HAZARI Vs. NEKI

JUDGEMENT

(1.) THREE sales of land were effected by Dhara Singh in favour of Hazari. Amar singh and Bhan Singh, appellants-vendees. The first sale was on September 20, 1960, of 27 Kanals and 4 Marias, the second was on November 23, 1960, of 36 kanals and 19 Marias, and the third was on March 6, 1961, of 33 Kanals and 18 marias. Neki, deceased-plaintiff was Dhara Singh's father's brother. On the basis of such relationship he pre-empted the three sales under Section 15 (b), thirdly, of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913) and in all the three suits he succeeded in the trial Court. The appellants-vendees failed in the first appellate court.

(2.) THERE were three second appeals in the three suits by the appellants-vendees in this Court. While those appeals were pending Neki, deceased-plaintiff, died on april, 7, 1963. After his death the appellants-vendees in each one of their three second appeals moved an application under Order 22, Rules 3 and 4 of the Code of civil Procedure to bring on the records of the appeals the legal representatives of neki, deceased--plaintiff Three legal representatives have been named. The first is dhara Singh vendor, and the other two are the sons of this vendor. One of his sons named Ram Kishan had himself instituted pre-emption suits to preempt the sales and after having obtained decrees on compromise in those suits, he not having complied with the terms of the decrees, it was Neki, deceased-plaintiff, who succeeded in his claims. The reason for bringing Dhara Singh vendor on the records as legal representative of Neki, deceased-plaintiff, is that he is the nearest collateral relation entitled to succeed to the estate of the deceased-plaintiff. In the case of one son of this vendor named Balbir Singh, in the application it is stated that there is a will made by the deceased-plaintiff in his favour. The second son of the vendor has also been impleaded along with his brother and father. So at least dhara Singh vendor has been impleaded because he is an heir to the estate ' of neki, deceased-plaintiff, being at No. VII in Class II in the schedule under Section 8 of the Hindu Succession Act, 1956 (Act 30 of 1956), and his son Balbir Singh has been impleaded because of his possible and likely claim under a will in his favour by the deceased-plaintiff. The decrees of the trial Court are of November 7, 1962. and those of the Court of first appeal of January, 30. 1963. In between, and while the appeals were pending in the first appellate Court, on December 5, 1962, Neki deceased-plaintiff, transferred the lands, the subject-matter of the suits, to respondents in those appeals other than Neki. deceased-plaintiff, as represented by Dhara Singh vendor and the two sons of the last named, Ram Kishan and Balbir singh Those respondents, who may for the sake of convenience be described as second vendees, have become parties only at the stage of the second appeals. A pre-emption decree is in the nature of things a conditional decree and it has been stated at the bar that excepting the decree concerning the sale of 33 Kanals and 18 Marias on March 6. 1961, the terms of the other two decrees were complied with by the pre-emptor. Neki deceased-plaintiff. In other words, the deceased plaintiff made payment of the amounts under those two decrees in the terms of the decrees Although the exact date is not known but it has been said that the payments were made within the time given in the decrees In regard to the third sale of 33 Kanals and 18 Marias which was effected on March 6, 1961, it has been stated that there is a dispute pending between the parties in the executing Court whether or not the deceased-plaintiff deposited the amount under the decree in the terms of the decree and within the time prescribed in it. This however, is not going to make any difference to the decision of the question, the matter of contention, in these appeals. The reason is this, if the deceased plaintiff did not comply with the terms of the decree and make the deposit within the time stated in the decree, his particular suit must stand dismissed in the very terms of the decree. In that case no further question can possibly arise in any appeal in this court in so far as the appellants-vendees are concerned. If on the other hand, the deceased-plaintiff complied with the terms of the decree and made the deposit within the time stated therein, the position is exactly the same in the case of the oilier two sales in the other two appeals.

(3.) IN the second appeals two arguments were urged before the learned Single judge, which were negatived, but only one such argument survives at this stage in these appeals under Clause 10 of the Letters Palenl. The argument is that the right of pro -emption claimed by Neki, deceased-plaintiff, was a personal right which died with him on his death, and that the position is no different that Neki. deceased-plaintiff died during the pendency of the second appeals, after the decrees of the trial Court had been affirmed In the Court of first appeal, than would have been the case if he had died during the pendency or the suits in the trial Court, in which case the trial Court would have had no option but to proceed to dismiss each one of his three suits The reason given in support of this is that it is now well settled that an appeal is a continuation of the suit and the proceedings in the original Court and in consequence of the pendency of an appeal the subject-matter of the litigation is sub judice The learned counsel for the appellants-vendees does not accept that the obtaining of decrees by the deceased plaintiff makes any difference. He has pressed that in spite of his having obtained decrees from the trial Court when second appeals were pending against those decrees, the original suit of proceedings were in continuation and even it this Court proceeded to dismiss the second appeals it would be passing decrees at that stage The learned counsel has urged that a decree for pre-emption cannot possibly be made by this Court in second appeal when by the lime such a decree is made the pre-emptor has lost his personal right of pre-emption, as in this case by the death of neki deceased-plaintiff', he ceased to he the vendor's father's brother This argument has not found favour with the learned Single Judge who has by his judgment and decrees of September 17, 1964. dismissed the three second appeals of the appellants vendees, however leaving the parties to their own costs. There is no other argument that has been urged on the side of the appellants vendees in these appeals excepting this one argument. It has no relation to the merits of the defence of the appellants vendees to the claims of Neki, deceased-plaintiff, to preempt the three sales What is being urged is that the appeals being continuation of the suits of the deceased-plaintiff on his death the right of pre-emption having come to an end the suits must be dismissed and this Court cannot affirm in second appeal the decrees of the Court of the first appeal, for to do so would be passing decrees in favour of persons who have no right of preemption as Dhara Singh vendor and his sons. The only other matter which the learned counsel for the appellants vendees has argued is that it is somewhat anomalous that a decree for preemption of the sales of Dhara Singh vendor he made in his favour and he says that that cannot possibly be done.