GOPI CHAND Vs. KOMAL CHAND

JUDGEMENT

(1.) A preliminary objection has been taken by Shri P. D. Mathur, the learned counsel for the defendants-respondents that since the sole plaintiff appellant-Gopi Chand expired in March, 1977, the suit for pre-emption cannot survive and the legal representatives cannot continue it.

(2.) IT is not disputed that the sole plaintiff-Gopichand has expired in 1977 when this appeal was pending. IT is also not in dispute that at the relevant time, when the cause of action for this suit arose, there were no statutory law for pre-emption in the form of Rajasthan Pre-emption Act. IT is also common ground that even though there was no statutory law of pre-emption yet in the former Jaipur State, the custom of pre-emption used to prevail, based on the Mohammedan Law. IT is also common ground that this custom of pre-emption based on Mohd. Law was later on modified by a notification of 1927.

(3.) BEFORE I may consider their application it must be further mentioned that their Lordships of the Apex Court in Hazari Vs. Neki (dead) by his legal representatives (2) observed as under : "5. It is necessary to emphasise that we are dealing in this case with the statutory right of pre-emption under Punjab Act 1 of 1913 and its subsequent amendments and not with the right of pre-emption under the Moham-madan Law. In regard to the latter right it has been held that according to the Mohammadan Law applicable to the Sunny sect if a plaintiff in a suit for pre-emption has not obtained his decree for pre-emption in his life time the right to sue does not survive to his heirs. See Mohammed Hussain Vs. Niamat-un-nissa, (1897) ILR 20 All 88 It is not necessary for us to express any opinion on this point in the present case. "