Guman Mal Lodha, J.
1. A preliminary objection has been taken by Shri P.D. Mathur, the learned Counsel for the defendants-respondents that since the sole plaintiff Gopi Chand expired in March, 1977, the suit for pre-emption cannot survive and the legal representatives cannot continue it.
2. It is not disputed that the sole plaintiff Gopi Chand has expired in 1977 when this appeal was pending. It is also not in dispute that at the relevant time, when the cause of action for this suit arose, there were no statutory law for pre-emption in the form of the Rajasthan Pre-emption Act. It is also common ground that even though there was no statutory law of pre-emption yet in the former Jaipur State, the custom of pre-emption used to prevail, based on the Mohammedan Law. It is also common ground that this custom of pre-emption based on the Mohammadan Law was later on modified by a notification of 1927.
3. It is also common ground that both the lower courts have dismissed the suit for pre-emption on various grounds and one of the ground is that the requirements of Talab was not fulfilled.
4. Now, the controversy is, whether in the above state of circumstances, the objection deserves to be accepted or is to be rejected. Both the lower courts have referred to a number of decisions in this respect.
5. In Mohd. Ismail v. Abdul Rashid : AIR1956All1 , it has been held that if the pre-emptor-plaintiff died before the decree is passed, the right cannot survive to the heirs. Two reasons have been given by the Full Bench of Allahabad High Court, in that-case, one, that the pre-emptor must be possessed of the property on account of which he claims pre-emption on the date of the sale; second, that, the pre-emptor must be firmly possessed of his own property till the date of the decree in his favour, and if he dies before that date, this condition is not fulfilled. The Full Bench further held that this right assumes a personal aspect for the purposes of enforcement in a court of law; but if the decree is passed then the right becomes a proprietory right fit to be transferred as well as to be inherited.
6. The above principle of law Laid down by the Full Bench of Allahabad High Court, based on the three-fold reasons, extracted above, deserves to be applied in the facts and circumstances of each case.
7. Before I may consider their application it must be further mentioned that their Lordships of the Apex Court in Hazari v. Neki (dead) by this legal representatives : 2SCR833 , observed as under:
5. It is necessary to emphasise that we are dealing in this with the statutory right of pre-emption under the Punjab Act 1 of 1913 & its subsequent amendments and not with the right of pre-emption under the Mohammadan Law. In regard to the latter right it has been held that according to the Mohammadan Law applicable to the Sunni sect if a plaintiff in a suit for pre-emption has not obtained his decree for pre-emption in his life time the right to sue does not survive to his heir. See: Mahammed Hussain v. Niamat-un-nissa (1897 ILR 20 (All) 88). It is not necessary for us to express any opinion on this point in the present case.
8. In Gopal v. Haridutt Sharma (1981 WLN 660) it was observed that the custom of pre-emption was recognised in Jaipur City even earlier, that that it was found on the Mohammedan Law but was modified by the notification regarding 'Talabs'.
9. This Court in Pyare Mohan v. Rameshwar 116 has, in terms, held that if there is death of the pre-emptor the right does not survive to heirs. The decision in Mohd. Ismail v. Abdul Rashid (supra) by the Full Bench of Allahbad High Court was followed by this Court in Pyare Mohan's case (supra).
10. In Bharat Singh v. Kallu Singh (1966 Current Law Journal (Pb.) 124) it has been reiterated that the right of pre-emption is purely a personal right and it comes to an end with the death of the pre emptor. It was held in terms that the legal representatives cannot continue in that suit for pre-emption.
11. Confronted with the above, Shri Dalip Singh the learned Advocate for the plaintiff-appellant that in Allahabad case(supra) in para 12, it has been observed that, where the pre-emption arises under the terms of a wajib-ul-arz, the right is heritable. It was also pointed out in this para that even when the pre-emptor dies after the judgment of the trial Court, the legal heirs can continue because, the judgment of the appellant court would only give the decree which the trial Court should have or could have given.
12. In this very para 12, it has been mentioned that the above judgments are based on customary law of pre-emption on the terms of wajib-ul-arz.
13. Obviously in the present case, it has not been pointed out, that the right of pre-emption which was prevailing in the former Jaipur State till the coming into force of the present Act, was either analogous or in similar terms to what was contained in wajib-ul-arz in Punjab in those days.
14. Thus, in view of the above series of decisions and particularly the decision of Allahabad High Court (FB) in Mohd. Ismail v. Rashid (supra) so also the decisions of the Apex Court in Hazari v. Neki (supra), and also of this Court, referred to above, it is not possible to take the view that in cases based on right of pre-emption as it existed before coming into force of the present Act of Pre-emption in Rajasthan, the legal heirs are entitled to continue the suit even though the pre-emptor dies before the decree is passed.
15. It is thus being the clear, patent and legal position having no doubt or debate, I have got no option but to accept the preliminary objection raised by Shri P.D. Mathur, the learned Counsel for the defendants-respondents.
16. Consequently, this appeal abates as after the death of the sole plaintiff-Gopichand so far as the right to claim the decree based on pre-emption on the basis of the custom which was prevalent earlier coming into force of the Rajasthan Act is concerned, the legal heirs of Gopichand cannot claim it and continue to sue.
17. The appeal is dismissed. The parties would bear their own costs, through-out.