BHARAT SINGH Vs. KALLU SINGH

JUDGEMENT

(1.) It is not disputed that this second appeal must succeed in view of the Division Bench decision of this Court in Ram Lal V/s. Raja Ram,1960 2 ILR(P&H) 233.

(2.) However, the learned counsel for the respondent raises a contention that the appeal must be dismissed as having abated. The question of abatement is alleged to have arisen in the following circumstances.

(3.) A suit for pre-emption was filed by Kalu Singh Musaddi Singh, seventh degree collaterals of Pokar Singh, the vendor. The vendees are Bharat Singh, Prahlad Singh and Shivdhan. The trial Court dismissed the suit. On Appeal, the decision of the trial Court was reversed and the plaintiff's suit for possession of the land by pre-emption was decreed. At the time of the decree, it was not known that Kalu Singh had died. It is a settled rule that the right of pre-emption is a purely personal right. Therefore, the right of Kalu Singh to get possession of the land by pre-emption came to an end with his death. Musaddi Singh, however, was entitled to a decree for possession by pre-emption and the mere fact that in the decree-sheet, both Musaddi Singh and Kalu Singh are shown as decree-holders will be of no consequence. The learned counsel for the respondents contends that legal representatives of Kalu Singh have not brought on the record. Kalu Singh had died before the pre-emption decree was passed. Therefore, on his death, the right of pre-emption did not survive to his legal representatives and there would be no question of the legal representatives continuing the suit for pre-emption. The lower appellate Court's decree, in the circumstances, would be a decree only in favour of Musaddi Singh. Therefore, no objection could be taken, at that the appeal has abated. It was not necessary for the vendee-appellants to implead the legal representatives of Kalu Singh because no decree in favour of Kalu Singh, who had died could be passed. I, therefore, repel the preliminary objection.