(1) The present appeal arises out of a sale of 66 kanals 16 marls of land sold by Sunder Singh to Chanan Singh, Hakim Singh and others for a sum of Rs. 10,000/- by a sale-deed executed on 30th of September, 1955, but registered on 5th of December, 1955. Waryam Singh plaintiff-appellant brother of Suder Singh filed a suit for pre-emption of this land. Kehar Singh filed a suit for pre-emption of this land. Kehar Singh and others also filed a rival pre-emption suit presumably after Waryam Singh had filed the suit; the suit number of Waryam Singh being 749 & that of Kehar Singh and others being 889. These two suits came to be consolidated and were heard together. Waryam Singh plaintiff was granted a decree for possession and it was directed that if he failed to pay the sale-price, the rival pre-emptors would be entitled to possession on payment of the sale-price. The vendee did not contest the decision but the rival pre-emptors Kehar Singh and others filed an appeal before the learned District Judge, Ferozepur. Having come to the conclusion that Waryam Singh had waived his right to file the suit for pre-emption, the lower appellate Court allowed the appeal of Kehar Singh and others and granted them a decree for possession on payment of the sale-price.
(2) Waryam Singh has come in appeal to this Court and the short question for determination is whether the appellant had waived his right to bring a suit for pre-emption. The plea of waiver is founded on the presence of Waryam Singh at the time when mutation took place for recording the sale transaction of the 5th of December, 1955. The mutation (Ex. D.9) was recorded on 25th of January, 1956. According to the finding of the lower appellate Court, Waryam Singh was present at the time of mutation and raised no objection to the sale effected by his brother Sunder Singh. Though nothing really turns on this circumstance, it is a matter of strange coincidence that Sunder Singh died on the same day when the sale-deed was executed, viz. 30th of September, 1955.
The lower appellate Court has relied on the statement of Gurdial Singh (D.W. 2) that the transaction was arranged by Waryam Singh. He has also referred to the evidence of Ghumanda Singh (D.W. 11) who stated that Waryam Singh has present at the time of mutation and asserted that he would file a suit for pre-emption in respect of the sale. Do these circumstances collectively or by themselves constitute waiver on the part of Waryam Singh? The basic essentials of waiver have been stated by George Spencer Bower in 'The Law relating to Estoppel by Representation' (1923 Edition) at page 214:-
'Where A, dealing with B is confronted with two alternative and mutually exclusive courses of action in relating to such dealing, between which he may make his election, and A therefore so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course, and definitely to reject or relinquish the other, and in such belief alters his position to his detriment, A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting.'
(3) The principle of waiver is also expressed in the form that one cannot approbate and reprobate at the same time. The conduct of Waryam Singh in the present case cannot amount to any representation to the vendee that he had in any way precluded himself to bring a suit for pre-emption in future. It is well to observe that the vendee never Waryam Singh in his suit. If any person could defeat Waryam Singh on the ground of waiver it was the vendee and no one else.
The plea of waiver could only be raised by a party who has accepted the representation of another and has acted to his detriment in relying upon it. In my view such a plea is not available to the rival pre-emptor and more so in this case when Waryam Singh had filed the earlier suit for preemption. It was held by a Division Bench authority of the Lahore High Court (Addison and Din Mohammad JJ.) in Kidar Nath v. Bagh Singh reported in AIR 1937 Lah 504, that
'To deprive a person of any legal right that he possesses there must be clear and cogent evidence on record justifying that course.' and
'the mere oral statements of a few witnesses deposing to circumstances from which it may be possible to infer that the prospective preemptor had knowledge of the sale would not be enough to prove that he had positively relinquished the enforcement of his right.'
All that can be said in the present case is that Waryam Singh admitted the sale and did not object to it. That by itself cannot constitute waiver. In another Division Bench authority of the Lahore High Court (Addision and Ram Lall JJ.) in Alam Sher Khan v. Allah Din, AIR 1939 Lah 517 it was held that
'Attendance at the auction-sale does not debar a pre-emptor from later pre-empting the sale. A pre-emptor is not bound to did at in an auction-sale and if he does not bid, he does not lose his right of pre-emption, the principle being that he is entitled to pre-empt the property at the price fixed and paid, and is not bound to make that price higher by competitive bidding.
The Single Bench judgment of Cornelius J. in Bhagat Singh v. Hukum Singh, reported in AIR 1947 Lah 299, is even more definite. As observed by him the right of pre-emption is provided by statue, and it cannot be held to be waived unless by word or action, the plaintiff has debarred himself from exercising it. Nothing of any decisive importance was done or asserted by Waryam Singh in the present case to justify his conduct to constitute a waiver of his right to pre-empt. Even if Waryam Singh may be said to have carried on negotiations for the sale on which point the evidence is inconclusive, it was not a factor which would negative his right to claim pre-emption.
Mr. Thapar who appeared for the respondent has placed very strong reliacne on 8 Ind Cas 246, an authority of the Punjab Chief Court in Ram Rattan Shah v. Kirpa Ram, in which Mr. JusticeRattigan held that where the pre-emptor had taken active part in the negotiations for sale, he must be deemed to have waived his right and his suit must be dismissed. In this authority, it was the vendee who had raised the plea of waiver and to whom the representation amounting to waiver had been made. In my view the ruling of this decision is not applicable to the present case.
The counsel has also placed reliance on a Division Bench judgment of the Punjab Chief Court in Nabi Bakhsh v. Fakir Muhammad, reported in No. 25 Pun Re 1903 (Vol. 38). It was held by Chatterji and Harris JJ. that
'attesting the deed and taking an active part in its registration amounts to a distinct waiver by J. of his right to pre-empt, and having once waived his right with respect to the bargain J. was estopped from asserting it against the present pre-emptor whose claim to pre-emption was superior to that of the original vendee'.
From some of the observations made in this judgment, it appears that the learned Judges found as a matter of fact that the signature of pre-emptor obtained on the deed of sale was proof of the pre-emptor's assent. In my view, this cannot be said to have been done in the present case where Waryam Singh appeared before the mutation authorities only to say that the sale had been effected. However, the evidence of Ghumanda Singh which has been accepted by the lower appellate Court is to the effect that Waryam Singh had definitely stated that he intended to claim his right to pre-empt the suit property.
(4) The conduct of Waryam Singh, in my view, does not constitute a waiver and his claim for preemption cannot, therefore, be defeated by the rival pre-emptors. I would accordingly allow this appeal, set aside the judgment and decree of the learned District Judge and restore that of the trial Court. I however, make no order as to costs of this appeal.
(5) Appeal allowed.