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PETITIONER:

KARAN SINGH & ORS

Vs.

RESPONDENT:

BHAGWAN SINGH (DEAD) BY L.RS. & ORS.

DATE OF JUDGMENT: 24/01/1996

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

G.B. PATTANAIK (J)

CITATION:

JT 1996 (1) 618 1996 SCALE (1)594

ACT:

HEADNOTE:

JUDGMENT:

W I T H

CIVIL APPEAL NO. 2356 OF 1996

(Arising out of SLP (C) No.14372 of 1986)

J U D G M E N T

K. Ramaswamy, J.

Leave granted.

Substitution of legal representatives of the

first respondent is allowed.

Bhagwan Singh, the respondent had sold 48 :

canals of land from undivided joint family properties,

but in specie to Prithvi, Rattan, Krishan sons of Banwari

and Karan Singh son of Sis Ram on June 15, 1978. Admittedly,

they were strangers to Bhagwan Singh and were resident of

village Malkos. The lands are situated in village Kayala.

Though the sale deed was questioned by the wife and children

of the respondent, the litigation proved unsuccessful.

Prithvi Singh and Krishan have subsequently sold 34 canals

13 marlas purchased from Bhagwan Singh to the appellant.

Rattan Singh also has sold 13 kanals 7 marlas of the said

land on May 18, 1982. Bhagwan Singh, thereafter, filed the

suit for pre-emption under Punjab Pre-emption Act, 1913.

Apart from other pleas, the principle plea was that being

co-owner, he is entitled to pre-emption of the land

purchased by the appellant. Though, the trial Court

dismissed the suit, on appeal, the suit was decreed and the

High Court in Second Appeal No.2671/86 by judgment and order

dated October 29, 1986 upheld it. Hence this appeal by

special leave.

Shri Baggas the learned counsel for the appellant,

contended that Bhagwan Singh, having himself sold the

property in spieces to strangers from whom the appellant had

purchased, has no right to exercise the right of pre-

emption under Section 15 of the Act. Alternatively, it is

contended that Haryana State legislature has amended Section

15 of the Act by Amendment Act 10 of 1995 which has come

into effect from May 7, 1995 substituting Section 15 of the

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principal Act whereunder the right of pre-emption is vested

only in a tenant who held the land under tenancy of the

vendor or part of the vendor's land sold.

Shri A.K. Sen. the learned senior counsel for the

respondents, contended that Bhagwan Singh, being a co-owner

with his co-parcenars or joint owners, is entitled under

Section 15 to exercise the right of pre-emption statutorily

given to a co-owner. A stranger cannot be inducted against

the wishes of the co-owners into the co-parcenary or joint

family property. Bhagwan Singh, having undivided interest in

the co-parcenary, had a right to lay the suit for pre-

emption under Section 15. The subsequent amendment is of no

avail since the suit had already been decreed and this

Court can confirm the decree validly passed before the

Amendment Act had come into force. Therefore, the appellate

Court and the High Court were right in granting decree for

pre-emption.

Having given our anxious consideration to the

respective contentions, we are of the view that the

contentions of Shri Bagga merit acceptance. It is seen that

Bhagwan Singh himself had sold the land to the strangers to

the family. The lands sold were in specie from the co-

parcenary property. Having inducted the strangers into the

property, he cannot object to his vendees selling the

property to the third parties and claim right of pre-

emption from them. In a case of pre-emption as in any other

the plaintiff has to establish a number of facts to succeed

in his claim. It is hardly necessary to point out that

cases of pre-emption are no exception to the rule of

estoppel to be found in Section 115, Evidence Act. The plea

of estoppel may be grounded on an indefinite variety of

facts. But the precise question for consideration is whether

in a case where the purchaser buys property relying on an

implied assurance of the pre-emptor that he will not pre-

empt the purchaser can invoke the doctrine of estoppel

against the pre-emptor. Having sold the lands to the

strangers, he cannot plead invalidity of the title of his

vendees selling the same lands to another stranger on the

ground that the title is invalid, due to pre-emption right,

under the Act.

We appreciate that other co-owners might have a right

since they may seem to object to the strangers coming into

the co-parcenary estate jointly held by all the co-

parcenaries or co-owners. Bhagwan Singh, therefore, could

not validly lay the suit for pre-emption.

It is settled law that the 'right' to clain pre-emption

must be available at the date of sale, the date of suit and

the date on which the decree is passed. In Amarjeet Kaur vs.

Pritam Singh [AIR 1974 2068], this-Court had held that when

appeal against a decree is pending, the Court of appeal has

seisin of the whole case and the whole matter becomes sub

judice again though for certain purposes, i.e., execution,

the decree is regarded as final. The decree of the trial

Court gets merged with the decree of the appellate Court.

Therefore, the Court of appeal shall have all the powers and

shall perform as nearly as may be, the same duties as are

conferred and imposed on the Court of original jurisdiction.

When the appeal, therefore, is pending in this Court, it is

a continuation of the origlnal proceedings and the entire

issue is at large. It is well settled law that the Court can

take judicia1 notice of the change in law and mould the

relief on the basis of the rights altered under the amended

law. Though the appellate court reversed the decree of the

trial Court and granted to Bhagwan Singh the right of pre-

emption, his entitlement to relief is at large when the

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matter is pending consideration before this Court.

Therefore, the right to pre-emption should be available at

all the stages including the final stage to affirm the

decree. This Court would take judicial notice of the law

prevailing as on the date of the order or judgment and apply

relevant provisions of law prevailing on that day and mould

the relief on the basis of that law. In view of the facts

that Haryana Amendment Act, 10 of 1995 came into force

w.e.f. July 7, 1995, the only person entitled under the

amended law, to avail the right of pre-emption, is the

tenant whose vendor's had sold the whole or a part thereof

to the third parties. It would, therefore, be clear that

as on date, Bhagwan Singh has no right to claim pre-emption

under the Act, as amended under the Amendment Act, 1995.

The appeals are accordingly allowed. The judgment and

order of the High Court and the decree and judgment of the

appellate Court are set aside and that of the trial Court,

i.e., Sub-Judge, Second Class, Bhiwani made on October 31,

1985 in suit No.201/83 is restored. In conclusion, the suit

stands dismissed but, in the circumstances, parties are

directed to bear their own costs.