BHANDARI, J.—This is a Civil Second Appeal in a suit for pre-emption.

2. Mst. Goran, who was Defendant No.1 in the trial court and who after her death is represented by her daughters Mst. Durga Devi and Mst. Dhapan Devi, sold certain house property detailed in the plaint, situated at Jaipur to her son-in-law Sunder Lal by the sale-deed dated the 16th of April 1948. The sale was for a sum of Rs. 999/-. On this Roopnarayan, who is also dead and is now represented by his widow Mst. Jamna Devi filed a suit for pre-emption in the court of the Munsiff, West, Jaipur City on the 24th of November, 1948. On the 25th of July, 1950 Mst. Durga and Mst. Dhapan instituted another suit, Civil Original No.III of 1950, for a declaration that the sale of the disputed house by their mother to Sunderlal was null and void. Roop Narayan was made a party to this suit but after his death the matter was not pursued and his legal representatives were not brought on record. Mst. Dhapan and Mst. Durga obtained an ex parte decree against Mst. Goran and Sunderlal in the suit for declaration on the 25th of May, 1951 by which it was declared that the sale was valid for the lifetime of Mst. Goran and was null and void as against the plaintiffs in that suit after the death of Mst. Goran. In the preemption suit after Mst. Gorans death her two daughters Mst. Dhapan and Mst. Durga were brought on record as her legal representatives. These two ladies filed the written statement raising the plea that the sale-deed had become ineffective by virtue of the declaratory decree already referred to and the suit for pre-emption was not maintainable. The learned Munsiff did not accept this plea and decreed the suit on the 14th July, 1955, In the appeal filed by Mst. Durga and Mst. Dhapan against the judgment and decree of the Munsiff West decreeing the suit for pre-emption, it was urged that the learned Munsiff was wrong in holding that the plaintiffs suit was maintainable in spite of the fact that the sale had become ineffective by virtue of the declaratory decree dated the 25th of May, 1951. The lower appellate court came to the conclusion that the ex parte declaratory decree was nothing but the result of the active collusion on the part of the parties in the declaratory suit and could not be of any avail against Mst. Jamna Devi in the present suit for pre-emption and that to hold otherwise would be to allow them to take advantage of their own fraud and would amount to injustice against Mst. Jamna Devi. The appeal was therefore dismissed.

3. In this appeal it is contended that by virtue of declaratory decree the sale had become ineffective after the death of Mst. Goran which took place before the pre-emption suit was decreed and as such no decree for pre-emption should have been passed by the trial court. The contention is that on the date when the pre-emption decree was passed there was no sale as under the decree dated the 25th of May 1951 it had been declared between the parties to the sale that the sale was effective only during the lifetime of Mst. Goran and thereafter it could not affect the interest of Mst. Dhapan and Mst. Durga who succeeded Mst. Goran.

4. In my opinion, this contention has got no merit. It is obvious that the declaratory decree dated the 25th of May 1951 is not binding on Mst. Jamna Devi as she was not brought on record as the legal representative of her husband Sunder Lal in that suit. Moreover, the right of pre-emption accrued to the pre-emptor on the date of the sale. The principle of pre-emption is that the pre-emptor is substituted for the vendee. The pre-emptor takes the property as it is sold to the vendee. The suit of the pre-emptor cannot be defeated if the sale is cancelled by the buyer and the seller. The doctrine that the seller and the purchaser may declare that the sale was invalid and thereupon the right of pre-emption is defeated has not been applied in any case. On the other hand, in Bodu Mahomed Vs. Radha Churn Bolia(1), it has been

Click Here to Read the rest of this document