WAZIR ALI KHAN Vs. ZAHIR AHMAD KHAN

JUDGEMENT

(1.) The facts of this case are given at length in my order of reference dated 25th April 1947 and need not be repeated.

(2.) The question that arises for decision is whether in every case where the vendee in a sale sought to be pre-empted has re-transferred the property purchased by him to another person having a right of pre-emption either equal or superior to that of the plaintiff who sues to preempt the sale, and the suit is resisted by such transferee on the strength, of his own preemptive right, the latter has got to show that the re-transfer in his favour had been made in recognition of such right. If this question is answered in affirmative, it must follow that if the re- transfer has been made otherwise than by re-sale the transferee cannot resist the suit on the strength of his own pre-emptive right. The right of pre-emption being a right of preferential purchase, a person acquiring title to the property forming the subject-matter of the sale otherwise than by purchase, e.g., by gift or by exchange, cannot be deemed to have done so in enforcement of such a right. I am not unaware of the fact that Mahajan, J. in delivering the judgment of the Letters Patent Bench in Mohammad Afzal V/s. Ghulam Mohammad A.I.R. 1944 Lah. 463 did visualize the possibility of a gift being made in recognition of the donee's superior right of preemption. His Lordship has drawn an analogy between such a gift and an offer by a vendee in a pre-emption suit to have a decree passed against himself without the plaintiff being required to pay or deposit the sale price. The observations made by his Lordship, however, appear to overlook the provisions of Order 20, Rule 14, Civil P.C., prescribing the form in which a decree in a preemption suit has got to be passed. The rule provides that where the Court decrees a claim to preemption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall specify a day on or before which the purchase-money shall be so paid, and direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day fixed for payment, the defendant shall deliver possession of the property to the plaintiff but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs. The rule also provides that the title of the decree-holder is to be deemed to have accrued from the date of payment of the purchase-money into Court. If a vendee in a suit brought to enforce the right of pre emption admits the plaintiff's claim but offers to surrender the property to him without taking any price and the Court passes a decree for possession of the property in the plaintiff's favour without requiring him to pay into Court the purchase money and without otherwise complying with the provisions of Order 20, Rule 14, Civil P.C., the decree cannot be deemed to be a pre-emption decree and the title which the plaintiff will acquire under the decree cannot be regarded as a title acquired by enforcement of a right of pre-emption.

(3.) After hearing Mr. D.N. Aggarwal for the appellant and Mr. Som Datta Bahri who appeared as an amicus curi? in support of the judgment of the learned Senior Sub-Judge, the respondent being unrepresented, I am inclined to take the view that the answer to the above question must in each case depend upon the answer to the question whether the re-transfer was made before the institution of the suit for pre-emption or during the pendency of such suit. If the re-transfer took place before the institution of the suit, the transferee can resist the suit on the strength of his own pre-emptive right regardless altogether of the consideration whether the transfer in his favour was made in recognition of his superior pre-emptive right or could otherwise be regarded as having been made in recognition of such right. In the result, it should be immaterial whether the transfer took the form of a sale, a gift or an exchange. So long as the transferee can be shown to have acquired the full title of the vendee under the sale sought to be pre-empted he can resist the suit on all pleas which would have been open to him had the sale in the first instance been made in his favour. If, however, the re-transfer took place after the institution of the suit, the transferee can plead his own equal or superior preemptive right in bar of the suit only if the transfer in his favour can be held to have been made in recognition of such right. In such a case, the transfer in order to clothe the transferee with a right to resist the plaintiff's suit on the strength of his own qualification must take the form of sale and must have been made at a time when his right to enforce his pre-emptive right by means of an action was still subsisting. It is settled law that unless a transfer pendente lite can be held to be a transfer in recognition of a subsisting preemptive right, the rule of lis pendens applies and the transferee takes the property subject to the result of the suit during the pendency where, of it took place (vide Moolchand V/s. Ganga Jal A.I.R. 1930 Lah. 356 F.B. and Mt. Sant Kaur V/s. Teja Singh A.I.R. 1946 Lah. 142.