Section 18 of the Rajasthan Pre-emption Act, 1966 overrides the principles of Mohamedan Law with regard to the survival of the right to sue in a pre-emption suit, and the right to continue a suit for pre-emption survives to the legal representatives of the pre-emptor.

1. - These two revision petitions arise out of an order dated 20th July, 1981, passed by Additional District Judge No.7, Jaipur City, as such the same are disposed of by one single order.

2. An important question of law called for determination in this case is whether right to continue a suit for pre-emption survives to the legal representatives of the pre-emptor?

3. One Damodar Lal filed a suit for possession on the basis of pre-emption against the petitioner Kewal Chand, Chhota Devi, Nirmala Devi and Patasi Devi. During the pendency of the suit, plaintiff Damodar Lal died on, 5th March, 1980 and non-petitioner Kunj Behari Lal filed an application for substituting his name as plaintiff and non-petitioner Nos. 2 to 8 proforma defendants alleging that right to sue survives to the said legal representatives. Learned trial Court allowed the application by order dated 20th July, 1981 holding that under order 22 rule 3 C. P. C. and Section 18 of the Rajasthan Pre-emption Act, 1966 (hereinafter referred to as 'the Act') right to continue the suit survives to legal representatives. Aggrieved against the aforesaid order these two revisions have been filed.

4. It was argued by Mr. Rastogi, learned counsel for the petitioner that in the area of Jaipur City where the disputed property is situated. Mahomadan Law was applied by way of custom in the matter of pre-emption According to such law a right of pre-emption ought to subsist on the date of sale, date of suit and date of decree by the trial Court. It was a personal right which was lost if the pre-emptor died before the date of decree and such right did not survive to be asserted or continued by the legal representatives of deceased pre-emptor. It was argued that there is a primary right of pre-emption and also a secondary right. The primary right is that before an offer of sale is made and the secondary right is to pursue such right by filing a suit in a court and this secondary right was remedial in nature. This remedial right is a personal right which is right of substitution in place of original vendee and not a right of re-purchase inasmuch as the right of repurchase exhausted before the property was sold to the vendee. According to Mr. Rastogi this position of law is well established under the Mahomedan Law and was not changed even after the coming into force of the Act. Right of pre-emption is a very weak right and can be defeated by any legitmate means. It was argued that the trial Court committed a material irregularity in exercise of its jurisdiction in applying section 18 of the Act and allowing the legal representatives of deceased Damodar Lal to continue the suit. According to Mr. Rastogi, the words before the decree has become final used in the language of section 18 of the Act clearly contemplated that there should be a decree passed by the trial Court and only thereafter the right to sue was kept survived till such decree become final by the higher Court. It was further submitted that the language of Section 18 of the Act has been framed in a negative form and according in which ordinarily the suit should abate but this section only serves out the exceptions and if that be so then the suit shall not abate only in a case where the decree has been passed by the trial Court and till it had not become final. Shri Rastogi placed reliance on (1) Naravana Manoki v. Karthion Yunis, AIR 1982 Kerala 122 , Pench Gujar Gour Brahmana v. Amar Singh : 1954 RLW 204 , Perusal etc. v. Motilal and others : AIR 1981 Rajasthan 119 , and Pyare Mohan v. Rameshlwar and others, AIR 1980 Rajasthan 116 .

5. On the other hand, it was argued by Mr. Keshote that the proceedings in the trial Court are at the stage of final arguments in the main suit and no terference should be made in exercise of revisional jurisdiction of this Court at this stage. It was submitted that Section 18 of the Act is quite clear and the intention of the legislature in enacting section 18 in the Act was to over-rid