MALHU JAISHI Vs. SHAMLAL

JUDGEMENT

(1.) ON the 29th June, 1959 Nathi sold his land for Rs. 10,000/- to Charan Singh and others. A suit to pre-empt that sale was filed on the 29th June 1960 by Sham lal and others who claimed to be co-sharers in the Khata out of which the land had been sold by Nathi and who also claimed to be closely related to Nathi and therefore, entitled to preempt the sale. While this suit was pending, on the 10th august 1960 Charan Singh and others proceeded to sell the same land to Mahlu and others and on this Mahlu and others were joined in the suit for pre-emption as defendants 8 to 10. The sale to Mahlu and others was also for Rs. 10,000/ -. The suit for pre-emption was resisted in the circumstances mainly by Mahlu and others and the one plea raised by them, with which we are now concerned, was that they were tenants in the land sold and, in view of Section 17-A of the Punjab Security of Land Tenures Act, a sale made in favour of a tenant was not subject to any right of preemption. The trial Court found that the plaintiffs in the suit had a right of preemption as co-sharers and that the plea raised by the subsequent vendees was not in law tenable because the sale sought to be preempted, that is, the first sale in June 1959, was not a sale to a tenant and, the bar created by Section 17-A of the Punjab Security of Land Tenures Act was therefore inapplicable. In the result, the suit was decreed. Mahlu and others appealed but that appeal was dismissed. They then brought a second appeal to this court which was heard by capoor, J. , sitting alone, and, having considered the arguments on behalf of the appellants, he found no substance in them and affirmed the view of the Courts below that Section 17-A of the Punjab Security of Land Tenures Act was not a bar to the pre-emptors' claim in the present case. The appeal was, therefore, dismissed with costs. Against that decision Mahlu and others have brought the present appeal under Clause 10 of the Letters Patent.

(2.) FOR appreciating the argument raised before us two dates have to be borne in mind, apart from the fact that the sale in favour of the present appellants was made after the suit for pre-emption had been instituted. The first date is of an amendment made in the Punjab Pre-emption Act by which a right of preemption was given to a tenant in certain circumstances, the amendment having been made by Punjab Act 10 of 1960. This was of course long after the original sale in the present case had been made although it was before the filing of the present suit which was instituted in June 1960. Punjab Act 10 of 1960 took effect from february 4, 1960. The second date is the date of Section 17-A of the Punjab security of Land Tenures Act which was enacted in January 1959.

(3.) MR. Shamair Chand's submission in support of the present appeal is that a pre-emptor cannot succeed merely because he may have a right of pre-emption at the time of the sale which he seeks to pre-empt but must also have a right at the time the decree is granted to him which proposition is not in serious dispute before us, but he goes on to add that where a vendee transfers the property sold to him to another person and does so within the period of limitation fixed for a suit to enforce a right of pre-emption, the second transferee is in law substituted for the original vendee and is able to raise all pleas open to him. Reliance in this connection is placed by Mr. Shamair Chand on a decision of the Lahore High Court in Sant Kaur v. Teja Singh, AIR 1946 Lah 142. What the Full Bench, however, held in that case was something rather different. As the head note of that case puts it, the proposition was that the doctrine of lis pendens, although it does apply to preemption suits, does not apply when a vendee transfers the purchased property to another person in recognition of that other person's right of preemption and does so within the period of limitation. In the present case thus, if the second sale in favour of the present appellants had been made in recognition of any right of preemption vesting in them, the rule laid down by the Lahore High Court would have been applicable and so also is Mr. Shamair Chand's argument. The fact, however, is that the appellants did not have any right of preemption in respect of the sale made on the 29th June 1959 and were incapable of asserting any such right. The appellants were, of course, tenants in the land but the Punjab Pre-emption Act gave no right of pre-emption to them at all, that is at the time of the sale in June 1959. That right was given to them much later in February 1960. It is therefore, entirely wrong to suggest in the present case that the sale in favour of the appellants was made in recognition of any right of pre-emption of theirs, for in respect of the sale of the 29th June 1959 there was no such right. The argument based on the decision of the Lahore High Court in AIR 1946 Lah 142, therefore, breaks down.