S.B. Capoor, J.
1. This regular second appeal is by the defendant-vendee Teja Singh in a suit for possession by pre-emption which was in stituted by Bir Singh, now respondent. The sale, which was sought to be pre-empted was of 26 Kanals 4 Marias of agricultural land situated in village Sidhupur Khurd, Tehsil Rupar, and it was effected by Uttam Singh vide sale deed dated the 25th May, 1953 (Exhibit D-1), the price being Rs. 17,527/-. Bir Singh's suit for pre-emption, which was in stituted on the 20th February, 1961, was decreed by the Subordin ate Judge First Class, Rupar. The vendee appealed and the learned District Judge accepted the appeal only to the extent that Bir Singh was required to make the deposit of a further sum of Rs. 386/- being the expenses for the execution and registration of the sale deed. Both the Courts below were agreed that the plain tiff being the brother of the vendor had a superior right of pre-emption to the vendee and on this question there is no contest in this second appeal. The defendant-vendee has also raised the pleas that the plain tiff was a mere figurehead acting for the vendor himself and further that the plain tiff had waived his right to sue. On these pleas issues Nos. 4 and 5 respectively were settled and the trial Court as well as the lower appellate Court have found these issues in favour of the plain tiff.
2. When this appeal came up for hearing before Shamsher Bahadur J., the only contention advanced by Mr. Shamair Chand, the appellant's learned counsel, concerned the question of walver. The circumstances on the basis of which the plea of Waiver was pressed were as follows; 2 Kanals and 13 Marias, out of the land sold by Uttam Singh to Teja Singh, had been mortgaged with possession by the vendor with Bir Singh plain tiff, After the sale Teja Singh on the 9th June, 1960, paid Rs. 474/- to the plain tiff with the consequence that the mortgaged land that is, 2 Kanals and 13 Marlas, was redeemed and possession of it delivered by Bir Singh to the vendee. In these circumstances Mr. Shamair Chand contended that by his conduct the plain tiff recognised the vendee's right to redeem, the. property, which right accrued to him merely oh account of the sale transaction in his favour and thereby the plain tiff must be taken to have assented to the sale transaction. Mr. Shamair Chand supported his contention by referring to Bawa Lehna Singh v. Jagan Nath, 138 Pun Re 1883 and Mehta Chandras v. Malik itbar Khan, 154 Pun LR 1906, while the learned counsel for the plain tiff cited Fazaldad Khan v. Sawan Singh, 37 Pun. Re 1908, Kanshi Ram v. Bhojaram, AIR 1924 Lah 159 and In der Ram v. Iqbal Mohd. AIR 1948 EP 5. It was in view of these conflicting authorities that the case has been referred to the Full Bench for decision.
3. So far as the facts of the present case are concernedthere is no dispute. The only circumstance supporting theplea of waiver is that the plain tiff accepted from the vendeethe amount of the mortgage deed due to him giving up as anecessary consequence possession of a small area out ofthe total area of the land which had been sold by themortgagor. None of the cases cited by Mr. Shamair Chand,on behalf of the appellant, went to the length of holdingthat on these facts the plain tiffs had waived his right ofpre-emption. The cases which were not brought to thenotice of the learned Single Judge may first be mentioned.These are-- (1) Fatteh Chand v. Nihal Singh, 106 Pun Re1860, (2) Kishan Lal v. Ishri, ILR 28 All 237 and (6) Abdullav. Bishendas, 22 Pun Re 1881. In the first case it washeld that the right of pre-emption is a right to take ever asale bargain in its entirety, and if a pre-emptor suffersanother person to purchase, and is content to accept a derivative title from him with respect to a portion only of thepremises sold, being unwilling to buy the rest, he must beheld to abide the consequence of losing even that portion,if another person, having a superior right to that of hisvendor, claims to assert his right to take over the originalbargain as a whole.
ILR 28 All 237 was a case in which the pre-emptorhad accepted a lease of the land claimed from the vendeeand it was held that this amounted to such an acquiescencein the sale as would bar the plain tiffs right of suit. Theseare thus cases in which the plain tiff was non-suited becausehe had accepted a derivative title with respect to the property sought to be pre-empted and they are, therefore, nothelpful for the decision of the point under consideration. In the present case. In the third case, the defendant-purchaserhad mortgaged the property in suit to the plain tiff, claimingpre-emption, for the very purpose of paying the purchase-money to his vendor; this purpose was stated in the mortgage deed, and it was held that under these circumstancesthe plain tiff was prima facie estopped from demandingthe pre-emption. This case is of no relevance for decidingthe question of waiver which is before this Court in thepresent appeal.
4. The authorities, which have a direct bearing are 138 Pun Re 1888 and 154 Pun Re 1909. In the former case the facts were that one-third share, out of the house sought to be pre-empted, was under mortgage by one of the vendors to the plain tiff, and it was provided in the deed of sale that out of the nominal purchase money the amount due on the mortgage should be retain ed by the vendee for payment to the mortgagee. Some two months after the sale the plaintitf gave a written notice to the vendee to pay the mortgage-debt, threatening him with an action it he did not do so, but saying nothing in the notice about his right of pre-emption, whereupon the vendee paid the amount to the mortgagee. The learned Judges (Plowden and Burney JJ.) held that it would be again stgood conscience that a mortgagee who is also pre-emptor should be allowed to deal with a purchaser of property one day, on the footing that the sale is valid as between them, and when he has thus procured payment of his mortgage, to treat the purchase the next day on the footing that the sale is in valid, as between them. The distinguishing feature of the case that the plain tiff had demanded the mortgage debt from the vendee was stressed and it was held that in consequence by implication the plain tiff treated the sale as valid as between himself and the vendee.
In 154 Pun LR 1906 it was stated that the facts were almost identical with those in 138 Pun Re 1888 the only difference being that in the later case a notice to receive payment of the mortgage debt came from the vendee. It appears, however, that the plain tiff was a mortgagee in possession of the entire property which was the subject matter of the sale, and after receiving the payment he save up possession of the land without any reservation of his right to resume it immediately as pre-emptor.
5. Both these cases were noticed and distinguished in 37 Pun Re 1908 and the learned Judges (Kensington and Johnstone JJ.) in fact observed that they were in clined to hold that the actual decision in 154 Pun LR 1906 went too far. After considering these authorities the learned judges held that the mere acceptance of the money by a mortgagee from the vendee was not a waiver of his right to claim pre-emption and did not equitably estop him from asserting his pre-emptive right. The ratio was that the plaintiff as mortgagee was entitled to take his money when offered to him. The offer of the mortgage amount to him was made within 3 weeks of the sale, and the learned Judges stressed the legal position that the plain tiff was allowed 12 months to make up his min d whether he would sue or not. Even if at that time he had made up his min d to sue when he could arrange for the necessary funds, or when it should otherwise be convenient, it was not in cumbent upon him to in form the vendee of his intention, and so give the vendee time to pass the land on to another person before plain tiff's suit could be filed.
6. With due respect to the learned Judges who decided 138 Pun Re 1883 and 154 Pun LR 1906 I am of the view that the reasons given for the contrary view in 37 Pun LR 1908 are weighty. The mortgagee in accepting the mortgage money from the vendee does nothing more than to recognise That the latter as transferee from the mortgagor has the right to redeem. It would not be correct to say, as Mr. Shamair Chand maintain ed, that the sale was voidable at the in stance of the plain tiff-pre-emptor.
In fact, as observed in Janki v. Girjadat, ILR 7 All 482 (FB) at p. 487 by Mahmood J. a valid and perfected sale is a condition precedent to the exercise of the pre-emptive right. It is not that there is any defect In the title, which passes to the vendee by means of the sale but the transaction is subject to the superior right of the pre-emptor If he chooses to exercise it within the statutory limitations. Their Lordships of the Supreme Court in Bishan Singh v. Khazan Singh, AIR 1958 SC 838 at p. 840 have quoted with approval the observations of Mahmood J. In Gobind Dayal v. In ayatullah, ILR 7 All 775 (FB) to the effect that the right of pre-emption is not a right to the thing sold but a right to the otter of a thing about to be sold. This right is called the primary or in herent right. The pre-emptor has a secondary right or a remedial right to follow the thing sold, that is, the right of substitution which entitles him to take the entire bargain and step In to the shoes of the origin al vendee in respect of the rights and obligations arising from the sale,
7. It is thus obvious that the mere recognition by the plain tiff of the vendor's right to redeem by taking the mortgage amount from the vendee cannot by itself amount to waiver of the plain tiffs right of pre-emption and this was so held by their Lordships of the Privy Council in Baijnath Ram Goenka v. Ramdhari Chowdhry, ILR 35 Cal 402 at p. 412 (PC). The facts briefly were that the two plain tiffs Mangni and Jowhari had obtain ed a transfer of a zerpeshgi mortgage bin ding the four anna share sold by Anupbati to Nirbhoy and which was the subject-matter of the pre-emption suits.
After that sale Nirbhoy paid the mortgage money in to Court in accordance with the provisions of the Transfer of Property Act, for the purpose of redeeming the mortgage; andthe two plain tiffs took out that money. It was contended that by so doing they had recognised the title of Nirbhoy under his purchase and could not claim pre-emption. This argument was repelled with the observation that until a decree for pre-emption was made, Nirbhoy owned the and as purchaser and had a right to redeem. The taking out 01 the money by the plain tiffs, as mortgagees was no recognition of anything more than this, and was quite consistent with the claim to pre-empt. Mr. Shamair Chand sought to distinguish this case on the ground that before the plain tiffs took out the money they had filed their suit for preemption, but I do not see how that circumstance makes any difference to the principle laid down by the Privy Council and it is significant that Mr. Shamair Chand could not cite in support of his view any case subsequent to ILR 35 Cal 402 (PC).
Following this authority, Broadway and Brasher JJ. In AIR 1924 Lah 159 held that the conduct of the plain tiff in accepting the money from the vendee without any protest was quite consistent with his claim to pre-empt and could not be regarded either as an act of acquiescence or waiver of such claim on his part. This case was followed by Achhru Ram J. In Ganga Singh v. Jhanda Singh, AIR 1948 Lah 5 in preference to 154 Pun LR 1906 and the following passage from this judgment may usefully be quoted:--
'A pre-emptor can wait up to the last day of limitation prescribed for a pre-emption suit and is not required to consider whether he would bring such a suit at any time before that. He is under no obligation to make up his min d to bring a pre-emption suit at any particular time before the expiration of the period of limitation for the suit. His failure to express any intention of enforcing his right of pre-emption at the time of receiving, the mortgage money due to him under a mortgage of the land sold can at best snow that up to that time he had not yet decided whether he would bring a pre-emption suit or not. In order to constitute waiver of his pre-emptive right, it must appear that he had made up his min d not to sue to enforce that right and, In some way or another had given expression to an intention not to do so.'
8. These observations are apt to the present case in which also there is, beyond the acceptance of the mortgage money, nothing whatever to show that the plain tiff had either made up his mind not to sue to enforce the right of pre-emption or had given expression to his intention not to do so. Accordingly, the finding of the Courts below again st the defendant on the question of waiver (which was the subject-matter of issue No. 5) must be affirmed.
9. Mr. Shamair Chand sought to buttress his argument on the question of waiver by pointing out that the right of pre-emption as held in AIR 1958 SC 838 at p. 841 was a Very weak right. But the context in which this observation was made was that such a right 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. In the present case, there is no dispute at all as to the existence of the right and unless the defendant succeeded in proving that it had been waived by the plain tiff or that plain tiff was estopped by his conduct from exercising it, the Courts are bound to give effect to that right. Similarly, this is not a case in which there is a doubt as to whether that sale was not a sale, hence, the principle laid down in Rati Ram v. Mam Chand, AIR 1959 Punj 117 that if the transaction is capable of two in terpretations the Courts should be disinclined to hold it to be a sale, is not applicable.
10. For the reasons given above, I would, upholding the Judgment and decree of the lower appellate court, dismissthe appeal but in the circumstances leave the parties to bear their own costs.
D. K. Mahajan, J.
11. I agree.
P.C. Pandit, J.
12. I also agree.