The main legal point established in the judgment is that the right of pre-emption is not available against a purchaser at court auction, based on the interpretation of relevant legal provisions and precedents.

1. The fifth defendant is the appellant in -this appeal against second appeal and the plaintiffs the contesting respondents.

2. The suit property is a portion of a non-residential building, which belonged to the tarwad of plaintiffs 1 and 2 and defendants 1 and 3. Under Ex. P1 of 15th October 1949 there was a partition; and the partition deed contained a covenant that, if any sharer were to sell his share, it must be offered to the other sharers for a fair price and only after they refused in writing to purchase could it be sold to a stranger. The fourth defendant, a stranger to the tarwad, instituted a suit on promissory notes executed by defendants I and 2 obtained a decree charged on the suit property and in execution thereof purchased the ptopefty too. The sale was confirmed; and thereafter, the fourth defendant assigned his right to the fifth defendant (the appellant).

3. The plaintiffs filed the suit which has given rise to the appeal for preemption in terms of Ex. P1. The lower courts found that the covenant for per-emption was valid but was not available against defendants 4 and 5, who were purchasers at court auction. And the suit was dismissed. One of the plaintiffs and the legal representatives of the other plaintiff came up in second appeal to this Court; and Madhavan Nair J. allowed the second appeal on two grounds-that there was no waiver or acquiescence of the right of pre-emption on the part of the plaintiffs and that the right of pre-emption was available even against purchasers in court auction. It is against the said decision in second appeal that this appeal has been preferred. (the decision of Madhavan Nair J. in second appeal is reported as Chinna Kunji v. Krishnan: 1966 KLT. 727).

4. We are not considering the question whether the second appellate judge was right in his conclusion that there was no waiver or acquiescence on the part. of the plaintiffs. We proceed on the basis that there was no waiver And we proceed, therefore, to consider the next question-whether the right of pre-emption is available against a purchaser in court action.

5. Madhavan Nair J. has observed in his short judgment on this question that, on the question of the availability of the right of pre-emption against involuntary sales, there is no precedent in our Court and that the precedents in the other High Courts are not uniform. The learned judge has then referred to Ramapurath Pullankot Illath Cheria Krishnan Nambudiri v. Ramapurath Pullan-kot Illath Vishnu Nambudiri (ILR. 5 Mad. 198) and Vasudevan v. Keshavan (ILR. 7 Mad. 309) of the Madras High Court and Baij Nath v. Sital Singh (ILR..3 All. 224) of the Allahabad High Court and has observed that these two High Courts differed in their views. Ultimately, the learned judge has followed the Madras view, because, in his opinion, that view was supported by the decision of the Supreme Court in Shri Audh Behari Singh v. Gajadhar Jaipuria (AIR. 1954 SC. 417). The learned judge has extracted a passage from the decision of the Supreme Court which contains the following observation of Mukherjea J.

"The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself." The passage continues to state that the right of pre-emption is not merely a personal right enforceable against the vendee and concludes

"In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser" (Purchaser here is a bona fide purchaser for value without notice of the right.)

Madhavan Nair J. has concluded from the aforsaid line of reasoning of the Supreme Court

"If a covenant for pre-emption runs with the land I sea no reason why court-sales or other involuntary sales where there is no warranty of title should be excluded