Respondent is that even if the law became invaild from 26-1-1950 the sale, out of which the right of pre-emption arose, took place long

before, and the provisions of the Constitution cannot be given retrospective effect. The sale in this case took place on 24-9-1946. The suit was

filed on 12-9-1947 while the decree was passed on 6-7-1951. It is argued on behalf of the Appellant that the peculiar feature of pre-emption law

is that the right of pre-emption must exist on all the three following dates, namely, (i) the date of sale, (ii) the date of suit, and (iii) the date of

decree, and that if the right does not exist on any one of these dates, a decree for pre-emption cannot be passed. Learned Counsel for the

Appellant, therefore urges that as the law became invalid on 26-1-1950, and there was no right in any one to claim pre-emption of this kind after

26-1-1950, no decree for pre-emption could be passed in favour of the Respondent in July, 1951. It is further urged that by giving effect to this

principle the court would, not be applying the Constitution retrospectively.

In para 5, his Lordship categorically laid down that the law is well settled that the pre-emptor must have a subsisting right of pre-emption on all the

three following dates, namely (i) the date of sale (ii) the date of institution, (iii) the date of the decree. Then his Lordship discussing various

authorities of different High Courts went further and stated that the right must not be lost even during an appeal.

The Supreme Court in the case reported in Amir Singh and Another Vs. Ram Singh and Others, has held at pages 891 and 892 that:

It is however urged that the law of preemption requires that the pre-emptor must possess the right of pre-emptor at the date of the sale, at the date

of the suit and at the date of the decree. This proposition cannot be disputed.

So their Lordships have clearly indicated in this authority that the pre-emptor must possess the right in the words of Wanchoo, C.J. at three

crucial points of time i.e. at the time of the sale, on the date of the institution of the suit, and on the date of the decree. This authority was pointed

out by my learned brother Honble Jaswant Singh, J. It dealt with the retrospective operation of the provisions of the Punjab Pre-emption

Amendment Act or 1960. In that suit, as in the present suit the right of pre-emption was created in the tenants of agricultural land and village

immovable property in the year 1960. The land had been sold on May 31, 1956. It was only when the case was finally before the Supreme Court

that this Amending Act of 1960 was promulgated. Section 31 of that Amending Act laid down that no court shall pass a decree in a suit for pre-

emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act 1960 which is inconsistent with the

provision of the said Act. It was argued before their Lordships of the Supreme Court that as that Act came into force after the suit was decreed

and it was only when by special leave an appeal was filed before the Supreme Court, the Amending Act came into force, the benefit of the

Amending Act could not be given to the tenants; but their Lordships rejected the contention and on the basis of Section 31 of the Amending Act of

1960 held that the suit could not be decreed because of that provision although it had been decreed much before that Act came into force. This

authority was sought to be interpreted in favour of the proposition that as the present Amending Act i.e. Act No. XXIII of 1959 has not such

retrospective operation, the vendees, who according to both the courts below are the tenants cannot defeat the right of the Appellants who are the

heirs of the erstwhile vendors. As already indicated this very authority has very clearly laid down that the pre-emptor must possess the superior

qualification even up to the date of the decree. Therefore the other argument need not detain us but a further argument can be advanced in favour

of the Respondents in that their Lordships of the Supreme Court were considering the provisions of Section 31 of the Amending Act. The point of

law which is before us at the present moment was not for consideration before their Lordships although as already pointed out they have expressed

a clear opinion on that point also when they said that the pre-emptor must possess the right to pre-empt at the time of the sale, on the date of the

institution of the suit and on the date of the decree, cannot be disputed.

In Bishan Singh and Others Vs. Khazan Singh and Another, their Lordships have summarized the position thus at p. 841, para 11 that:

(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: 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 repurchase i.e. the pre-emptor takes the enitire(sic) 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(sic) 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(sic) can be defeated by all legitimate methods, much(sic) as the vendee allowing the claimant of a superior

or equal right being substituted (sic)in his place.

Their Lordships have held that this is a weak right, the pre-emptor must have a superior right to that of the vendee and what is more important is

that the vendee can defeat the right of the pre-emptor by all legitimate methods. This case was sought to be distinguished from the present case by

my brother Hon'ble Gurtoo, J. on the ground that in that case the vendee was substituted by another person who had in himself an inherent right of

pre-empting the sale which right even at the date of the sale and institution of the suit was superior to that of the pre-emptor. Therefore the

substitution of this particular person by the vendee got the suit of the Defendant pre-emptor defeated. In this case, according to the learned

Counsel for the Appellant, the present vendee has not been substituted by anybody and he had no superior right to that of the pre-emptor on the

date of the sale or on the date of the institution of the suit. But personally speaking I do not subscribe to this view. The right to get the property in

preference to the vendee although an inchoate one up to the date of the decision of the first court, comes into existence effectively with a decree in

his favour and even that may not entitle him to the property, as stated by Plowden, J. in Dhani Nath v. Budhu, 136 Pun Re 1894. He does not

become an owner of the same until payment but entitles him to get the property on compliance with the conditions stated in the decree. At the most

the right to get the property in a pre-emption suit is declared by the decree for pre-emption. In the authority referred to above i.e. Bishan Singh

and Others Vs. Khazan Singh and Another, their Lordships have held on the basis of Deokinandan v. Sri Ram (1870) ILR 12 All 234 (FB) 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 posses(sic)

In the sixth proposition laid down by their Lordships reproduced above, their Lordships used the expression that the right being a very weak

right it can be defeated by all legitimate rights such as vendee allowing the claimant of a superior or equal right being substituted in his place. A

rational interpretation of this proposition shows that the substitution of a person having superior or equal right is by way of an illustration which is

not the only-circumstance envisaged by their Lordships in which and by means of which the right of the pre-emptor can be defeated. The words

such as"" are significant. The illustration suggested is not exhaustive. All that is required is that the methods adopted to defeat the right of the pre-

emptor must be legitimate. I may in me passing here refer to a Full Bench authority reported as AIR 1966 Punj 374 (FB). There a notification

taking away the right of pre-emption was passed after the decree of the trial Court. Their Lordships held that:

Where a pre-emptor has established his preferential right to pre-empt a sale and a pre-emption decree has been passed in his favour by the first

court, it is not necessary that he should retain that superior right of pre-emption till the hearing of the appeal preferred by the vendee against the

decree. When a pre-emption decree is passed by the first Court the right of pre-emption becomes a vested right which can only be taken away

from the pre-emptor decree holder by retrospective legislation. Therefore where during the pendency of the appeal against a pre-emption decree,

a notification u/s 8(2) was issued by the Punjab Government exempting the sale, with respect to which the decree was passed, from the right of

pre-emption the notification could not have retrospective effect.

In that case their Lordships held that the subsequent notification passed after the decree was passed could not take away the right of the pre-

emptor. Obviously this judgment leads to the inevitable conclusion that if the notification depriving the pre-emptor of his right was passed before

the decree of the trial court was passed his suit should and could be defeated.

In another authority reported as Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, their Lordships have

reiterated the same stand and on page 1372 they have laid down:

...The right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the

right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by

all legitimate means. In the Punjab where the right of pre-emption is also statutory, the courts have not looked with disfavour at the attempts of the

vendor and the vendee to avoid the accrual of right of pre-emption by any lawful means and this view has been accepted by this Court....

Therefore in accordance with the authorities quoted above, I come to the conclusion that the vendee has the right to improve his status in any

legitimate manner upto the date of the decree. It may be mentioned here that in this case the amendment came while the suits were pending in the

trial court.

The argument of the learned Counsel for the Appellants is that the Amending Act of 1959 nowhere lays down that it has retrospective effect

therefore the Act will be considered to be prospective and not retrospective. His further argument is that this Act affects the substantial rights of the

parties and cannot be deemed to be retrospective in operation. In this matter he has referred to a Full Bench authority of this Court reported as

1967 Kash L. J. 83 : AIR 1967 J. and K. 44 (FB) which lays down:

It is well settled that there is no presumption that a law which is passed by the legislature is retrospective in effect, nor is there any presumption that

when a law comes into force, while certain proceedings are pending, it would apply to such proceedings unless the law happens to fall within the

ambit of procedural law and changes merely the procedure without touching existing rights.

Besides this authority there are numerous authorities for the proposition that any amendment in substantive law is not retrospective unless

expressly laid down or by necessary implication inferred. Procedural laws are always retrospective in operation. But I would add that the law of

pre-emption is a special law. We have to keep in mind the basic principles which have been evolved by various courts while interpreting this law.

According to me if we accept the test that a pre-emptor must retain his right upto the date of decree, then obviously if any legislation is passed by

any competent legislature, which deprives the pre-emptor of continuing with his suit or defeats his suit, it has to be applied to his case. It would be

anomalous that a vendee can defeat the right of the pre-emptor by his own acts for instance by acquiring an equal right with the vendee during the

pendency of the suit by means of acquisition of some property or by transferring the property to some other person having equal or superior right

with the pre-emptor but he cannot avail of an improvement in his status to defeat the right of the pre-emptor if that improvement is conferred upon

him not by any private act of an individual or individuals but by legislature. In the former case it might be argued that the acquisition or transfers are

mainly fictitious and manoeuvred but in the latter case when the status of the vendee is unproved by an act of the legislature no such argument can

be possibly advanced. In my opinion the vendee stands on a firmer footing if the legislature confers upon him a better title than he had before to be

able to defeat the rights of the pre-emptor than he had if he had to take resort to other actions either his own or somebody else's to improve his

status. The basic test according to me is ill the pre-emptor can be defeated upto the date of the decree by any legitimate method or by the status of

the vendee being improved, the same can be achieved by an act of a private individual or by any statutory provision of any legislation. In this case

when the suits were still pending in the trial court the amendment came in the form of Amending Section 14 of the Right of Prior Purchase Act by

means of an Act No. XXIII of 1959. The vendees had a better or a complete answer to the suits of the Plaintiffs. The amendment was introduced

to permit the tenant to enjoy the fruit of his labour against a contingent owner, who simply by fiction of law would be entided to the land after the

death of its present owner, the vendor.

The two questions referred to the Full Court must in my opinion be answered in the affirmative.

As only two points of law were referred to the Full Court, the cases will go back to the Bench seized of the cases for disposal of the appeals on

their merits.

S.M. Fazl Ali, C.J.

I agree with the lucid and elaborate judgment prepared by my brother Bhat, J. but would like to add a few lines of my own to further the

elucidation of some of the points touched by Bhat J.

The main question for determination in the instant case is whether or not the amendment is retrospective in operation so as to confer a superior

right on the vendee Defendant resulting in the extinguishment of the right of pre-emption claimed by the Plaintiff. It is not disputed before us that the

amendment does confer such a right on the vendee, but the question is whether or not the Defendant can take advantage of the right conferred by

the amendment so as to defeat the right of the Plaintiff. It is well settled that any statute creating or affecting a substantive right cannot be presumed

to be retrospective in operation unless such an intention is gathered from the statute either expressly or by necessary intendment. In the intant case

the amendment does not appear to be retrospective in its operation but it is a debatable question as to whether a right of pre-emption can be said

to be a substantive right at all. At any rate before considering the question ol the application of the amendment to the facts or the present case it

may be necessary to describe the nature and the incidents of a right of pre-emption. From a long course of decisions of various High Courts which

have been quoted by my learned brother in his judgment and which have been endorsed by the Supreme Court in Bishan Singh and Others Vs.

Khazan Singh and Another, and (1963) 3 SCR 884 as also by the Privy Council in Hans Nath v. Ragho Pershad Singh, AIR 1932 PC 57 the

legal incidents of a right of pre-emption appear to be as follows:

(1) That a right of pre-emption is not a right of purchase but one of substitution and is therefore a weak right.

(2) That since such a right amounts to a clog on the doctrine of freedom of purchase, the courts have looked upon the right with extreme disfavour

and have therefore allowed it to be defeated by any legitimate means.

(3) The right is an extremely precarious, inchoate and an incomplete right inasmuch as it has to exist on three dates, namely, the date of the sale, the

date of the suit and the date of the decree. Their Lordships of the Privy Council in Hans Nath v. Ragho Pershad Singh, AIR 1932 PC 57 while

reviewing the Allahabad and other authorities have clearly found that the decisive date of the pre-emptor is the date of the decree. In that case their

Lordships observed as follows:

It is not suggested that either of these decisions has been dissented from in principle in the Allahabad court, on the contrary the doctrine that the

Plaintiffs preferential right must be in existence at the date of the decree has been treated as the settled law of the province.

X X X X X

If this object would be attained by a decree in favour of the Plaintiff pre-emptor it may not unreasonably be held that such a decree should not be

passed. In the present case it is not now contested that the Respondent was at the time when the Appellant's suits stood for adjudication a co-

sharer in the villages and no decree which might have been passed in their favour could deprive him of his status as such. If the acquisition by him

of his share after the preemption sale but before the suit was instituted would be effective to defeat the Appellant's claim as it is admitted that it

would, their Lordships think it difficult to see why the same reasoning should not be applicable in the case of a share acquired at any time before

the adjudication of the suit.

The view expressed by the Privy council has been completely endorsed by the Supreme Court in Amir Singh and Another Vs. Ram Singh and

Others, at pp. 891-92. It follows therefore that the claim for pre-emption does not ripen into a perfect title so long as it does not cross all the three

stages mentioned above. In other words the right may be suitably compared to a child conceived in a mother's womb under the general law just as

a child after conception develops and grows into a full baby in the mother's womb but has no legal existence until it is actually born alive, similarly

the right of pre-emption acquires a legal existence and matures into a full-fledged right only when it subsists till the date of the decree. If however

anything is done to defeat the said right before the date of the decree, the right loses its existence and becomes as it were a still-born child. This

being one of the peculiar incidents of the right of pre-emption it is manifest that such a rignt is conditioned and controlled by circumstances which

might intervene during the suit and before the decree, e.g., acquisition of a superior or equal right by a vendee or non-payment of the purchase

morifey by the pre-emptor etc. Furthermore the peculiar language of the amendment and the particular form in which it has been cast is as follows:

For Section 14 of the Jammu and Kashmir Right of Prior Purchase Act, 1923 (hereinafter referred to as the 'said Act' the following shall be

substituted namely:

Persons in whom right of prior purchase vests in respect of sale of Agricultural Land and village immovable property- Notwithstanding anything

contained in any law, rule or custom but subject to the provisions of Section 13, the right of prior purchase in respect of agricultural land and village

immovable property shall vest, Firstly in the tenant cultivating such land where the sale is of agricultural land and in the tenant occupant thereof

where the sale is of village immovable property, and second in the persons in order or succession who but for such sale would be entitled on the

death of the vendor or vendee, to inherit the land or property sold.

The intention of the amendment appears to be that the words of the amendment should be read into the words of the original statute with the same

pen and ink. This particular rule of interpretation applies to the present amendment. I am fortified in my view by a decision of the Supreme Court in

Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and Others, where their Lordships observed as under:

The rule is that where a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself, into the earlier then the

earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered

words had been written into the earlier Act with pen and ink and the old words scored out so that Thereafter there is no need to refer to the

amending Act at all.

Finally if a right of pre-emption can be defeated by a Defendant vendee by improving his title or acquiring a superior right by an act inter vivos even

after the suit is filed but before a decree is passed I do not see any reason why the same end cannot be achieved by the vendee Defendant through

operation of law which is passed during the pendency of the suit but before a decree is passed. The question in such cases is not that the Act is

retrospective, but it resolves itself to the fact that the Act having been passed prevents the claim of pre-emption from ripening into a full-fledged

right with the result that the right thus dies a natural death because the vendee has acquired a superior right by operation of law. Thus when a claim

of pre-emption is in the nature of a right which depends for its existence on circumstances beginning from the date of the suit to the date of the

decree a court would have to adjudicate upon such a right in accordance with the law in force at the time when the decree is being passed. What

has happened in the instant case is that the amendment has prevented the claim of the Plaintiff from growing into a perfected right by conferring a

superior right on the vendee Defendant before a decree could be passed in the suit. Since the Plaintiff has to show a subsisting right till the decree is

passed he cannot be heard to say that the amendment should be completely ignored and the Plaintiff's claim should not be allowed to be defeated

although the vendee has acquired a superior right under the Act. Such a stand is directly opposed to the principles elucidated above, one of which

is that the right of pre-emption can be legitimately defeated by any means which includes operation of law also.

For these reasons, therefore I find myself in complete agreement with the view taken by my learned brother Bhat J. that the amendment having

conferred a superior right on the vendee Defendant, the Plaintiff's claim of pre-emption stands defeated because it is estopped from growing into a

full-fledged right which may be enforceable at law.

My brother Jaswant Singh J. has relied upon Amir Singh and Another Vs. Ram Singh and Others, in order to hold that the Act would nave no

retrospective operation. With very great deference to my learned brother, I am unable to subscribe to his view. In the first place the case before

their Lordships of the Supreme Court dealt with a statute which was made expressly retrospective by the legislature. By virtue of the express

provisions of the Act, the right of pre-emption could not be defeated by the vendee even if he had improved his tide. The converse however,

cannot apply to the present case because the statute does not take away the right of pre-emption which does not mature into a full-fledged right

until the decree is passed. Further more in the present case the amendment has only conferred an additional right on the vendee Defendant and has

thus enabled him to improve his title before the decree in the suit could be passed. In these circumstances therefore the case relied upon by my

learned brother Jaswant Singh J. is clearly distinguishable.

Another subsidiary point that was argued before us was regarding the effect of the decision of the Board of Judicial Advisers in 3 J and K LR

My brother Bhat J. has given cogent reasons for holding that this view is not binding on this Court and stands overruled by the Supreme

Court in Bishan Singh and Others Vs. Khazan Singh and Another, as also by a previous decision of this Court in AIR 1965 J. and K. 62 (FB). I

am unable to regard the decision of the Board of Judicial Advisers as a piece of legislation which cannot even be overruled by the Supreme Court

and could not attract the operation of Article 141 of the Constitution of India. Even if the said authority of the Board of Judicial Advisers be given

some of a statutory force, since it directly contravenes the pronouncement of the Supreme Court, it must yield to the decision of the Supreme

Court. For instances if a law is made by the legislature which according to the exposition of the Supreme Court is hit by Article 14 of the

Constitution of India, can it be said with any show of force that the law would still be good law merely because it has been passed by the

legislature or by His Highness the Maharaja. In my opinion the decision of the Board of Judicial Advisers is merely an interpretation of law which

has been accepted by His Highness the Maharaja Bahadur, but if it is held to be no longer good law in view of the pronouncement of the Supreme

Court, the saia law loses its statutory force and cannot be said to be binding on this Court which has to follow the mandate of the Supreme Court

under Article 141 of the Constitution of India.

Since the Division Bench which referred this case has not decided all the points, we would send back the case to the Division Bench for

decision on merits after deciding the question of law in the following manner:

(1) That if the Defendant vendee is proved to be an actual tenant cultivating the land he is entitled to the benefit of the amendment and acquires a

right superior to that of the Plaintiff so as to defeat the right of pre-emption claimed by the Plaintiff.

(2) That in view of the decision of the Supreme Court (supra) the view taken by the Board of Judicial Advisers is no longer good law. There will

be no order as to costs.

Jaswant Singh, J.

I have had the advantage of going through the judgment prepared by my learned brother Hon'ble Bhat J. as also the elucidatory observations made

by my Lord the Hon'ble Chief Justice, but with great respect I find myself unable to agree with the view expressed by them.

The facts leading to this reference are given in the judgment of Hon'ble Bhat J. and need not be recapitulated in any great detail, suffice it to say

that suits Nos. 64 of 1958 and 30 of 1959 instituted by Syed Siraj-ul Din v. K Siraj-ul-Din and Syed Ahmed Shah Appellants herein, for

possession of certain parcels of land described in the petitions of plaints of the said suits, on the ground of their statutory right of prior purchase u/s

14(a) of Jammu and Kashmir Right of Prior Purchase Act, 1993 i.e. on the basis of their being agnates of Syed Ahmed Shah and Syed

Mohammad Shah vendors, having been dismissed by the Munsiff, Badgam, on the ground that the Defendants who are the tenants of the land in

dispute had acquired superior right of purchase during the pendency of the suit by virtue of Act No. XXIII of 1959 and the findings having been

affirmed by the District Judge, Srinagar, the Appellants came up in second appeal to this Court.

S.M. Fazl Ali, J.

(as his Lordship then was) called for certain findings from the District Judge Srinagar vide his order dated 29th September 1966. After the

receipt of the findings from the District Judge, Srinagar and hearing the matter further, his Lordship vide his order dated 27th October 1966,

referred the cases to a division bench for determination of the question as to whether the amendment of 1959, which conferred right of pre-

emption on the tenants during the pendency of the suits, out of which the present appeals have arisen, had a retrospective operation. The Division

Bench before which the matter was thus placed considering that the appeals raised important issues referred the following two questions for

consideration of a Full Bench to be constituted by the Hon'ble Chief Justice.

(1) Whether or not a Defendant can by improving his title during the pendency of a suit defeat the right or pre-emption?

(2) If a statute is passed during the endency of a suit for pre-emption giving a etter and superior right to the Defendant vendee, whether such a right

can be utilized by the vendee in order to defeat the right of pre-emption where the Act is not specifically retrospective? The Hon'ble Chief Justice,

has accordingly constituted special bench of Five Judges for the decision of these questions.

The learned Counsel for the Appellants has contended that a vendee cannot according to law obtaining in the State improve his status after the

date of the suit and the provisions of Section 14 of the Prior Purchase Act, as amended by Act No. XXIII of 1959, not having been given a

retrospective operation by the legislature, and the sales in question having been effected before 26th October 1959 i.e., before the coming into

force of Act No. XXIII of 1959, the suits ought to have been decreed by the courts below.

The learned Counsel has further contended that the rights of the parties had to be determined with reference to the position existing on the

dates of the sales in question and not with reference to the dates of the institution of the suits for pre-emption or at any time subsequent thereto.

36a. He has in support of his contention relied on a ruling of His Highness Board of Judicial Advisers reported in 3 J and K LR 210, in which it has

been laid down:

The acquisition made by the vendee at any time after the sale which is sought to be pre-empted whether before or after the suit, cannot be set up

by him to defeat the right of prior purchase accruing on the date of sale.

Priority is to be determined with reference to the date of the sale and not with reference to the date of the institution or the decision of a suit for

pre-emption subsequently brought by one of the claimants AIR 1941 Lahore, 433 (FB) dissented to."" He has further contended that the advice

tendered by the Board of the Judicial Advisers having been accepted by His Highness and His Highness having commanded that action in

accordance therewith be taken the said ruling had acquired the force of law by virtue of the provisions contained in Section 4 of the Sri Partap

Consolidation Act which runs as follows:

4(1) The laws administered and to be administered by the Civil and Criminal Courts of the State of Jammu and Kashmir and shall be as follows:

(a) xx xx xx xx

(b) Orders, Hidayats, Ailans, Notifications, Ishtihars, Circulars, Robkars, Irshads, Yaddashts, State of Council Resolutions, Rules, Proclamations

and Ordinances issued, passed, published or made by or under the authority of His Highness or by any other competent authority empowered to

make and promulgate laws for the time being.

(c) The rules having the force of law made and promulgated under the provisions of any Act or law for the time being in force in the State of

Jammu and Kashmir.

He has further urged that Act No. XXIII of 1959, not having been given a retrospective operation, the right of the Plaintiffs pre- emptors could not

in any event be defeated by the Defendants, though they may be the tenants of the land in dispute.

The learned Counsel for the Respondent has on the other hand, urged that the right of prior purchase could according to the ruling of the

Supreme Court contained in Bishan Singh and Others Vs. Khazan Singh and Another, , be defeated by all legitimate means including legislative

enactment up to the date df the decree. He has further argued that the Act No. XXIII of 1959 must by necessary intendment be deemed to be

retrospective in effect. I have given my careful consideration to the rival contentions of the learned Counsel for the parties and I am of the opinion

that the submissions made by the learned Counsel for the Appellants being well founded must prevail. The question of right of a vendee to improve

his status after the date of impugned sale having been subject of conflicting views by the Judges of the Chief Court and the High Court of Punjab,

(See 91 PR 1909 (FB) and AIR 1941 Lahore 433 (FB), the Legislature thought it fit to step in and set the matter at rest by enacting Section 21A

in 1944, which runs as follows:

Any improvement otherwise than through inheritance or succession made in the status of a vendee Defendant after the institution of a suit for pre-

emption shall not affect the right of the pre-emptor Plaintiff in such suit.

According to the above provision, no improvement otherwise than through inheritance or succession made in status of a vendee Defendant, after

the institution of suit for pre-emption can defeat the right of the pre-emptor Plaintiff in such suit. What was sought to be achieved in Punjab by the

insertion of Section 21A in the Punjab Pre-emption Act (Act No. 1 of 1913) by Act No. 1 of 1944 which came into force on 29-5-1944 was

achieved about the same time in the State by His Highness's command accepting the advice tendered by the Board of Judicial Advisors in 3 J and

K LR 210 (supra). The command order which in effect ordained that the priority must be determined with reference to the date of sale and not

with reference to the date of institution or the decision of a suit for preemption subsequently brought by one of the claimants became the law of the

land in the same way as any other law by virtue of Section 4(1)(b) of the Sri Partap Jammu and Kashmir Laws Consolidation Act, 1977

reproduced above.

Further the order of the Ruler of our State who was an absolute sovereign could not but be regarded as a law. He was the Supreme

Legislature, the Supreme Judiciary, and the Supreme Head of the executive and there were no constitutional limitations upon his authority. His

commands were binding in the same way as any other law and they could override all other laws which were in conflict with them. I am fortified in

this view by a catena of decisions; three out of which are of their Lordships of the Supreme Court: Ammeer Unnisa Begum v. Mahboob Begum,

AIR SC 352, Director of Endowment Government of Hyderabad v. Akramali AIR SC 60 and Sarwarlal and Others Vs. The State of Hyderabad,

. It will be advantageous at this stage to refer to the following observations made by their Lordships of the Supreme Court in Director of

Endowments, Government of Hyderabad and Others Vs. Akram Ali, .

Now the Nizam was an absolute sovereign regarding all domestic matters at that time and his word was law. It does not matter whether this be

called legislation or an executive act or a judicial determination because there is in fact no clear cut dividing line between the various functions of an

absolute ruler whose will is law. Whatever he proclaimed through his Farmans had the combined effect of law and the decree of a court.

This aspect of the case with utmost deference does not seem to have been gone into by the Full Bench in AIR 1965 J. and K. 62, as would

appear from the following observations:

This controversy is more or less academic because the majority view on this subject finds support from a Supreme Court authority reported as

Bishan Singh and Others Vs. Khazan Singh and Another, .

Thus according to His Highness's command which has the force of law in the State, the date of sale is decisive and has to be regarded as a

determining factor in all the suits for pre-emption brought in the State and the rights of the pre-emptor and the vendee have to be considered and

determined with reference to the state of affairs existing on the said date. I am, therefore clearly of the opinion that according to law obtaining in the

State a vendee cannot improve his position after the date of sale so as to defeat the right of prior purchase of the Plaintiff. The answer to the first

question must, therefore, be in the negative.

I must pass on to the next question that has been referred for decision to the Full Bench namely whether the amendment brought about in

Section 14 of the Right of Prior Purchase Act by Amending Act No. XXIII of 1959, which gave a priority to a tenant over an agnate and a co-

sharer has retrospective effect.

A close scrutiny of the provisions of the Amending Act would show that there is nothing in the said Act which ordains that the amendment should

be given a retrospective effect. A reference to Section 14 of the Right of Prior Purchase Act 1993, as it stood before the Amendment Act No.

XXIII of 1959 would show that the right of prior purchase in respect of agricultural land and village immovable property where the sale was by the

sole owner or occupancy tenant or in case of land or property jointly owned or held by all co-sharers jointly vested in the persons in order of

succession who but for such sale would be entitled on the death of the vendor or vendees to inherit the land or property sold. The Amending Act

does not contain any words to show that right which had been vested in the pre-emptor has been divested with retrospective effect. It will further

be noticed that the Amendment Act No. XXIII of 1959 does not contain any provision corresponding to Section 31 introduced by the Punjab

Pre-emption (Amendment) Act, 1960 (No. 10 of 1960) in the parent Act of Preemption (No. 1 of 1913). If the legislature had intended to take

away the right that had already been created in favour of a co- sharer or an agnate as stated above, it would have also enacted a provision similar

to Section 31 introduced bv the Punjab Amendment Act 1960 which gave retrospective effect to Section 15 as newly inserted in Punjab. The

obvious inference is that the rights of the parties as they existed on the date of sale have been left unaffected. This view receives support from the

observations of their Lordships in Amir Singh and Another Vs. Ram Singh and Others, .

Their Lordships' decision in that case was based mainly on the ground that Section 31 as introduced by the Amending Act of 1960 gave

retrospective effect to the amended Section 15. This ruling which has been pressed into service by my learned brother Hon'ble Bhat J. in support

of his views does not, with utmost deference to the learned Judge support the proposition adumbrated by him. It rather lends support to the

contention of the learned Counsel for the Appellant. If the Act is not retrospective in operation, it is difficult to see how the right which has already

vested in an agnate could be divested and superseded by a tenant who had no right of pre-emption at the date of the sale.

I would, therefore answer the second question also in the negative. Let the files now go to the bench concerned for decision of the appeals on

merits in the light of the answers given above.

Anant Singh, J.

I have had the advantage of reading the judgments prepared by the other Hon'ble Judges, including Hon'ble the Chief Justice.

The facts leading to the constitution of the Special Bench, and the questions involved for consideration by it have been set out in detail by

Hon'ble Mr. Justice Bhat.

The Plaintiffs in the two suits filed their suits, one on 11-9-1958 and the other on 10-6-1958 seeking to enforce their right of pre-emption in

respect of certain parcels of agricultural land purchased by tenants Defendants. The two Plaintiffs in the two suits are heirs of the two vendors,

Ahad Shah, and Syed Mohd. Shah. It was after the two suits were filed that an Amending Act XXIII of 1959 came into force with effect from 26-

10-1959 whereby u/s 14(a) of the Jammu and Kashmir Right of Prior Purchase Act, 1993 the tenant has been put in the category of the superior-

most pre-emptor, and, therefore the tenants Defendants in the two suits would seek to improve their right as against the Plaintiffs pre-emptors.

The two questions that fall for our consideration:

(1) Whether or not a Defendant can by improving his title during the pendency of the suit defeat the right or pre-emption?

(2) If a statute is passed during the pendency of the suit for pre-emption giving a better superior right to the Defendant vendee, whether such a

right-can be utilized by a vendee in order to defeat the right of preemption where the Act is not specifically retrospective?

Having carefully gone through the Amending Act, I am inclined to think that this Act, which came into force with effect from 26-10-1959, after

the institution of the present two suits by the Plaintiffs has not been made retrospective in effect even by any implication and therefore, cannot

govern the present suits. The law is well settled that unless any substantive law, as in the present case is made retrospective either in terms or by

necessary implications, it is always prospective. The Punjab Preemption Amendment Act No. 10 of 1960 was made retrospective, and, therefore,

the decision of their Lordships of the Supreme Court in Amir Singh and Another Vs. Ram Singh and Others, is a view in support rather than

against it. The result therefore, is that the answer to the second question must be in the negative, unless even under the then existing law

independent of the Amending Act, the pre-emptor's right could be defeated, nevertheless, by some one acquiring a superior right during the

pendency of the Plaintiffs' suit either by the act of the parties or an enactment.

The answer to the main question, therefore, will depend on what was the law governing the pre-emption in the State prior to the Amending

Act.

The sales giving cause of action to the present Plaintiffs were made and the two suits in question were filed by the Plaintiffs against the tenants

Defendants prior to the enactment of the Amending Act. The law on pre-emption obtaining prior to the Amending Act was governed in this State

by the provisions of the ""Right of Prior Purchase Act II of 1993"". Sections 4, 14, 15, 18, 19 and 20 of this Act came up for consideration by His

Highness Board of Judicial Advisors in certain Civil Appeals reported in J. and K. L R Vol. 3, 2001, para 210. The decision of the board which

came on July 13, 1944 was assented to by His Highness who was then the Sovereign Authority for the State. The Board was analogous to the

Privy Council for the State, and was the Appellate Authority for the Jammu and Kashmir High Court. Exactly a similar question had cropped up

for decision in those cases. After comparing the provisions contained in the aforesaid section, with those of the corresponding sections of the

Punjab Pre-emption Act, the Board dissented from the decision of the majority of the Full Bench in AIR 1941 Lah 433 (FB) in which a view had

been taken that a pre-emptor must have subsisting right of priority ""not only on the date of suit, but also on the date of the decree."" also on the

ground that the Punjab case made no mention of Sections 15 and 16 of the Punjab Pre-emption Act which correspond to Sections 14 and 15 of

the Jammu and Kashmir Prior Purchase Act, and held,

Having regard to these provisions it is clear to the Board that the priority is to be determined with reference to the date of the sale and not with

reference to the date of the institution or the decision of a suit lor pre-emption subsequently brought by one of the claimants.

After referring to some other decisions of some other High Courts like Allahabad and Lahore bearing on the law of pre-emption which are

materially different the Board held

There is no difficulty, both on the language of the Statute and on principle in holding that the right of priority is determined on the date of sale or

foreclosure and that subsequent improvement in the position of the vendee or mortgagee does not affect the right of prior purchase already vested

in. the pre-emptor.

The Board held that the provisions of Act II of 1993

can hardly justify the view that acquisition made by the vendee at any time after the sale which is sought to be pre-empted whether before or after

the suit can be set up by him to defeat the right of prior purchase accruing on the date of the sale.

Earlier in the judgment, the Board also pointed out, the question for it ""is resintegra and they are free to arrive at a conclusion on the terms of the

statute in force in the State unhampered by any judicial decisions binding on them."" If what was held by the Board was the Law, as it must be held

to have been so far this State of Jammu and Kashmir is concerned the right of a pre-emptor arising from a sale by a vendor in favour of a non-pre-

emptor such a non-pre-emptor by virtue of his subsequent acquisition of the right of pre-emption even superior, cannot defeat the right of first pre-

emptor by improving his own title after the sale.

The above law as obtaining in this State has continued unhampered and undisturbed until the Amending Act XXIII of 1959 came into force

with effect from 26-10-1959, and that being not retrospective, cannot affect the validity of the law, as enunciated by the Board in the interpretation

of the relevant provisions of the Right of Prior Purchase Act.

The Supreme Court in the Civil Appeal No. 255 of 1954 reported in Bishan Singh and Others Vs. Khazan Singh and Another, has on a

consideration of certain Sections like 4, 13, 17, 19, 20 and 28 of the Punjab Pre-emption Act of 1913 as amended by Act 1 of 1944 has laid

down certain incidents governing the law of preemption. They have summarized their conclusions in para 11 of the judgment they are:

(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. 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 Supreme Court in the case of (1963) 3 SCR 884 held that the pre-emptor must possess the right to pre-empt on the date of the sale, on

the date of the suit, and on the date of the decree.

Yet in another case reported in Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, their Lordships of the

Supreme Court have observed that the right of pre-emption is not one which is looked upon with great favour,

presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent tor parties to a

transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab where the right of pre-emption is also statutory, the

courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right of preemption by any lawful means

ana this viewhas been accepted by this Court....

Similar views have been taken by some other High Courts in India that the right of pre-emption is a weak one, and that it must exist at three stages

i.e. on the date of the sale, on the date of the suit and on the date of the decree.

I may however, point out that all these decisions point to the general incidents of the ordinary law of pre-emption unconditioned by any statute

or law governing a particular State or the country. Every State is free to have its own special law in the matter either by an enactment or by any

authoritative decision of its own High Court based on an interpretation of its own enactment. For example the Punjab Legislature after the Supreme

Court decision in Bishan Singh and Others Vs. Khazan Singh and Another, has amended their parent Punjab Pre-emption Act by Act 10 of 1960

providing specifically for determining the right of pre-emption from the date of the suit, and not from the date of the decree, and that is the law now

for Punjab.

The decisions of His Highness Board above referred to based on the interpretation of the relevant provisions of the Jammu and Kashmir, Right

of Prior Purchase Act, never came up for consideration by the Supreme Court in any one of its decisions. In Bishan Singh and Others Vs. Khazan

Singh and Another, their Lordships considered only some of the relevant provisions of the Punjab Pre-emption Act. It is no doubt true that some

of the provisions of that Act are identical with the provisions of the Right of Prior Purchase Act of Jammu and Kashmir but all are not identical

governing the right of pre-emption. Some of the relevant provisions of the Right of Prior Purchase Act which were interpreted by the Board did not

at all come up for consideration in the aforesaid case. Thus in my opinion it cannot be said that even by necessary implication the effect of the

decision of the Supreme Court in the above case would be overriding the decision of the Board. After the integration of the State of Jammu and

Kashmir, with the Union of India, the decision of the Supreme Court can well override the decision of His Highness Board but the Supreme Court

has not done it so far in any of its decisions. The decisions of the Board therefore must be deemed to have been the law for the State until the

Legislature undid it by its Amending Act XXIII of 1959.

Any decision of this Court to the contrary quoted in the judgment of Hon'ble Mr. Justice Bhat J. including the one of the Full Bench in AIR

1965 J. and K. 62 which followed the decision of the Supreme Court in Bishan Singh and Others Vs. Khazan Singh and Another, cannot be held

to be valid being in derogation of the Board's decision which was binding on it since as I have said it has not as yet been overruled by the Supreme

Court.

For the reasons I have stated above, I do not find myself in agreement with the views taken by Hon'ble Mr. Justice Bhat, and Hon'ble the

Chief Justice in answering the two questions in the affirmative. On the other hand, I would agree with the view taken by Hon'ble Mr. Justice

Jaswant Singh, with whom Hon'ble Mr. Justice Gurtu has also agreed. I would answer in the negative both the questions posed for consideration

by this Bench. There will be no order as to costs.

R.N. Gurtu, J.

I am of the view that Amending Act No. XXIII of 1959 is not retrospective. The right to pre-empt is a substantive right and is not a procedural

one. There is no express provision that the said Act is retrospective, nor is there anything to show that it is so.

By virtue of the Amendment the vendee tenant wishes to defeat the right of the pre-emptor agnate. On the date of sale the former had no right

to pre-empt and he cannot be deemed to have had that right since the Act is not retrospective. The right of the-pre-emptor can only be defeated

by a superior right holder and the right must relate back to the date of the sale. If the pre-emptor has to establish the existence of the right, at the

date of the sale, the date of the suit and the date of decree so must tie rival pre-emptor seeldng to defeat the right.

The present vendee tenant cannot defeat the pre-emptor unless he can say

when the sale took place you had no right to pre-empt because I was in a higher category.

The first step in the right in the case of those who wish to defeat the pre-emption suit mtist also be established to exist at the date of the sale.

In all cases that I have been shown pre-emption suits have been defeated by persons who could establish that the higher classes into which

they fell was a class pre-existing at the time of the sale. I do not express any view in regard to the effect of the decision of the Board of Judicial

Advisors.

For these reasons, I hold that the pre-emptor's suit cannot be dismissed and agree with the proposed formal order of brother Jaswant Singh.