JUDGMENT
1. This appeal under clause 10 of the Letters Patent must succeed in view of the decision of the Supreme Court in Hazari v. Neki, AIR 1968 SC 1205.
2. A suit for pre-emption was filed by Avtar Singh to pre-empt the sale made by his father Jagat Singh. During the pendency of the suit Avtar Singh died. His widow, his mothers and his three daughters, who are his next heirs under the Hindu Succession Act made an application to be impleaded as his legal representatives, so that they could continue the suit. This application was rejected by the trial Court and the suit was dismissed. The legal representatives then preferred an appeal against the order of the trial Court, and the lower appellate Court directed them to obtain letters of a administration to the estate of the deceased and then proceed with the suit. The letters of administration having been obtained, the case was remanded by the lower appellate Court for decision on merits. Against the order of remand by the lower appellate Court a second appeal was preferred by the vendees had been murdered in the meantime and his legal representatives are now on the record.
3. The learned Single Judge took the view that the right of pre-emption was a purely personal right and, therefore, the suit for pre-emption could not be proceeded with by the legal representatives. In this view of the matter he allowed the appeal and dismissed the plaintiff’s suit. On a certificate having been given by him, the present appeal under clause 10 of the Letters Patent has been preferred.
4. After the decision of the learned Single Judge the Supreme Court has in Hazari’s case, AIR 1968 SC 1205 held the right of pre-emption goes with the land and, therefore, the suit can be carried on by the legal representatives of the deceased pre-emptor. In this connection reference may be made to the following paragraph in their Lordships’ judgment :-
“4. In support of these appeals, learned counsel put forward the argument that the right of pre-emption claimed by the Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre-emption. The argument was that the statutory right of pre-emption under the Punjab Act was not a heritable right and no decree for pre-emption should have been passed by the lower Court in favour of the legal representatives of representing the estate of Neki. We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre-emption is a emptor to get te retransfer of the property from the vendee who has already become the owner of the same. it is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconvenience and disturbances which would arise from the introduction of a strange into the land. The correct legal possession is that the statuary law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owners’ right of sale and compels him to sell the property to the person entitled to pre-emption under the statute. In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt. In the present case, Neki obtained decrees for pre-emption in all the three suits against the appellants and their decrees were confirmed by the first appellate Court. While the second appeals were pending in the High Court, Neki died and the question is whether under the provisions of O. 22, R. 1 and O. 22, R. 11 of the Code of Civil Procedure, the right to sue survived after the death of Neki. In this context, it is necessary to consider the provision of Section 306 of the Indian Succession Act XXIX of 1925. This section expresses a qualification of the maxim actio personlis moritur cum persons to the extent that the section indicates that amongst causes of action which survive, are included some actions of a personal nature, that is to say personal actions other than those expressly excluded by the section itself. It is true that the right of pre-emption under Section 15(1)(a) of the Punjab Act of 1913 is a personal right if the sense that the claim of the pre-emptor depends upon the nature of his relationship with the vendor. But under Section 14 of the Act, the pre-emptor must be a member of an agricultural tribe in the same group of agricultural tribe as the vendor and the land of which pre-emption is sought must be in respect of agricultural land sold to a member of the agricultural tribe. We are of opinion that if an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre-emption. The view which we have taken is supported by the language of Section 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre-emption did not abate upon his death and that the legal representatives of Neki were properly brought on record of the second appeals under the provisions of O. 22, R. 1 read with O. 22, R. 10 of the Code of Civil Procedure. The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah v. Ram Kihen, 1907 Pun Re 133 (FB). The question that arose for determination in that case was whether the right to sue of pre-emption under Section 12 of the Punjab Laws Act upon a cause of action which accrued to a person in his lifetime passed at his death to his successor who inherited the property through which the right had accrued. The view of the Full Bench as regards the transfer by inheritance was that the general principle applied and that the right of pre-emption passed with the land and the learned Judges distinguished the transfer by inheritance from the transfer of property by some voluntary act of the parties. At p. 641 of the Report, Clark, c. J. observed :
“While therefore, there is good reason why voluntary transfer should not pass a right of pre-emption as regards properties previously sold, those reasons do not apply to transferee by inheritance. The general principle would not apply that the right of pre-emption passes with the land.
Mr. Grey laid great stress on Sections 13 and 16 of the Punjab Laws Act urging that the father was the person on whom the notice had to be served., and that the right was thus a personal one that could not be inherited by te son. The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son. If the father had waived or otherwise disposed of his right this would no doubt be binding on the son, as the father was representing the whole estate.
Where, however, the father has done nothing of the kind but has simply taken no steps in the matters there seems to me no reason why the son should not step into the shoes of his father could have done. The son inherits the other causes of action belonging to his father and why not this one.? Nor do I see why the son cannot come in under Section 16, simply alleging that no notice as required by Section 13 was served on his father.”
A similar view was express by the Full Bench of the Allahabad High Court in Wajid Ali v. Shaban, (1909) ILR 31 All 623 (FB). It was held that where a right of pre-emption exists by custom as recorded in the village wajib-ul-arz, the right having once argued did not of necessity lapse by the death of the pre-emptor before making a claim, but descended along with the property in virtue of which it subsisted to the heir of the pre-emptor”.
5. Mr. Aswathy, learned counsel for the respondents every strenuously contended that the Supreme Court decision does not support the view that the decision of the learned Single Judge is erroneous and in fact it does not conclude the present appeal. his contention if that in certain cases right of pre-emption can be purely personal right whereas in other cases it cannot be a personal right and may be a right which runs with the land. His principal contention is that the right with which the Supreme Court was concerned Hazari’s case, AIR 1968 SC 1205 was the right which arose by reason of the fact that the pre-emptor was owner of the land in the village and thereof, the observations of the Supreme Court in that decision must be restricted to the cases where the right of pre-emptor is purely based on the right of pre-emption is purely based on the right to inherit property. As we read the Supreme Count decision, we find no such distinction.
In the case before the Supreme Court the right of pre-emption was asserted on the basis of relationship. We posed a question to Mr. Awasthy whether for the purposes of pre-emptor under Section 15, a relation has necessarily to possess land before he can exercise his right of pre-emptor. The learned counsel fairly ad frankly conceded that in the case of relationship it was not necessary. It is admitted that it is not necessary in al l claims for pre-emption based on Section 15 that the pre-emptor must own land. If he related to the vendor, who sells his land and that relationship is one contemplated by Section 15, he can pre-empt the sale and acquire the land n preference to the vendee. Faced with this situation the learned counsel was driven to the contention that it is the type of right which must be held to be purely a personal right. It dies with the death of the pre-emptor pendants like. We are unable to agree with the this contention. We have already reproduced the relevant extract from the decision of the Supreme Court in Hazari’s case. AIR 1968 SC 1205 and it only leads to one conclusion, namely, that the right of pre-emption is a right which runs with the land which is th subject-matter of suit for pre-emption. As this right runs with the land which, is the subject-matter of suit for pre-emption. As this right runs with the land it passes on the death of the pre-emptor to his legal heirs and they can continue the suit filed by him. This view also finds support from the decision in Audh Behari Singh v. Gajadhar Jaikpuria, AIR 1954 SC 417 and from the observation of B. K. Mukherjee, J (as he then was quoted below :3
“The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an inherent in the land itself.”
6. Mr. Awasthy then refereed to the decision of this Court in Hazari v. Neki, Air 1966 Punj 348. This decision was taken up in appeal t the Supreme Court and we have already dealt with it. Mr. Awasthy drew our attention to the distinction drawn by Mehar Singh, J. while disposing of the contention based on Partab Singh v. Daulat, ILR 36 All 63 = (Air 1914 All 57 (i) to th effect that the heirs of pre-emptor who had died could not continue the suit. The relevant observations of the learned Judge on which reliance has been placed are quoted below :-
“This case again does not advance the argument on the side of the appellants – vendees for the simple reason that the original pre-emptor died during the pendency of the suit, which isn’t the case in these appeals.”
No reference was made to this decision by their Lordships of the Supreme Court in Hazari’s case AIR 1963 SC 1205. On the other hand that decision proceeded on the simple ground that the right of pre-emptor ran with the land sold and as such on the death of the pre-emptor his legal heirs could continue the suit. That being the possession, there is no escape from the view we have taken that the learned Judges was in error in holding that the right of pre-empton was a purely personal right and died with the death of the pre-emptor.
7. For the reasons recorded above, we allow this appeal, set aside the decision of the learned single Judge and restore that of the Lower Appellate Court. The parties are directed to appear before the trial Court on 1st of March, 1971. The Court will proceed to decide the case on merits. We make no order as to costs in this appeal.
8. Appeal allowed.
