The court emphasized that the right of pre-emption attaches to the property and can be enforced against the owner, and that waiver or acquiescence must occur after the sale for it to affect the right to pre-emption.

1. This second appeal is in a suit to enforce pre-emption.

2. The suit property is a part of a non-residential building that belonged to the tarwad of plaintiffs 1 and 2 and defendants 1 and 3 before it was partitioned under Ext. P-1 dated October 15,1949. There is a covenant in the partition deed that if any sharer of the building, who took under the partition, were to sell his share at any time, it must be offered to the other parties to that deed for a fair price and only after they have refused in writing to purchase can it be assigned to a stranger.

The 4th defendant instituted a suit O. S. No. 1447 of 1950 on November 25, 1950 on certain promissory-notes executed by defendants 1 and 2, got a decree on January 22, 1952 charged on the suit property, and, executing the same, purchased it on October 14, 1954, for Rs. 775 As. 2. That sale has been confirmed on July 14, 1955. The 4th defendant has assigned his title to the 5th defendant.

This suit has been instituted on November 7,1955, to enforce the covenant for pre-emption in Ext. P-1. The Courts below found the covenant to be valid in law but unavailable against a court-auction-purchaser and therefore dismissed the suit. The 1st plaintiff and the legal representatives of the 2nd plaintiff have come up in second appeal.

3. The legal validity of the covenant for pre-emption made in the aforesaid partition deed is not disputed before me. The contentions are firstly that it is not available against the 4th defendant who purchased at an involuntary sale or his assignee, and secondly that the right has been lost to the plaintiffs by their waiver of the right and acquiescence in the court-sale.

4. As regards availability of the right of pre-emption against involuntary sales, there is no precedent in this Court and the precedents in other High Courts are not uniform. In Cheria Krishnan Nambudri v. Vishnu Nambudri (ILR. 5 Madras 198) and Vasudevan v. Keshavan (ILR. 7 Madras 309, 314) the right has been held available against purchasers in court sales and in Baij Nath v. Sital Singh (ILR. 13 All. 224) the contrary. Counsel for defence relied on Ghulam Mohi-ud-din Khan v. Hardeo Sahai (ILR. 42 All. 402) also as an authority; but that decision has been reversed by the Privy Council in Sheobaran Singh v. Mt. Kulsum-un-nissa (54 I. A. 204). (The corresponding AIR. report in AIR. 1927 P. C. 113 may not show that the decision reversed therein is that in ILR. 42 All. 402; but the Indian Appeal report is clear in that regard.)

5. In Audh Behari Singh v. Gajadhar Jaipurla (AIR. 1954 S. C. 417) the Supreme Court has observed:

"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. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner, a 'bona fide' purchaser without notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on ground of justice, equity and good conscience on which grounds alone the right could be enforced at the present-day. 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."

If a covenant for pre-emption runs with the land I see no reason why court-sales or other involuntary sales where there is no warranty of title should be excluded from its ambit. All that a purchaser at a court-sale would get is the right, title and interest of the judgment-debtor subject to all legal embargo thereon. If bona fide purchase in a private sa