D.K. Mahajan, J.
1. This order will dispose of R.S. As. Nos. 510, 511 and 512 of 1958.
2. On the 31st of May, 1956, Aftab Rai, by means of four sale deeds sold four pieces of agricultural land, the details of which are set out hereunder:--
Kanals. Marias. To whom sold. Sale price.Rs. Np.1. 36 00. Gurdev Singh. 2400.00.2. 157 OS. Gurnam Singh. 10000.00.3. 158 01. Mehar Singh& GurcharanSingh. 10000.00.4. 174 17. Amir Singh. 10000.00
The three sales to Gurnam Singh, Mehar Singh and another and Amir Singh were pre-empted by Gurdev Singh, Ram Singh and Jodh Singh. The suits were filed on the 23th of May 1957. Before the institution of the suits, the respective vendees transferred by exchange about two Kanals out of the land purchased, which is the subject matter of the suits for pre-emption, with persons who are owners in the village and in lieu thereof got a little less than two Kanals of land.
The defence set up to the suits was that by reason of aforesaid exchanges, the defendants hadacquired equal status with the pre-emptors and thus the suits for pre-emption were liable to fail RS. the pre-emptors' status had ceased to be superior to that of the defendant vendees. The trial Court decreed all the suits as it came to the conclusion that there was DO exchange in fact. On appeal by the defendant vendees, the learned Additional District Judge after admitting additional evidence held that the exchanges in question were valid exchanges and therefore the defendant vendees bud acquired equal status with that of the pre-emptors with the result that the suits for preemption would fail. He accordingly allowed the appeals and dismissed the suits. Dissatisfied with this decision, the pre-emptors have preferred the present second appeals to this Court.
3. The contention of Mr. Faqir Chand Mital, the learned counsel for the appellants in R. S. A. No. 511 of 1958 which has been adopted by Mr. H. S. Gujral in R. S. A. Nos. 510 and 512 of 1958, is that by exchanging part of the property sold, a vendee cannot be held to have acquired a better or equal status with the pre-emptors, because what he acquires by exchange forms part of the preempted property and as such does not confer any right equal or superior to that of the pre-emptor.
4. After hearing the learned counsel for the parties I am of the view that the contention of the learned counsel is sound. It is well settled that the right of pre-emption is a right of substitution. The decree in a suit for pre-emption substitutes the pre-emptor in the place of the vendee in a transaction of sale. It has been said more often than once that the effect of such a decree is as if the name of the vendees is rubbed out of the sale deed and that of the pre-emptor is substituted in its place.
The question that arises for determination to the present case is what is the effect if part of the property sold, which is the subject-matter of the suit for pre-emption, is exchanged, the object of the exchange being to defeat the pre-emptors suit on the plea that by reason of the exchange the vendee has acquired an equal status with the pre-emptor. It is elementary that the property acquired by exchange is substituted for the property given in exchange.
In other words in the instant case the property acquired by exchange in lieu of part of the property purchased by the vendee will form part of the property acquired under the sale. What is being pre-empted is the sale. What forms part of tin sale will pass on to the pre-emptor on his obtaining the pre-emption decree. The position here is in no way better than In the case of a person Who acquires by two sale deeds property in a Village. Both these sales are pre-empted by a person having a superior right of pre-emption by two separate suits.
But the vendee sets up the sale in the other Suit and vice versa in defence on the ground that by reason of that sale he holds an equal status with the pre-emptor. This defence will be of no avail and the pre-emptor will succeed the property on the: basis of which the defence, is based being itself in jeopardy. The reported decisions on whichMr. Gokal Chand Mital relies in support of his contention, namely that by obtaining by exchange property in the village, the vendee acquires equal status with the pre-emptor and thus can defeat the pre-emptor are all distinguishable.
In those cases the land exchanged did not form part of the land sold and pre-empted. The exchange which clothed the vendee with an equal status was an independent transaction. The suit for pre-emption did not and could not wipe it out. No authority bearing on the point has been cited at the bar by the learned counsel for the respondents. It is also well settled that a vendee can defeat a pre-emptor by all legitimate means.
The modes usually adopted are either by transferring the entire bargain to a person having equal or better qualifications for pre-emption to those of the pre-emptor or by the vendee acquiring an equal or better qualification than possessed by the pre-emptor. By the device adopted in the present case, it cannot be said that either one or the other of the modes has been adopted. It is inconceivable that the vendee can acquire a better, status by the very transaction, which is the subject-matter of a suit for pre-emption. The bargain cannot be split up by the vendee for his own benefit.
5. After giving the matter my careful consideration and after viewing it in all its aspects, I am firmly of the view that by the device adopted by the vendee in the present case, the plaintiffs suit for pre-emption cannot be defeated.
6. For the reasons given above, the appeals preferred by the pre-emptors are allowed, the judgments and the decrees of the Additional District Judge are set aside and plaintiffs' suits are decreed.
7. In view of the fact that this matter was not so argued before the Additional District Judge, I leave the parties to bear their own costs throughout.