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TMI Blog1958 (5) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... peal), entered into a compromise. Under the terms of the compromise, the vendees admitted that they had received ₹ 1,700 from defendants 8 to 11 and that defendants 8 to 11 agreed to pay the balance of the consideration, amounting to ₹ 35,911 on the 27th April, 1951. It was further agreed that on the payment of the said amount, they should get possession through Court. As the amount agreed to be paid was in excess of the pecuniary jurisdiction of the Court of the Subordinate Judge, they filed the compromise deed in the Court of the District Judge and on the basis of the said compromise, the District Judge made a decree dated January 23, 1951. It was provided in the decree that in case defendants 8 to 11 failed to pay the balance to the vendees on April 27, 1951, the suit should stand dismissed and that if the said balance was paid on that date, the vendees should deliver possession of the land in dispute to them. Defendants 8 to 11 deposited the balance of ₹ 35,911 on April 23, 1951, and got possession of the land on May 17, 1951. 3. Before the said defendants (8 to 11) deposited the amount in Court under the terms of the compromise decree, the respondents herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special leave of this Court. 6. The learned Counsel for the appellants raises the following two contentions before us : (1) Section 28 of the Pre-emption Act indicates that a property can be divided between equal preemptors in terms of section 17 of the Pre-emption Act only when both the suits are pending before the Court at the time of the passing of the decree; (2) the appellants exercised their right of pre-emption by obtaining a decree or at any rate when they deposited the money payable under the decree and thereby got themselves substituted in place of the original vendees and thereafter, the plaintiffs can succeed only by proving their superior right to them. The learned Counsel for the respondents countered the aforesaid argument by stating that the plaintiffs, being preemptors of equal degree, have got a statutory right under section 17 of the Pre-emption Act to share the land with the appellants, and the appellants, having been substituted in place of the original vendees pendente lite, are hit by the doctrine of lis pendens and therefore, they cannot claim higher rights than those possessed by the original vendees at the time of the filing of the suit. 7. Before attemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided cases have recognized that this superior right must subsist at the time the preemptor exercises his right and that that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival preemptor with preferential or equal right. To summarize : (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The preemptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase, i.e., the preemptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property or urban immovable property, in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be. Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the chaupal or other public place of the village, town or place in which the land or property is situate." Section 20 : "The right of pre-emption of any person shall be extinguished unless such person shall, within the period of three months from the date on which the notice under section 19 is duly given or within such further period not exceeding one year from such date as the court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of pre-emption. Such notice shall state whether the preemptor accepts the price or amount due on the footing of the mortgage as correct or not, and if not, what sum he is willing to pay." " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-emption as existed before the Act. They provide a convenient and effective procedure for disposing of together different suits, arising out of the same transaction, to avoid conflict of decisions, to fix the order of priority for the exercise of their rights and also to regulate the distribution of the pre-empted land between rival preemptors. 15. The provisions do not in any way enable the preemptor to exercise his right without establishing his superior right over the vendee or the person substituted in his place or to prevent the vendor or the vendee, by legitimate means, to defeat his right by getting substituted in place of the vendee a preemptor with a superior right to or an equal right with that of the plaintiff. 16. Nor can we accept the argument of the learned counsel for the appellants that section 28 precludes the Court from giving a decree for pre-emption in a case where the two suits were not joined together but one of the suits was decreed separately. Section 28 enacts a convenient procedure, but it cannot affect the substantiative rights of the parties. We do not see that, if the plaintiffs were entitled to a right of pre-emption, they would have lost it by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to the original sale. The Full Bench held that the doctrine of lis pendens applied to pre-emption suits; but in that case, the re-sale in question did not conflict with the doctrine of lis pendens. Bhide J. gave the reason for the said conclusion at page 272 thus : "All that the vendee does in such a case is to take the bargain in the assertion of his pre-existing pre-emptive right, and hence the sale does not offend against the doctrine of lis pendens." 19. Another Full Bench of the Lahore High Court accepted and followed the aforesaid doctrine in Mt. Sant Kaur v. Teja Singh I.L.R. [1946] Lah. 467. In that case, pending the suit for pre-emption, the vendee sold the land purchased by him to a person in recognition of a superior right of pre-emption. Thereafter, the second purchaser was brought on record and was added as a defendant to the suit. At the time of the purchase by the person having a superior right of pre-emption, his right to enforce it was barred by limitation. The High Court held that that circumstance made a difference in the application of the rule of lis pendens. The distinction between the two categories of cases was brought out in bold reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull Bench of the Lahore High Court in Mohammad Sadiq v. Ghasi Ram A.I.R. 1946 Lah. 322. There, before the institution of the suit for pre-emption, an agreement to sell the property had been executed by the vendee in favour of another prospective preemptor with an equal degree of right of pre-emption; subsequent to the institution of the suit, in pursuance of the agreement, a sale deed had been executed and registered in the latter's favour, after the expiry of the limitation for a suit to enforce his own pre-emptive right. The Full Bench held that the doctrine of lis pendens applied to the case. The principle underlying this decision is the same as that in Mt. Sant Kaur v. Teja Singh I.L.R. [1946] Lah. 467, where the barred right was treated as a non-existent right. The same view was restated by another Full Bench of the East Punjab High Court in Wazir Ali Khan v. Zahir Ahmad Khan, At p. 195, the learned Judges observed : "It is settled law that unless a transfer pendente lite can be held to be a transfer in recognition of a subsisting pre-emptive right, the rule of lis pendens applies and the transferee takes the property subject to the result of the suit during the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the suit land, at any rate, when they took possession of the land pursuant to the terms of the decree, after depositing in Court the balance of the amount due to the vendors. 24. We shall briefly touch upon another argument of the learned Counsel for the appellants, namely, that the compromise decree obtained by them, whereunder their right of pre-emption was recognized, clothed them with the title to the property so as to deprive the plaintiffs of the equal right of pre-emption. The right of pre-emption can be effectively exercised or enforced only when the preemptor has been substituted by the vendee in the original bargain of sale. A conditional decree, such as that with which we are concerned, whereunder a preemptor gets possession only if he pays a specified amount within a prescribed time and which also provides for the dismissal of the suit in case the condition is not complied with, cannot obviously bring about the substitution of the decree-holder in place of the vendee before the condition is complied with. Such a substitution takes effect only when the decree-holder complies with the condition and takes possession of the land. 25. The decision of the Judicial Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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