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Gurdev Kaur And Others v. Shrimati Chanan Kaur And Others
Factual and Procedural Background
A suit for pre-emption was filed by Avtar Singh to pre-empt a sale made by his father, Jagat Singh. During the pendency of the suit Avtar Singh died. His widow, his mother and his three daughters (identified in the opinion as his next heirs under the Hindu Succession Act) applied to be impleaded as his legal representatives so that they could continue the suit. The trial Court rejected that application and dismissed the suit.
The legal representatives appealed. The lower appellate Court directed them to obtain letters of administration to the deceased's estate and then proceed with the suit. Letters of administration were obtained and the lower appellate Court remanded the case for decision on merits. The vendees (purchasers) preferred a second appeal to the High Court. One of the vendees was murdered in the meantime and his legal representatives were placed on record.
A learned Single Judge of the High Court held that the right of pre-emption was a purely personal right and therefore the suit could not be proceeded with by the legal representatives; the learned Single Judge allowed the appeal and dismissed the plaintiffs' suit. A certificate was given by that Judge and the present appeal under clause 10 of the Letters Patent was preferred to the Division Bench.
Legal Issues Presented
- Whether the statutory right of pre-emption is a purely personal right that dies with the pre-emptor, or whether it is a right that "runs with the land" and thus passes to the legal representatives/heirs on the pre-emptor's death.
- Whether the legal representatives of a deceased pre-emptor can be impleaded and continue a pending suit for pre-emption under the relevant procedural provisions (Order 22 rules of the Code of Civil Procedure as discussed).
Arguments of the Parties
Respondents' Arguments (as recorded for Mr. Awasthy, learned counsel for the respondents)
- Mr. Awasthy contended that the Supreme Court decision in Hazari v. Neki did not necessarily render the Single Judge's decision erroneous or conclusively decide the present appeal.
- He argued that in some cases the right of pre-emption is purely personal, whereas in others it may run with the land; his principal contention was that the Hazari decision concerned a right that arose because the pre-emptor owned land in the village, and that observations in Hazari should be restricted to cases where the right is based on ownership/inheritance.
- Faced with questioning about pre-emption based on relationship under section 15, Mr. Awasthy conceded that a pre-emptor who claims by relationship need not himself possess land in order to claim pre-emption.
- He relied on distinctions drawn in earlier decisions (including observations attributed to Mehar Singh, J.) to support the contention that heirs of a pre-emptor who died pendente lite might not always be able to continue the suit.
Other Parties
The opinion does not contain a detailed account of the appellants' (the deceased pre-emptor's legal representatives') step-by-step legal arguments in this Court beyond their procedural acts (application for impleadment, obtaining letters of administration) and their success before the lower appellate Court. The primary contested legal contentions recorded in the opinion are those advanced by the respondents (see above) and the precedents relied upon by the Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hazari v. Neki (Supreme Court) | The statutory right of pre-emption attaches to the land (runs with the land) and is not merely a personal right that necessarily dies with the pre-emptor; S.306 of the Indian Succession Act and Order 22 CPC provisions support survival in certain cases. | The Division Bench relied on this decision as dispositive: it concluded that Hazari establishes that the right of pre-emption passes to legal heirs and that a suit for pre-emption can be continued by the deceased pre-emptor's legal representatives. This led the Court to hold the Single Judge's contrary view to be erroneous. |
| Faqir Ali Shah v. Ram Kishm, 1907 Pun. Re 133 (Full Bench) | Held that where the right to sue for pre-emption accrues during life, and the successor inherits the property through which the right accrued, the right of pre-emption passes with the land on inheritance (distinguishing inheritance from voluntary transfer). | Quoted by the Supreme Court (and relied upon by the Division Bench) as supporting the proposition that pre-emption passes on inheritance; the present Court cited it as authoritative support for the view that the right runs with the land. |
| Wajid Ali v. Shaban, (1909) I.L.R 31 All 623 (Full Bench) | Where a customary right of pre-emption exists (as recorded in village wajib-ul-arz), the right, having once accrued, does not necessarily lapse by the death of the pre-emptor before making a claim but descends along with the property to the heir. | Adduced as supporting authority that a pre-emption right descends with the property; relied upon to reinforce the conclusion that the right survives death and can be prosecuted by heirs. |
| Shri Audh Behari Singh v. Gajadhar Jaipuria | Expresses the proposition that the benefit and burden of the right of pre-emption run with the land and can be enforced by or against the owner for the time being, although the pre-emptor's right is not an interest in the land itself. | Cited by the Division Bench as further support for the legal principle that pre-emption runs with the land and thus passes to heirs and legal representatives. |
| Partap Singh v. Daulat (as discussed by Mehar Singh, J.) | Referenced in argument/earlier decisions for the proposition that heirs of a pre-emptor who died could not continue the suit (the opinion records a distinction made by Mehar Singh, J.). | The Court noted that Mehar Singh, J. had distinguished the position in that case, but observed that the Supreme Court in Hazari did not refer to Partap Singh v. Daulat and proceeded on the ground that the right runs with the land; thus, Partap Singh did not alter the Court's conclusion here. |
Court's Reasoning and Analysis
The Court proceeded by comparing the learned Single Judge's conclusion (that the right of pre-emption is purely personal and died with the deceased pre-emptor) with binding and persuasive authorities, principally the Supreme Court's decision in Hazari v. Neki.
The Court quoted and relied upon a passage from the Supreme Court in Hazari explaining the legal character of pre-emption: although the right of pre-emption is personal in the sense that it depends on the relationship between pre-emptor and vendor, the statutory law of pre-emption imposes a limitation on ownership and creates a right that "attaches to the land" and can be enforced against a purchaser. The Supreme Court further relied on S.306 of the Indian Succession Act and the Code of Civil Procedure (Order 22 rules) to conclude that such a right survives in the legal representatives upon the pre-emptor's death where inheritance is the mode of transfer.
The Division Bench examined the respondents' contention (advanced by Mr. Awasthy) that Hazari should be confined to cases of pre-emption grounded in ownership or inheritance and not to relationship-based claims; the Court posed a direct question to Mr. Awasthy whether a pre-emptor asserting rights by relationship must necessarily possess land to claim pre-emption under section 15. Mr. Awasthy conceded that possession of land by the pre-emptor is not necessary for a relationship-based pre-emption claim under section 15.
The Court therefore rejected the respondents' attempt to distinguish Hazari, concluding that the Supreme Court's reasoning (that the right runs with the land and passes on death to heirs) applies regardless of whether the pre-emption claim is based on ownership or relationship. The Court reinforced this conclusion by citing Full Bench decisions (Faqir Ali Shah; Wajid Ali v. Shaban) and the decision in Shri Audh Behari Singh v. Gajadhar Jaipuria, all of which support the proposition that the right of pre-emption descends or runs with the land on inheritance.
The Court further observed that prior local decisions (including the decision of a Single Judge relied upon by respondents) were either distinguished or were not followed by the Supreme Court in Hazari. On this basis the Court found the learned Single Judge to have erred in law by holding that the right of pre-emption was purely personal and extinguished on the pre-emptor's death.
Holding and Implications
Core Ruling: Appeal allowed; the decision of the learned Single Judge is set aside and the decision of the lower appellate Court is restored.
Direct consequences for the parties:
- The case is remitted to the trial Court to proceed on the merits; the parties were directed to appear before the trial Court on 1 March 1971.
- The legal representatives (heirs) of the deceased pre-emptor are entitled to continue the suit for pre-emption; the Court concluded that the right of pre-emption runs with the land and passes to legal heirs on death.
- The Division Bench made no order as to costs in the appeal.
Broader implications:
The opinion relies on and applies existing authorities (notably the Supreme Court in Hazari v. Neki and Full Bench decisions) to resolve the question before it. The opinion does not purport to establish a novel principle of law beyond the application of those authorities; its immediate effect is to permit heirs/legal representatives to continue pending suits for pre-emption where the right is tied to the land and the succession is by inheritance.
D.K Mahajan, J.:— This appeal under clause, 10 of the Letters Patent must succeed in view of the decision of the Supreme Court in Hazari v. Neki . 1968 70 P.L.R 823..
2. A suit for pre-emption was filed by Avtar Singh to pre-empt the sale made by his father Jagat Singh. During the pendency of he suit Avtar Singh died. His widow, his mother and his three daughters, who are his next heirs under the Hindu Succession Act, made an application to be impleaded as his legal representatives, so that they could continue the suit. This application was rejected by the trail Court and the suit was dismissed.
3. The legal representatives then preferred an appeal against the order of the trial Court, and the lower appellate Court directed them to obtain letters of administration to the estate of the deceased and then proceed with the suit. The letters of administration having been obtained, the case was remanded by the lower appellate Court for decision on merits. Against the order of remand by the lower appellate Court a second appeal was preferred by the vendees to this Court. One of the vendees had been murdered in the meantime and his legal representatives are now on the record.
4. The learned Single Judge took the view that the right of preemption was a purely personal right and therefore, the suit for preemption could not be proceeded with by the legal representatives. In this view of the matter he allowed the appeal and dismissed the plaintiffs' suit. On a certificate having been given by him, the present appeal under clause 10 of the Letters Patent has been preferred.
5. After the decision of the learned Single Judge the Supreme Court has in Hazari's case held that the right of pre-emption goes with the land and therefore, the suit can be carried on by the legal representative of the deceased pre-emptor. In this connection reference may be made to the following paragraph in their Lordships judgment:—
“4 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 pre-emption. The argument was that the statutory right of pre-emption 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 representative 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 retransfer 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 inconvenience 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 pre-emption though not anointing 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 pre-empt. In the present case, Neki obtained decrees for pre-emption in all the three suits against the appellants and these decrees were confirmed by the first appellate Court. White the second appeals were pending in the High Court, Neki died and the question is whether under the provisions of O. 22 R. 1 and O. 22 R. 11 of the Code of Civil Procedure, the right of sue survived after the death of Neki. In this context, it is necessary to consider the provisions of S. 306 of the Indian Succession Act XXIX of 1965. This section expresses a qualification of the maxim action personalis moritur cum persona to the extent that the section indicates that amongst causes of action which survive are included some actions of a personal nature that is to say personal actions other than those expressly excluded by the section itself. It is true that the right of pre-emption under S. 15(1)(a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre-emptor depends upon the nature of his relationship with the vendor. But under S. 14 of the Act, the pre-emptor must be a member of an agricultural tribe in the same group of agricultural tribe as the vendor and the land of which pre-emption is sought must be in respect of agricultural land sold to a member of the agricultural tribe. We are of opinion that if an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre-emption. The view which we have taken is supported by the language of S. 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre-emption did not abate upon his death and that the legal representatives of Neki were properly brought on record of the second appeals under the provisions of O. 22, R. 1 read with O. 22, R. 10 of the Code of Civil Procedure. The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah v. Ram Kishm, 1907 Pun. Re 133 (FB). The question that arose for determination in that case was whether the right to sue for pre-emption under S. 12 of the Punjab Laws Act upon a cause of action which accrued to a person in his lifetime passed at his death to his successor who inherited the property through which the right had accrued. The view of the Full Bench as regards the transfer by inheritance was that the general principle applied and that the right of pre-emption passed with the land and the learned Judges distinguished the transfer by inheritance from the transfer of property by some voluntary act of the parties. At p. 641 of the Report, Clark, C.J observed:
“While, therefore, there is good reason why voluntary transfer should not pass a right of 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 18 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 sea 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 13 father.”
6. A similar view was expressed by the Full Bench of the Allahabad High Court in Wajid Ali v. Shaban, (1909) I.L.R 31 All 623. It was held that where a right of pre-emption exists by custom as recorded in the village wajtb-ularz, 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.”
7. Mr. Awasthy, learned counsel for the respondents, very strenuously contended that the Supreme Court decision does not support the view that the decision of the learned Single Judge is erroneous and in fact it does not conclude the present appeal. His contention is that in certain cases right of pre-emption can be a purely personal right whereas in other cases it cannot be a personal right and may be a right which runs with the land. His principal contention is that the right with which the Supreme Court was concerned in Hazari's case was the right which arose by reason of the fact that the pre-emptor was owner of the land in the village and therefore, the observations of the Supreme Court in that decision must be restricted to the cases where the right of pre-emption is purely based on the right to inherit property. As we read the Supreme Court decision, we find no such distinction. In the case before the Supreme Court the right of pre-emption was asserted on the basis of relationship. We posed a question to Mr. Awasthy whether for the purposes of pre-emption under section 15, a relation has necessarily to posses land before he can exercise his right of pre-emption. The learned counsel fairly and frankly conceded that in the case of relationship it was not necessary. It is admitted that it is not necessary in all claims for pre-emption based on section 15 that the pre-emptor must own land. If he is related to the vendor, who sells his land and that relationship is the one contemplated by section 15, he can pre-empt the sale and acquire the land in preference to the vendee. Faced with this situation the learned counsel was driven to the contention that it is this type of right which must be held to be purely a personal right. It dies with the death of the pre-emptor pendente lite. We are unable to agree with this contention. We have already reproduced the relevant extract from the decision of the Supreme Court in Hazards case and it only leads to one conclusion, namely, that the right of pre-emption is a right which runs with the land which is the subject matter of suit for pre-emption. As this right runs with the land it passes on the death of the pre-emptor to his legal heirs and they can continue the suit filed by him. This view also finds support from the decision in Shri Audh Behari Singh v. Gajadhar Jaipuria,2 and from the observations of B.K Mukherjea, J. (as he then was) quoted below:—
“The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself.”
8. Mr. Awasthy then referred to the decision of this Court in Hazari v. Neki,3. This decision was taken up in appeal to the Supreme Court and we have already dealt with it. Mr. Awasthy drew our attention to the distinction drawn by Mehar Singh. J. while disposing of the contention based on Partap Singh v. Daulat,4 to the effect that the heirs of pre-emptor who had died could not continue the suit. The relevant observations of the learned Judge on which reliance has been placed are quoted below:—
“This case again does not advance the argument on the side of the appellants-vendees for the simple reason that the original pre-emptor died during the pendency of the suit, which is not the case in these appeals.”
9. No reference made to this decision by their Lordships of the Supreme Court in Hazari's case. On the other hand that decision proceeded on the simple ground that the right of pre-emption ran with the land sold and as such on the death of the pre-emptor his legal heirs could continue the suit. That being the position, there is no escape from the view we have taken that the learned Judge was in error in holding that the right of preemption was a purely personal right and died with the death of the pre-emptor.
10. For the reasons recorded above, we allow this appeal, set aside the decision of the learned Single Judge and restore that of the lower appellate Court. The parties are directed to appear before the trial Court on 1st of March, 1971. The Court will proceed to decide the case on merits. We make no order as to costs in this appeal.
11. Appeal allowed.
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