# Adityan v. J(andaswanii

- **Citation:** [1959] 1 S.C.R. 878
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 255of1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/adityan-v-j-andaswanii-1564
- **Pages:** 17

## Headnote

•
878
SUPREME COURT REPORTS
[1959]
Adityan
v.
J(andaswanii
such candidature. Hence, he said, s. 82{b) required
that they should have been made parties to the petition.
W' e are of opinion that when s. 82(b) talks of
allegations of corrupt practice against a candidate it
means allegations that a candidate has committed a
corrupt practice. Allegations can hardly be said to
be "against" one unless they impute some default to
him. So allegations of corrupt practice against a
candidate must mean that the candidate was guilty of
corrupt practice.
vVe are also unable to appreciate
how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an
allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any
corrupt practice, for we have earlier shown that the
corrupt practice consists in the giving of the gift and
not in the acceptance of it.
Sarkar J.
¥ay ao.
In the result this appeal fails and it is dismissed
with costs.
Appeal dismissed,.
BISHAN SINGH & OTHERS
v.
KHAZAN SINGH & ANOTHER
(S .. R. DAs C. J., BHAGWATI, S. K. DAS and SUBBA
RAO JJ.) ·
Pre-emption, nature of the right-Pre-emptor filing suit and
obtaining decree-Second pre-emptor of equal degree filing suit for·
pre-emption-Fii'st pre-emptor depositing pwchase money and obtaining possession-If suit of second pre-emptor can succeed-Lis
pendens-Scope-Punjab Pre-emption
Act (Pun. I of I9I3),
ss .. r7, 28.
Upon the sale of certain village land the appellants filed a
suit for pre-emption, and a compromise decree \Vas passed allO\Ving pre-emption provided the appellants deposited the purchase
• amount by a certain date. The appellants deposited the am~unt
and got posses.sion of the land.
Before the appellants deposited
•
S.C.R.
SUPREME COURT REPORTS
879
the amount, the respondents who were pre-emptors of an equal
degree, filed a suit to enforce their right of pre-emption. The
appellants contende,d that the land could be divided between
two equal pre-emptors only when both the suits were pending
before the court at the time of the passing of the decree, and
that the appellants having obtained the decree and paid the
amount got substituted in place of the venclees and the respondents could succeed only by establishing a superior right of
pre-emption. The respondents countered that they had a statutory right under s. 17 of the Punjab Pre-emption Act to share
the land with the appellants and that the appellants, having
been substituted in place of the vendees pendente lite, were hit
by the doctrine of lis pendens and could not claim a higher right
than the venclees :
Held, that the respondents' suit could not succeed as they
did not have a superior right of pre-emption over the appellants
who had become substitutedin place of the vendees upon payment of the purchase money under their decree.
A pre-emptor has two rights: (1) inherent or primary right
to the offer of a thing about to be sold and (z) a secondary or
remedial right to follow the thing sold.
The secondary right
is simply a right of substitution in place of the original
vendee.
Dhani Nath v. Budhu, 136 P. R. 1894 at p. 5n and Gobind
Dayal v. Inayatullah, (1885) I.L.R. 7 All. 775, followed.
In a suit for pre-emption the plaintiff must show that his
right is superior to that of the vendee and that it subsists at the
time he exercises his right. This right is lost if before he exercises
it another person with an equal or superior right has been
substituted in place of the original vendee. The Punjab Preemption Act defines the right of pre-emption and provides a procedure for enforcing it. It does not enlarge the content of this
right nor does it introduce any change in the incidents of the
right. Section 28 of the Act does not preclude the Court from
giving a decree for pre-emption in a case where the suits are
not joined together and one of the suits has been decreed separately.
The doctrine of lis pendens applies only to a transfer
pendente lite

## Text

•
878
SUPREME COURT REPORTS
[1959]
Adityan
v.
J(andaswanii
such candidature. Hence, he said, s. 82{b) required
that they should have been made parties to the petition.
W' e are of opinion that when s. 82(b) talks of
allegations of corrupt practice against a candidate it
means allegations that a candidate has committed a
corrupt practice. Allegations can hardly be said to
be "against" one unless they impute some default to
him. So allegations of corrupt practice against a
candidate must mean that the candidate was guilty of
corrupt practice.
vVe are also unable to appreciate
how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an
allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any
corrupt practice, for we have earlier shown that the
corrupt practice consists in the giving of the gift and
not in the acceptance of it.
Sarkar J.
¥ay ao.
In the result this appeal fails and it is dismissed
with costs.
Appeal dismissed,.
BISHAN SINGH & OTHERS
v.
KHAZAN SINGH & ANOTHER
(S .. R. DAs C. J., BHAGWATI, S. K. DAS and SUBBA
RAO JJ.) ·
Pre-emption, nature of the right-Pre-emptor filing suit and
obtaining decree-Second pre-emptor of equal degree filing suit for·
pre-emption-Fii'st pre-emptor depositing pwchase money and obtaining possession-If suit of second pre-emptor can succeed-Lis
pendens-Scope-Punjab Pre-emption
Act (Pun. I of I9I3),
ss .. r7, 28.
Upon the sale of certain village land the appellants filed a
suit for pre-emption, and a compromise decree \Vas passed allO\Ving pre-emption provided the appellants deposited the purchase
• amount by a certain date. The appellants deposited the am~unt
and got posses.sion of the land.
Before the appellants deposited
•
S.C.R.
SUPREME COURT REPORTS
879
the amount, the respondents who were pre-emptors of an equal
degree, filed a suit to enforce their right of pre-emption. The
appellants contende,d that the land could be divided between
two equal pre-emptors only when both the suits were pending
before the court at the time of the passing of the decree, and
that the appellants having obtained the decree and paid the
amount got substituted in place of the venclees and the respondents could succeed only by establishing a superior right of
pre-emption. The respondents countered that they had a statutory right under s. 17 of the Punjab Pre-emption Act to share
the land with the appellants and that the appellants, having
been substituted in place of the vendees pendente lite, were hit
by the doctrine of lis pendens and could not claim a higher right
than the venclees :
Held, that the respondents' suit could not succeed as they
did not have a superior right of pre-emption over the appellants
who had become substitutedin place of the vendees upon payment of the purchase money under their decree.
A pre-emptor has two rights: (1) inherent or primary right
to the offer of a thing about to be sold and (z) a secondary or
remedial right to follow the thing sold.
The secondary right
is simply a right of substitution in place of the original
vendee.
Dhani Nath v. Budhu, 136 P. R. 1894 at p. 5n and Gobind
Dayal v. Inayatullah, (1885) I.L.R. 7 All. 775, followed.
In a suit for pre-emption the plaintiff must show that his
right is superior to that of the vendee and that it subsists at the
time he exercises his right. This right is lost if before he exercises
it another person with an equal or superior right has been
substituted in place of the original vendee. The Punjab Preemption Act defines the right of pre-emption and provides a procedure for enforcing it. It does not enlarge the content of this
right nor does it introduce any change in the incidents of the
right. Section 28 of the Act does not preclude the Court from
giving a decree for pre-emption in a case where the suits are
not joined together and one of the suits has been decreed separately.
The doctrine of lis pendens applies only to a transfer
pendente lite, but it cannot affect a pre-existing right. If the
sale is a transfer in recognition of a pre-exisijng and subsisting right, it would not be affected by the doctrine, as the transfer
does not create a new right pendmte lite but if the pre-existing
right became unenforceable by reason of limitation or otherwise,
the transfer, though ostensibly made in recognition of such a
right, in fact creates only a new right pendente lite. The appellants' right of pre-emption was subsisting and was not barred by
limitation at the time of the transfer in their favour a-s they had.
filed a suit and had obtained a decree and the coercive
II2
Bishrm Singh
v.
Khazan Singh
•
Bishan Singh
v.
Khazan Singh
880
SUPR:reM:E1 COURT RE1PORTS
[1959)
process was still in operation. Consequently the appellants
were not hit by the doctrine of lis pendens and they acquired an
indefeasible right to the land when they took possession of
it after depositing the purchase money in court.
Mool Chandv. Ganga Jal, (1930) LL.R. II Lah. 258, Mt. Sant
Kaur v. Teja Singh, LL.R. [1946] Lah. 467, Mohammad Sadhiq v.
Ghasi Ram, A.LR. 1946 Lah. 322 and Wazir Ali Khan v. Zahir
Ahmad Khan, A.LR. 1949 East Punj. 193, approved.
Kundan Lal. v. Amar Singh, A.LR. 1927 All. 664, disapproved.
The right of pre-emption is effectively exercised or enforced
only when the pre-emptor has been substituted for the vendee.
A couditional decree whereunder the pre-emptor gets possession
only if he pays a specified amount within a prescriqed time and
which also provides for the dismissal of the suit in case the condition is not fulfilled, cannot bring ·about the substitution of the
decree holder for the vendee before the condition is fulfilled.
Such substitution takes effect only when the decree holcijer fulfils the condition and takes possession of the land.
Deonandan Prashad Singh v. Ramdhari Chowdhri, (1916) L. R.
44 L A. So, followed.
·
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
255of1954.
Appeal by Special Leave from the judgment and
decree dated April 29, 1953, of the former Pepsu High
Court in R. S. A. Nos. 57 and 130 of 1952, arising out
of the judgmen_t and decree dated March 8, 1952, of
the Court of Addl. Dist. Judge, Faridkot, in Civil
Appeal• No. 10 of 1952, against the judgment. and
decree dated December 4, 1951, of the Court of SubJ udge II Class, Faridkot, in File No. 13 of 1951.
Jagan Nath Kaushal and K. L. Mehta, for the appellant.
Kapur Chand Puri and Tarachand Brijmohan Lal,
for respondents Nos. 1 to 3.
1958.
May 20. The Judgment of the Court was
delivered by
Subba Rao J.
SuBBA RAO J.-This appeal by Special Leave
against the judgment and decree of the High Court of
Patiala and East Punjab States Union raises an
• "interesting question pertaining to the Law of Preemption.
•
..
•
•
•
S.C.R.
SUPREME COURT REPORTS
881
The material facts are not in dispute and may be
r958
briefly stated: The dispute relates to a land measuring 179 kanals and 2 marlas, situate in village WanBish•:. Singh
derjatana. On August 26, 1949, defendants 3 to 7 sold
Khazan Singh
the said land to defendants 1 and 2 for a consideration of Rs. 37,611. On August 26, 1950, defendants
Subba Rao J.
8 to 11 instituted a suit, Suit No. 231 of 1950 (Exhibit
P. 26/1) in the Court of the Subordinate Judge,
II Class, ]'aridkot, to pre-empt the said sale on the
ground, among others, that they had a right of preemption. On January 6, 1951, the vendees, i.e., defendants 1 and 2, and the plaintiffs therein, i.e., defendants
8 to 11 (appellants in the present appeal), entered into
a compromise. Under the terms of the compromise,
the vendees admitted that they had received Rs.1,700
from <ilefendants 8 to 11 and that defendants 8 to 11
agreed to pay the balance of the consideration,
amounting to Rs. 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 b<:tsis 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 Rs. 35,911 on April 23, 1951, and got
possession of the land on May 17, 1951. ,
Before the said defendants (8 to 11) deposited the
amount in Court under the terms of-the compromise
decree, the respondents herein, claiming to be owners
of land in the same patti, filed Suit No. 13 of 1951 in
the Court of the Subordinate Judge, II Class, Faridkot,
to enforce their right 'of pre-emption. To that suit
the original vendors were impleaded as defepdants 3
to 7, the vendees as defendants 1 and 2 and the plain-· •
tiffs in Suit No. 231 of 1950 as defendants 8 to 11 .
882
SUPREME COURT REPORTS
[1959)
r958
Defendants 8 to 11 contested the suit, inter alia, on
the grounds that the plaintiffs had no right of preBishan Singh
·
·
h
f h ·
h
h
v.
emption superior to t at o t eirs, t at t e suit was
Khazan sin:;h barred by limitation and that the whole of the sale
consideration had been fixed in good faith and paid.
Subba Rao J.
The learned Subordinate Judge found all the issues
in favour of defendants 8 to 11 and dismissed the suit.
On the main issue he found that the said defendants,
by obtaining a decree for pre-emption before the rival
claimants had filed their suit, had become vendees
through Court and so the plaintiffs could not succeed
unless they had a superior right.
The plaintiffs preferred an appeal to the Additional
District Judge, Faridkot, against the said decree. The
District Judge held that the plaintiffs and defendants
8 to 11 had equal rights of pre-emption and· were
entitled to share the sale in the proportion of 3/7 and
4/7 respectively on payment of the proportionate
amount of the consideration. On the main question,
he took the view that defendants 8 to 11 did not exercise their right of pre-emption when the present suit
was instituted for the reason that by the date of the
filing of the suit they had not deposited the ]JUrchase
money in Court. Both the parties filed Second Appeals
against the decision of the District Judge in the High
Court of Patiala questioning that part of the decree
which went against them. The High Court upheld
that part of the decree of the learned District Judge
holding that the plaintiffs were entitled to a share in
the suit property but remanded the suit to the District
Judge to give his findings on the following two
questions: (1) What was the amount paid by defendants 8 to 11 to the original vendees and whether
they paid it in good faith ; (2) Whether the case would
come under s~ 17-C, cl. (e) of the Punjab Pre-emption
Act (hereinafter to be referred to as the Act).
As the
High Court refused to certify that the case was a fit
one for appeal to the Supreme Court, defendants 8 to
11 preferred the above appeal by obtaining special
leave of this Court.
• · The learned Counsel for the appellants raises the
following t'!o contentions before us: (1) Section 28 of
•
..
•
•
S.C.R.
SUPREME COURT REPORTS
883
the Pre-emption Act indicates that a property can be
r958
divided between equal pre-emptors in terms of s. 17 of
Bishan Singh
the Pre-emption Act only when both the suits are
v.
pending before the Court at the time of the passing of
10.azan Singh
the decree ; (2) the appellants exercised their right of
pre-emption by obtaining a decree or at any rate when
Subbci Rao J.
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 pre-emptors of equal degree, have got a statutory right under s. 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.
Before attempting to give a satisfactory answer to
the question raised, it would be convenient at the outset to notice and define the material incidents of the
right of pre-emption. A concise but lucid statement
of the law is given by Plowden J. in· Dhani Nath v.
Budhu (1) thus:
"A preferential right to acquire land, belonging
to another person upon the occasion of a transfer by
the latter, does not appear to me to be either a right
to or a right in that land. It is jus ad rem alienum
acquirendum and not a jus in re aliena .. ....... A right to
the offer of a thing about to be sold is not identical
with a right to the thing itself, and that is the primary
right of the pre-emptor. The secondary right is to
follow the thing sold, when sold withou·t the proper
offer to the pre-emptor, and to acquire it, if he thinks
fit, in spite of the sale, made in disregard of his
preferential right."
The aforesaid passage indicates that a pre-emptor has
two rights: (1) inherent or primary right, i.e:, a right· •
{I) I36 P.R. I894 at p. 511,
884
SUPREME COURT REPORTS
[1959]
r958
to the offer of a thing about to be sold and (2) secondary or remedial right to follow the thing sold.
Bishan Si"ngh
1\,1" h
d
1
•
' Q b' d
v.
ma moo J. in his c assic Judgment 111 o in Dayal
Khazan Singh
v. lnayatullah (')explained the scope of the secondary
right in the following terms :
Subba Roo J.
"It (right of pre-emption) is simply a right of substitution, entitling the pre-emptor, by means of a legal
incident to which sale itself was subject, to stand in
the shoes of the vendee in respect of all the rights and
obligations arising from the sale, under which he
derived his title. It is, in effect, as if in a sale deed
the vendee's name were rubbed out and pre-emptor's
name inserted in its place".
The doctrine adumbrated by the learned Judge,
namely, the secondary right of pre-emption is simply a
right of substitution in place of the original vendee,
has been accepted and followed by subsequent
decisions.
The general law of pre-emption does not recognize
any right to claim a share in the property sold when
there are rival claimants. It is well-established that
the right of pre-emption is a right to acquire the whole
of the property sold in preference to other persons (See
Mool Chand v. Ganga Jal(')).
The plaintiff is bound to show not only that his
right is as good as that of the vendee but that it is
superior to that of the vendee. Decided cases have
recognized that this superior right must subsist at the
time the pre-emptor 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.
(!) (•885) I.L.R. 7 All. 775, 809.
(2) (1930) I.L.R. 11 Lah. 258, 273.
•
•
•
..
S.C.R.
SUPREME COURT REPORTS
885
This right is called the primary or inherent right. (2)
I958
The pre-emptor has a secondary right or a remedial
Bishan Singh
right to follow the thing sold. (3) It is a right of subv.
stitution but not of re-purchase, i. e., the pre-emptor
J{hazan SinKh
takes the entire bargain and steps into the shoes of the
original vendee. (4) It is a right to acquire the whole
Subba Rao J.
of the property sold and not a share of the property
sold. (5) Preference being the essence of the right, the
plaintiff must have a superior right to that of the
vendee or the person substituted in his place. (6) The
right being a very weak right, it can be defeated by all
legitimate methods, such as the vendee allowing the
claimant of a superior or equal right being substituted
in his place.
The next question is whether this right is modified
or otherwise enlarged by the provisions of the Act.
Relevant provisions of the Act, material to the present
purpose, read thus:
Section 4: "The right of pre-emption shall mean
the right of a person to acquire agricultural land or ·
village immovable property or urban immovable property in preference to other persons, and it arises in
respect of such land only in the case of sales. and in
respect ·of such property only in the case of sales or of
foreclosures of the right to redeem such property".
Section 13: "Whenever according to the provisions of this Act, a right of pre-emption vests in any
class or group of persons the right may be exercised
by all the members of such class or group jointly, and,
if not exercised by them all jointly, by any two or
more of them jointly, and, if not exercised by any two
or more of them jointly, by them severally".
Section 17: "Where several pre-emptors are found
by the Court to be equally entitled to the right of preemption, the said right shall be exercise<ll,-
(a) if they claim as co-sharers, in proportion
among themselves to the shares they already hold in
the land or property;
(b) if they claim as heirs, whether co.sharers or
not, in proportion among themselves to the shares in
which but for such sale, they would inherit tlie land or' •
property in the event of the vendor's .decease without
other heirs ;
·
•
886
SUPREME COURT REPORTS
[1959]
z958
(c) if they claim as owners of the estate or recognised sub-division thereof, in proportion among themsekes
Bishan Singh
v.
to the shares which they would take if the land or
Khazan Singh property were common land in the estate or the subdivision, as the case may be;
Subba Rao J.
(d) if they claim as occupancy tenants, in proportion among themselves to the areas respectively held
by them in occupancy right;
(e) in any other case, by such pre-emptors in equal
shares."
Section 19: "When any person proposes to sell any
agricultural land or village immovable property or
urban immovable property or to foreclose the right to
redeem any village immovable property or urban
immovable property, in respect of which any persons
have a right of pre-emption, he may give notica 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 sh all 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 pre-emptor 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."
"When the Court is satisfied that the said notice has
been duly served on the vendor or mortgagee the
.rroceediqgs shall be filed.'"
•
Section 28 :· "When more suits than one arising out
of the same.sale-or foreclosure are pending, the plaintiff
•
S.C.R.
SUPREME COURT REPORTS
887
in each suit shall be joined as defendant in each of
the other suits, and in deciding the suits the court
shall in each decree state the order in which each
claimant is entitled to exercise his right".
The Act defines the right and provides a procedure
for enforcing that right. It does not enlarge the
content of that right or introduce any change in the
incidents of that right. Section 4 embodies the preexisting law by defining the right as a right of a person
to acquire land in preference to other persons in respect of sales of agricultural lands. Section 13 · cannot
be read, as we are asked to do, as a statutory recognition of a righ.t of pre-emptors of equal degree to
exercise their rights piece-meal confined to their shares
in the land. Section 13 confers on a group of persons,
in wh"m the right of pre-emption vests, to exercise
that right either jointly or severally, that ·is to say,
either the group of persons or one of them may enforce
the right in respect of the entire sale. Section 17
regulates the distribution of pre-empted land when the
Court finds that several pre-emptors are equally entitled to the right of pre-emption. But this Section
applies only where (1) the right is yet to be exercised
and (2) the pre-emptors are found by the Court to be
equally entitled to exercise the right. The section
does not confer the right on or against a person, who
has already exerciRed the right and ceased to be a preemptor by his being legitimately substituted in place
of the original vendee. (See Mool Chand v. Ganga
Jal (1) at p. 274 and Lokha Singh v. Sermukh Singh (2 ) ).
Sections 19 and 20 prescribe the procedure for the
exercise of the primary right, while s. 28 confers a
power on the Court to join together two or more suits
arising out of the same sale, so that suitable directions
may be given in the decree in regard to t'he order in
which each claimant is entitled to exercise the right.
This section is enacted presumably to avoid conflict of
decisions and finally determine the rights of the
various claimants. The aforesaid provisions do not
materially affect the characteristics of the right of pre- .
(1) (1930) I.L.R. II Lah. 258.
(2) A.I.R. 1952 Punj. 206, 207,
II3
Bishan Singh
v.
Khazan Singh
Subba Rao].
•
Bishan Singh
v.
Khazan Singh
Subba Rao ].
•
•
888
SUPREME COURT REPORTS
[1959]
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 a void 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 pre-emptors.
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 pre-emptor
with a superior right to or an equal right with that of
the plaintiff.
Nor can we accept the argument of the learned
counsel for the appellants that s. 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 substantative 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 appellants obtaining a
decree before the plaintiffs instituted the suit, unless it
be held that the decree itself had the effect of substituting them in place of the original vendees. We cannot,
therefore, hold that the plaintiffs' suit is in any way
barred under the provisions of the Act.
This leads us to the main question in this case,
namely, whether the appellants having obtained a
consent decree on January 23, 1951, in their suit
against the vendees and having paid the amount due
under the decree and having taken delivery of the
property and. thus having got themselves substituted
in place of the original vendees, can legitimately
defeat the rights of the plaintiffs, who, by reason of
the aforesaid substitution, were only in the position of
pre-emptors of equal degree vis-a-vis the appellants
and therefore ceased to have any superior rights. The
learned Counsel for the respondents contends that the
appellants are"hit by the doctrine of lis pendens and
•
•
s:c.R.
SUPREME COURT REPORTS
889
therefore the act of substitution, which was effected
on April 23, 1951, could not be in derogation of their
right of pre-emption, which they have exercised by
filing their suit on ]'ebruary 15, 1951.
It is now
settled law in the Punjab that the rule of lis pendens
is as much applicable to a suit to enforce the right of
pre-emption as to any other suit. The principle on
which the doctrine rests is explained in the leading
case of BeUami v. Sabine (1), where the Lord Chancellor said that pendente lite neither party to the litigation can alienate ............ the property so as to affect
his opponent. In other words, the law does not allow
litigant parties, pending the litigation, to transfer
their rights to the property in dispute so as to prejudice the other party.
As a. corollary to this rule it is laid down that this
principle will not affect the right existing before the
suit. The rule, with its limitations, was considered by a
Full Bench of the Lahore High Court in JJiool Chand v.
Ganga Jal (2). In that case, during the pendency of a
pre-emption suit, the vendee sold the property which
was the subject matter of the litigation to a person
possessing a right of pre-emption equal to that of the
pre-emptor in recognition of that person's right of
pre-emption. This re-sale took place before the expiry
of the period of limitation for instituting a pre-emption
suit with respect to the original sale. The :Full Bench
held that the doctrine of lis pendens applied to preemption 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 dQes not offend
against the doctrine of lis pend ens ".
Another Full Bench of the Lahore High Court accepted and followed the aforesaid doctrine in Mt. Sant
Kaur v. Teja Singh (3). In that case, pending the suit
for pre-emption, the vendee sold the land Eurchased
(1) (1857) l De G. & J. 566; 44 E. R. 842.
•
0
(2) (1930) J.L.R. II Lah. 258, 27J.
(3) I.L.~. [1946) Lah. 467.
z958
Bishan Singh
v.
Hhazan Singh
Subba Rao].
•
890
SUPREME COURT REPORTS
[1959]
'958
by him to a person in recognition of a superior right
of pre-emption.
Thereafter, the second purchaser
Bish•:. si,,gh
was brought on record and was added as a defendant
Khazan Singh to the suit. At the time of the purchase by the person
having a superior right of pre-emption, his right to
Subba Rao J.
enforce it was barred by limitation. The High Court
held that that circumstance made a difference in the
application of the rule of lis peooens.
The distinction
between the two categories of cases was brought out
in bold relief at page 145 thus:
" Where the subsequent vendee has still the
means of coercing, by means of legal action, the original vendee into surrendering the bargain in his favour,
a surrender as a result of a private treaty, and out of
Court, in recognition of the right to compel such
surrender by means of a suit cannot propedy be
regarded as a voluntary transfer so as to attract the
application of the rule of lis pendens. The correct
way to look (Lt the matter, in a case of this kind, is to
regard the subsequent transferee as having simply
been substituted for the vendee in the original bargain
of sale. He can defend the suit on all the pleas which
he could have taken had the sale been initially in his
own favour."
"However, where the subsequent transferee has
lost the means of making use of the coercive machinery of the law to compel the vendee to surrender the
original bargain to him, a re-transfer of the property
in the former's favour cannot be looked upon as anything more than a voluntary transfer in the former's
favour of such title as he had himself acquired under
the original sale. Such transfer has not the effect of
substituting the subsequent transferee in place of the
vendee in the original bargain. Such a transferee
takes the prtiperty only subject to the result of the
suit. Even if he is impleaded as a defendant in such
suit, he cannot be regarded as anything more than a
representative-in-interest of the original vendee,
having no right to defend the suit except on the pleas
that were open to such vendee himself".
• This cas~, therefore, expressly introduces a new element in the appl.icability of the doctrine of lis pendens
.
.
•
..•
•
S.C.R.
SUPREME COURT REPORTS
891
to a 'suit to enforce the pre-emptive right. If the right
I958
of the pre-emptor of a superior or equal degree was
Bishan Singh
subsisting and enforceable by coercive process or
v.
otherwise, his purchase would be considered to be in
Khazan Singh
exercise of that pre-existing right and therefore not hit
by the doctrine of lis pendens. On the other hand, if
Subba Rao J.
he purchased the land from the original vendee after
his superior or equal right to enforce the right of preemption was barred by limitation, he would only be
in the position of a representative-in-interest of the
vendee, or to put it in other words, if his right is
barred by limitation, it would be treated as a nonexisting right. Much to the same effect was the decision of another Full Bench of the Lahore High Court
in Mohammad Sadiq v. Ghasi Ram (1).
There, before
the ill'Stitution of the suit for pre-emption, an agreement to sell the property had been executed by the
vendee in favour of another prospective pre-emptor
with an equal degree of right of pre-emption; subsequent to the institution of the suit, in pursuance of
the agreement, a sale deed hf!.d 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 ]'ull 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 (2), 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 (3). 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 pendency whereof
it took place".
The Allahabad High Court has applied the doctrine of
lis pendens to a suit for pre-emption ignoring the
limitation implicit in the doctrine that it cannot affect· •
(1) A.LR. 1946 Lah. 322.
(2) 1.L.R. [I!j46] Lah. 467.
(3) A.I.R. 1949 East Punj. 193.
Bishan Singh
v.
Kha~an Singh
Subba Rao j.
•
892
SUPREME COURT REPORTS
[1959]
a pre-existing right.
(See Kundan Lal v. Amar
Singh (1)). We accept the view expressed by the Lahore
High Court and East Punjab High Court in preference
to that of the Allahabad High Court.
In view of the aforesaid four Full Bench decisionsthree of the Lahore High Court and the fourth of the
East Punjab High Court-a further consideration of
the case is unnecessary.
The settled law in the
Punjab may be summarized thus:
The doctrine of lis pendens applies only to a transfer
pendente lite, but it cannot affect a pre-existing right.
If the sale is a transfer in recognition of a pre-existing and subsisting right, it would not be affected by
the doctrine, as the said transfer did not create new
right pendente lite ; but if the pre-existing right
became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made
in recognition of such a right, in fact created only a
new right pendente lite.
Even so, it is contended that the right of the appellants to enforce their right of pre-emption was barred
by limitation at the time of the transfer in their
favour and therefore the transfer would be hit by the 1
doctrine of lis pendens.
This arglrnient ignores th6
admitted facts of the case.
The material facts may
be recapitulated: Defendants 3 to 7 sold the land in
dispute to defendants 1 and 2 on August 26, 1949, and
the sale deed was registered on February 15, 1950.
The appellants instituted their suit t.o pre-empt the
said sale on August 26, 1950, and obtained a compromise decree on January 23, 1951. They deposited the
balance of the amount payable on April 23, 1951, and
took possession of the land on May 17, 1951. It would
be seen from .the aforesaid/ facts that the appellants'
right of pre-emption was clearly subsisting at the time
when the appellants deposited the amount and took
possession of the land, for they not only filed the suit
but obtained a decree therein and complied with the
terms of the decree within the time prescribed there-
• ·under. 'fhe coercive process was still in operation. If
so, it follows that the appellants are not hit by the
(r) A.I.F. 1927°All. 664.
•
•
r
l·
•
S.C.R.
SUPREME COURT REPORTS
893
doctrine of lis pendens and they acqu~red an indefeasible right 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.
W ~ shall briefly touch . upon another argument of
the learned Counsel for the appellants,/ namely, tha·t
the compromise decree obtained by them, whereunder
their right of pre-emption was recognized, clothed
them with the title to the prqperty 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 pre-emptor 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 pre-emptor 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 sub.stitution of the decreeholder in place of the vendeelbefore 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.
The decision of the Judicial Committee in Deonandan Prashad Singh v. Ramdhari Ohowdhri (1) throws
considerable light on the question whether in similar
circumstances the pre-emptor can be deemed to have
been substituted in the place of the original vendee.
There the Subordinate Judge made a pre-emption
decree under which the pre-emptors were in possession
from 1900 to 1904, when the decree was reversed by
the High Court and the original purchaser regained
possession . and in 1908, the Privy Council, upon
further appeal, declared the pre-emptors' right to
purchase, but at a highe:l price than decreed by the
Subordinate Judge. In 1.909 the pre-emptors paid the·
additional price and thereupon again obtained possession.
The question arose whether the pre-emptors
were not entitled to mesne profits for the perio?-
between 1904 to 1909, i.e., during the period the judg- •
(1) (1916) L. R. 44 I. A. 80.
Bishan Singh
v.
Khazan Singh
Subba Rao ].
Bishan Singh
v.
Khazan Singh
Subba Rao ] .
•
•
894
SUPREME COURT REPORTS
[1959]
me'nt of the first appellate Court was in force.
The
Privy Council held that during that period the preemptors were not 0J:1titled to mesne profits. The .reason
for that conclusion was stated at page 84 thus:
" It therefore follows that where a suit is brought
it is on payment of the purqhase-money on the specified date that the phintiff obtains possession of the property, and until that time the original purchaser retains
possession and is entitled to the rents and profits. This
was so held in the case.of Deoki.nandan v. Sri Ram (1)
and there Mahmud J. whose authority is well recognized by all, stated that it was only when the terms of the
. decree were fulfilled and enforced that the persons
having the right of pre-emption become owners of the
property, that such ownership did not vest from the
date of sale, notwithstanding success in the suit, and
that the actual substitution of the owner of the preempted property dates with possession under the
decree''.
This judgment is, therefore, a clear authority for
the position that the pre-emptor is noe substituted in
the place of the original vendee till conditions laid
down in the decree are fulfilled. We cannot, therefore,
agree with the learned Counsel that the compromise
decree itself perfected his clients' right in derogation to
that of the plaintiffs. But as we have held that the
appellants complied with the conditions laid down in
the compromise decree, they were substituted in the
place of the vendee before the present suit was disposed of. In the aforesaid view, the other questions
raised by the appellants do not arise for considerat.i-0n.
In the result, the appeal is allowed and the si.it is
dismissed with costs throughout.
•
Appeal allowed .
(1) (1889) !· L. R. 12 AIL 234.
..
•
•