MANGAL SINGH BADAN SINGH Vs. BHAG SINGH

JUDGEMENT

(1.) The short point for decision in this case is whether it is open to a pre-emptor to exclude another pre-emptor by entering into an agreement with a stranger vendee to purchase only a part of the property in respect of which the right of pre- emption exists. It appears that on 6-2-1944 one Bishan Singh sold a plot of land measuring 17 bighas 9 biswas and 14 biswansis to Bhag Singh for a sum of Rs. 9,500. On 18-8-1944 Kapur Singh and Bahadur Singh, two collaterals of the vendor, purchased a portion of this land (measuring 9 bighas 3 biswas and 19 biswansis) for a sum of Rs. 5,000 in assertion of their right of pre-emption. The sale in favour Of Bhag Singh gave rise to three suils for possession by pre-emption each of which was brought by one or more of the collaterals of the vendor. The first suit was brought by Mangal Singh on 15-8-1944; the second by Mai Singh on 20-10-1944 and the third by Kapur Singh and Bahadur Singh on 9-1-1945. The plaintiffs in the last case alleged that as soon as they were informed of the sale in favour of Bhag Singh, they threatened to exercise, their right of pre-emption. The vendee promptly transferred 9 bighas 3 biswas and 19 biswansis to them promising to transfer the remaining land in due course. He failed to carry out his promise and the plaintiffs were accordingly reluctantly compelled to sue for possession of 8 bighas 5 biswas and 15 biswansis. The trial Court held that the right of pre-emption of each of the three sets of pre-emptors was equal, that Kapur Singh and Bahadur Singh obtained a portion of the land in exercise of their right of pre-emption, that this sale was binding on Mangal Singh and Mai Singh and that the suit brought by Kapur Singh and Bahadur Singh was an afterthought having been instituted with the object of injuring the rights of the other pre- emptors. On these findings the trial Court dismissed the suit of Kapur Singh and Bahadur Singh and passed a decree for possession by pre-emption of 8 bighas 5 biswas and IS biswansis in equal shares in favour of Mangal Singh and Mai Singh. It was ordered that if either of the two pre-emptors did not deposit his share of the pre-emption money, within the time fixed by the Court, the other pre-emptor would be at liberty to deposit the money and obtain a, decree, for the entire land. The learned District Judge confirmed this order in appeal making a slight alteration in the amount which the pre-emptors were required to pay Mangal Singh has come to this Court in second appeal and the question for this Court is whether the Courts below, have come to a correct determination in point of law.

(2.) The only question which requires decision in this case is whether the Courts below were justified in dismissing the appellant?s suit in respect of the land which had been sold to Kapur Singh and Bahadur Singh.

(3.) It is an accepted proposition of law that the right of pre-emption is not a right of repurchase either from the vendor or the vendee, involving a new contract of sale, but simply a right of substitution entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to standi in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It follows as a consequence that ordinarily the pre- emptor must take over the whole and not only a part of the property which whioh he is entitled to pre-empt.