1. The short point for decision in this case is whether it is open to a pre-emptor to exclude another pre-emptor by entering into an agreement with a stranger vendee to purchase only a part of the property in respect of which the right of pre-emption exists. It appears that on 6-2-1944 one Bishan Singh sold a plot of land measuring 17 bighas 9 biswas and 14 biswansis to Bhag Singh for a sum of Rs. 9,500. On 18-8-1944 Kapur Singh and Bahadur Singh, two collaterals of the vendor, purchased a portion of this land (measuring 9 bighas 3 biswas and 19 biswansis) for a sum of Rs. 5,000 in assertion of their right of pre-emption. The sale in favour Of Bhag Singh gave rise to three suils for possession by pre-emption each of which was brought by one or more of the collaterals of the vendor. The first suit was brought by Mangal Singh on 15-8-1944; the second by Mai Singh on 20-10-1944 and the third by Kapur Singh and Bahadur Singh on 9-1-1945. The plaintiffs in the last case alleged that as soon as they were informed of the sale in favour of Bhag Singh, they threatened to exercise, their right of pre-emption. The vendee promptly transferred 9 bighas 3 biswas and 19 biswansis to them promising to transfer the remaining land in due course. He failed to carry out his promise and the plaintiffs were accordingly reluctantly compelled to sue for possession of 8 bighas 5 biswas and 15 biswansis. The trial Court held that the right of pre-emption of each of the three sets of pre-emptors was equal, that Kapur Singh and Bahadur Singh obtained a portion of the land in exercise of their right of pre-emption, that this sale was binding on Mangal Singh and Mai Singh and that the suit brought by Kapur Singh and Bahadur Singh was an afterthought having been instituted with the object of injuring the rights of the other pre-emptors. On these findings the trial Court dismissed the suit of Kapur Singh and Bahadur Singh and passed a decree for possession by pre-emption of 8 bighas 5 biswas and IS biswansis in equal shares in favour of Mangal Singh and Mai Singh. It was ordered that if either of the two pre-emptors did not deposit his share of the pre-emption money, within the time fixed by the Court, the other pre-emptor would be at liberty to deposit the money and obtain a, decree, for the entire land. The learned District Judge confirmed this order in appeal making a slight alteration in the amount which the pre-emptors were required to pay Mangal Singh has come to this Court in second appeal and the question for this Court is whether the Courts below, have come to a correct determination in point of law.
2. The only question which requires decision in this case is whether the Courts below were justified in dismissing the appellant's suit in respect of the land which had been sold to Kapur Singh and Bahadur Singh.
3. It is an accepted proposition of law that the right of pre-emption is not a right of repurchase either from the vendor or the vendee, involving a new contract of sale, but simply a right of substitution entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to standi in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It follows as a consequence that ordinarily the pre-emptor must take over the whole and not only a part of the property which whioh he is entitled to pre-empt.
4. Mr. M.L. Sethi, who appears for the appellant in this case contends that as Kapur Singh and Bahadur Singh, who had a right to pre-empt the whole of the property, agreed to purchase only a part of it leaving the rest with the vendee who was a stranger, it was not open to them to assert the right of pre-emption in respect of the whole. On the other hand, by abandoning their right to the whole they had also abandoned' their right to the part. The transaction into which they had entered was not one of possession by pre-emption. It was really a new transaction involving a new contract of sale between the vendee and the pre-emptor. It could not by any stretch of meaning be regarded as having been entered into in exercise of the right of pre-emption. My attention has been invited to a number of authorities which endorse the proposition that a pre-emptor, who purchases only a part of the property, must run the risk of losing even that portion if another pre-emptor chooses to take over the bargain as it stood at the time of the sale.
5. The first of these authorities is reported in Fateh Chand v. Nihal Singh (1980)106 P.R.1880. In this case, one Sher Singh sold half a house to Devi Ditta on 23rd March 1878, and a few days afterwards Devi Ditta sold a portion of this house to Nihal Singh. On 2lst January 1879, the plaintiff sued for preemption of the half house sold to Devi Ditta and the Courts gave him a decree except as regards the portion subsequently resold to Nihal Singh on the ground that although the plaintiff had a superior right to Devi Ditta, his right was inferior to that of Nihal Singh whose house adjoined that in dispute. A Division Bench of the Punjab Chief Court accepted the plaintiff's appeal. It held that the right of pre-emption is a right to take over a sale bargain in its entirety, and if a pre-emptor suffers another person to purchase, and is content to accept a derivative title from him with respect to a portion only of the premises sold, being unwilling to buy the rest, he must be held to abide the consequences of losing even that portion, if another person having a superior right to that of the vendor, claims to assert his right to take over the original bargain as a whole. The learned Judges expressed the view that in such a case the sub-purchaser is estopped from asserting the right he has once waived of acquiring the property sold against another person whose claim to pre-emption, though inferior to his own, is still superior to that of the first purchaser. They held further that the original contract of sale was one and indivisible and in such a case it was not open to the pre-emptor to have the bargain divided. Having once waived his right with respect to the bargain as a whole he was not at liberty afterwards to assert it with respect to a part.
6. The next authority on which reliance is placed is reported in Ralla v. Dayal (1903)34 P.R.1903. In this case, a pre-emptor with superior rights agreed with a vendee, who was a stranger, that in consideration of his receiving a portion of the property sold he would waive his objections to the sale. The Chief Court held that as the transaction was equivalent to that of taking over only a portion of the original bargain or associating a stranger in the purchase, it was not permissible by law and could not, therefore, defeat the rights of other pre-emptors.
7. In the third authority which is reported in Banarsi Das v. Hazi Abdul Ghani (1909)10 P.R.1909 another Division Bench of the same Court held that a person who under the pro visions of the pre-emption law, is entitled to preempt the entire bargain that is part of the property sold under one clause, and the remainder under another clause of the Pre-emption Act forfeits his right altogether, if be sues only for one portion and in such a case where in spite of the defendant's objections to the contrary he persists in a suit as laid he is not entitled to amend his plaint.
8. In view of the above authorities which are amply supported by decisions of the Allahabad High Court it is abundantly clear that Kapur Singh and Bahadur Singh, who agreed to purchase a part of the land which had been sold to Bhag Singh, had clearly abandoned their rights to pre-empt the property. Prima facie, therefore,' the finding of the Courts below to the effect that Mangal Singh and Mai Singh could pre-empt only the land which had not been purchased' by Kapur Singh and Bahadur Singh cannot be upheld.
9. S.S. Jhanda Singh, who appears for the respondents, contends that whatever the law might have been up to the year 1909, there was a considerable change subsequent to that year. He invites my attention to two authorities of the Lahore High Court in which a different view is alleged to have been taken. The first of these authorities is reported, in Uderam v. Atma Ram 11 A.I.R.1924 Lah.431. In this case, one Ram Singh sold certain house property to Atma Singh and Janki Das. A few months later Janki Das sold his half share to Atma Ram and on the same day Atma Ram sold a portion of the property to Mukand Singh on the latter asserting his right of pre-emption. Udhe Ram and another then brought a suit for pre-emption of the part which Atma Ram had not sold to Mukand Singh. The first Court decreed the claim but the District Judge on appeal held that Mukand Singh not having pressed his claim to the whole of the property sold had lost his right as a pre-emptor and that the plaintiffs, there, fore, could and should have sued for the whole of the property sold and that they were not entitled to pre-empt a part only. Scottsmith and Morde JJ. held that as Atma Ram had himself broken up the property sold by parting with a portion of it to Mukand Singh who had a right of pre-emption, he had no grievance when the plaintiff sued him for the remainder of the property and this suit was, therefore, competent. They held further that the principle of denying the right-of pre-emption except as to the whole of the property sold is that by breaking up the bargain the pre-emptor would be at liberty to take the best portion of the, property and leave the worst part with the vendee. In this particular case the plaintiff was not seeking to pick and choose part of the property in the possession of the vendee. The vendee himself having parted with a portion of the property did not suffer in any way whatsoever by plaintiffs not suing for the whole of it. Here the objection was raised by the vendee who had himself broken no the property and not by the pre-emptors. It will be seen that the facts of this case are entirely distinguishable from the facts of the case which is before me for decision, In Tirath Ram v. Dina Nath A.I.R.1933 Lah.774 a pre-emption suit was filed in respect of a sale but the vendee sold the property in equal shares to two other persons who also claimed to be pre-emptors thereof. The sub-vendees were also impleaded in the pre-emption suit and it was contended by the plaintiff that as the pre-emptor, sub-vendees, had not each pre-empted the whole property and as the bargain was split up, they should be deemed to have waived their right of pre-emption. Shadi Lal C.J., who delivered the judgment of the Division Bench, expressed the view that the principle that a pre-emptor whose right extends over the entire property sold must take over the whole of the bargain and that he is not entitled to pre-empt only a part of the property has no application to, this case as the vendee himself had broken up the bargain and sold the whole property to two pre-emptors. He held further that a sale of this character did not involve a breaking as contemplated by the general rule.
10. The facts of the case out of which the present appeal has arisen are, in my opinion, practically on all fours with the cases reported in Fateh Chand v. Nihal Singh (1980)106 P.R.1880 and Ralla v. Dayal (1903)34 P.R.1903. On the fact found by the Courts below that Kapur Singh and Bahadur Singh had really agreed to purchase a portion of the land from Bhag Singh allowing the latter to retain the remaining portion of the land, it seems to me that these two plaintiffs had clearly waived their right to pre-empt the land. They had no power by purchasing only a part of the land and by leaving the rest with a stranger to deprive the other pre-emptors of their right to pre-empt the whole bargain.
11. For these reasons, I would accept, the appeal and grant a decree for possession by preemption of 17 bighas 9 biswas and 14 biswansis of land in equal shares in favour of Mangal Singh and Mai Singh on payment of a sum of Rs. 4090-8-0 by each of them On or before 1-4-1948. If either of the two pre-emptors does not deposit his share of the pre-emption money within the time, fixed, the other pre-emptor would be entitled to deposit that money on or before 1-6-1948 and obtain a decree for the whole land. In case neither of these two pre-emptors deposits the money, then these two suits shall standi dismissed. Mangal Singh appellant will be entitled to costs throughout.