Judgment

VENKATARAMIAH, J. - The two short questions involved in this case are (i) whether the right of pre-emption conferred on a tenant by a customary law is heritable or not and (ii) whether on the death of such a tenant, who had filed a suit for pre-emption his legal representatives can continue the suit.

2. The property in dispute which is a double storied building situated in the town of Jagadhri, District Ambala, Haryana originally belonged to one Om Prakash. Kishan Chand was in possession of a part of the said property as a tenant. Om Prakash sold the entire property including the portion occupied by Krishan Chand to the respondent for a sum of Rs. 23,000/- under a registered sale deed dated 11-7-1980. It is alleged that in the town of Jagadhri there was in force a customary law under which a tenant in occupation of a building had a right of pre-emption. Aggrieved by the sale of the property in his occupation as a tenant, Kishan Chand filed a suit for pre-emption in the Court of the Sub-Judge, II class, Jagadhri in Civil Suit No. 131 of 1980 on 26-8-1980 stating that the value of the portion of the property occupied by him was Rs. 10,000/-. The respondent denied that there was such a customary law conferring a right of pre-emption on a tenant in force in the town of Jagadhri and that in the event of a decree being passed in the suit the plaintiff should be asked to pay a sum of Rs. 20,000/- by way of consideration. During the pendency of the suit, Kishan Chand died on 8-8-1983. An application was filed under O. 22, R. 3, Civil P.C. by the appellants, who were the legal representatives of Kishan Chand to bring them on record in the place of the original plaintiff, Kishan Chand and to permit them to prosecute the suit further. The respondent opposed the said application contending that the right of pre-emption, even if it existed was only a personal right of Kishan Chand and not heritable and, therefore, the appellants were not entitled to be brought on record as the legal representatives of Kishan Chand. It was further contended by the respondent that the suit was liable to be dismissed on the death of Kishan Chand as the right to sue did not survive. The trial court allowed the application made under O. 22, R. 3, Civil P.C. holding that the right of pre-emption was heritable and the right to sue survived on the death of the plaintiff in favour of his legal representatives. Aggrieved by the order passed by the trial court, the respondent filed a revision petition under S. 115, Civil P.C. before the High Court of Punjab & Haryana in Civil Revision No. 3411 of 1983. Before the High Court, the respondent relied on a Full Bench decision of the High Court of Punjab & Haryana in Chandrup Singh v. Data Ram, (1982) 84 Punj LR 771 in which it had been held that a statutory right of pre-emption resting only on blood relationship created by S. 15(1), Punjab Pre-emption Act, 1913) (1 of 1913) (hereinafter referred to as the Act) (as it was in force in Haryana) was not a heritable right and did not devolve on the heirs on the death of the plaintiff-pre-emptier before the grant of the decree in the suit. Though the learned Judge, who heard the revision petition, was of the view that the above Full Bench decision ran counter to the decision of the SC in Hazari v. Neki, (1968) 2 SCR 833: (AIR 1968 SC 1205) he allowed the petition following the Full Bench decision on the ground that the said decision was binding on him and declared that the suit instituted by Kishan Chand had abated on his death.

3. We have gone through the decision of this Court in Hazards case (supra) and also the Full Bench decision of the High Court of Punjab & Haryana in Chandrups case (supra). The facts in Hazaris case (supra) were these. The plaintiff, who was the fathers brother of one Dhara Singh instituted three suits for pre-emption of the lands sold by Dhara Singh under three sale deeds on the ground that he had a superior right of pre-emption on the basis of h