1. Two suits, one for pre-emption by appellant Muhammad Beg and the other for the usual declaration by reversioners against alienations by limited owners, by appellant Samandar Khan were filed against a sale by one Mst. Sans Begum to one Muhammad Zaman on whose death, his heirs comprising five sons, five daughters and a widow, were duly brought on record. On failure in the trial Court, the plaintiffs went in appeal to the District Judge where it came to light during process that respondent hiaroof Jan, a daughter of vendee, had died several years back. While appellant Muhammad Beg applied on the 16 of November, for impleading her legal representatives, Samandar did so on the 13th of March 1972. Both pleaded ignorance. Indisputably, she died on the 29th of November 1968. In what may be termed as a telegraphic judgment, the District Judge has dismissed both the appeals.
2. First of all, it has to be seen whether the appellants were really ignorant of her death? They have led no evidence; nor ever supported their pleas with affidavits. It has been laid down In several cases that litigants cannot avoid abatement by a mere bald statement of ignorance. Apart from showing that he was really ignorant, he has also to show that such ignorance did not stem from his own negligence. Reference may be made to AIR 1960 Pb. 335 ; AIR 1922 Cal. 335, A, I I3 1924 Pat. 126 and 607 and AIR 1925 Born.
122. It was held in AIR 1924 Pat. 126 that a party to litigation ought to keep himself informed of the existence of his adversaries. Muhammad Beg and the respondents live in the same village. The deceased was no doubt married a few miles away but the fact that her four sisters, five brothers and mother live in the same village, leaves no room for doubt that he must have come to know of her death if not on the same 'day, at the most within a few days of her passing away. In the villages, if a hen doesn't return to her mistress in the evening, the entire villageth learns it instantly but the appellant expects the Court to believe that he didn't learn of the passing away of a woman who had four sister, five brothers a and a mother in the village itself, to mourn.
3. There has thus been not only extreme negligence but he is also guilty of suggestio falsi.
4. It was next contended that in a revision petition filed in the High Court oil the 20th of January 1971, against the trial Court's order closing their evidence, her name appeared among the petitioners. It is not their case that she was alive on that date It is not disputed that she died on the 29th of November 1968, as borne out by Exh. D. A. a certified copy of the death register. A glance at the file shows that none among the petitioners except Muhammad Sabir who had described himself as Mukhtar-e-Khas, had signed the Vakalatnama, while no such Mukhtarnama is on any of the files.
5. The application for impleading her legal representatives was moved almost ten months later. In any case, her heirs could hardly be punished by being deprived of the benefit accruing to them from the appellant's failure to implead them in time because of somebody's inadvertence or even negligence in. Putting her name among the petitioners. Samandar Khan also does not live far away; besides, his counsel was present when the District Judge recorded in the file on the 16th of November 1971, that Maroof Jan was reported having died years ago. The application for impleading her legal representatives was moved on the 13th of March 1972. It was held in AIR 1927 Mad. 707 that unless some special reasons can be shown to the contrary, knowledge of a pleader must be taken to be the knowledge of his clients.
6. The question that now needs determination is a9 to whether the suits abate only to the extent of the deceased who as a legal representative of her father, was entitled to 7/120, or as a whole. So far as Samandar Khan is concerned, the trend of D authority is definitely in support of the proposition that in declaratory suits like the one brought by him, the suits abate only to the extent of the deceased. The leading case on the point from Lahore decided by five learned Judges Is AIR 1928 Lah. 573.
7. As regards Beg, he sued for the whole property on payment of Rs. 400 which, according to him, was the price paid as also its market price. His stand in this Court and. It seems, also In the lower appellate Court was that he may be given a decree for the suit property minus the share of Maroof Jan on payment of a price that was found paid for the whole property or its market price. The learned District Judge hasn't said so but it seems he assumed that the claim was hit by the doctrine of partial pre-emption. But can it be called a case of partial pre-emption? The proposition, therefore formulated for decision of this case is as to whether a pre-emptor who, although entitled to pre-empt the' whole property sold, for one reason or another sues only -for a part of the said property but offers to pay the price paid -for the entire property, can be said to be hit by the doctrine of partial pre-emption? This situation can arise in the following circumstances :-
(2) He omits to implead one of the vendees and the suit agsinst hint becomes time-barred.
(3) One of the vendees dies without his legal representatives being impleaded in time.
(4) The sole vendee or one of the vendees dies and only some of the legal representatives are impleaded in time.
8. The first and the only case from Allahabad to my knowledge hat affirms the proposition Is 11 All. 108 decided by .Sir John Edge, C. J. And Tyrrell, J. The property was situate partly in a village and partly in the city of Moradabad, which had been sold through a single sale-deed by a single owner to a single vendee. The Court came to the conclusion that the right to the city property had been lost but subsisted with regard to the village property. An offer was made by the pre-emptor to pay full price for the village property only but the same was disallowed. The reasons given are contained in .The following passage :--- "There arises another question in this case. It is a question on which although we have formed an opinion we express that opinion with some hesitation. There can be no doubt that a plaintiff coming into Court in a pre-emption suit, if he is a person having a right to claim the whole property, sold, must in his suit make that claim. That is he cannot come into Court and claim a portion only when he is entitled to the whole. That is we think settled law. That question has been considered in the cases of Kashi Nath v. Mukhta Prasad 6 All. 370, Arjun Singh v. Sarfaraz Singh 10 All.
9. 182 as well as in many other cases decided in this Court. According to the judgment of Mr. Justice Mahmood In one of those cases, the plaintiff must claim the whole of the property included in the sale deed, if he is a person entitled to claim it, and his action must stand dismissed if he fails to claim the whole of that property. Mr. Justice Mahmood has expressed his reason for that view of law, and it appears to us that that is a rule of law which is consistent with commonsense. The pre- emptive plaintiff should not be allowed to take, for instance, the best portion of the property bought, and leave the worst on the hands of the purchaser, or on the hands of the vendor. It is said here that the plaintiff' is willing to pay, the full purchase-money, and leave in the hands of the purchaser the property in Moradabad. Possibly In this particular case the purchaser would not be suferer if that was accepted. But we can understand cases in which the purchaser was induced to take property, which otherwise he would not have taken in order to obtain the sale to him of other property which he desired. In such a case as that it might well be that although the whole of the purchase-money was refunded to him, it would be to his disadvantage to be left with the incumbrance-- of a portion of the property."
10. It will have been noted that the learned Judges have recorded their own hesitation in returning this opinion because, as they have pointed out, far from causing any wrong to the vendee, it was of advantage to him because while he got the full price he had paid to the vendee, he would have been able to keep back from the pre-emptor a part of the property free of any cost. The learned Judges have quoted 6 All. 370-- and 10 All. 182 In support of the proposition laid down by them but in my opinion, they are strikingly dissimilar. 6 All. 370 was decided by the celebrated Judge, Mr. Justice Mahmood. It was a case of two rival pre-emptors, one of whom had a superior right. The suit of the one with the inferior right had been dismissed and on appeal Mr. Justice Mahmood held that "on the principles of equity, the suit of the rival pre-emptor should not have been dismissed but that a decree ought to have been passed in his favour also, conditional on the failure of the pre-emptor with the superior right, to deposit the decretal amount in time". IL was in this connection that the learned Judge said: " . . . . Every suit for pre-emption must include the whole of the property subject to pre-emption conveyed by one transfer, and that when there are rival suits it is the duty of the Court to determine which of such rival suits is to succeed, and if more than one suit succeed, what extent of the property transferred is to be decreed in such suit. The rule Is based upon the equitable principle that a pre-emptor, in seeking to enforce his right, shall not be allowed to break up the bargain which gave rise to his right. The principle has been adopted both by this Court and the Calcutta High Court, and requires no citation of authorities. Such, then, being an essential condition of a pre- emptive claim, it seems to us that decrees, in cases where two rival pre-emptors of the same degree seek to enforce pre-emption, as each of them necessarily must do, in respect of the whole property conveyed by one transfer, are defective if they dismiss the suit for any portion of the properly, without providing for the contingency of the rival pre-emptor-decree-holder omitting to enforce his decree in respect of the share decreed try him."
11. Rival pre-emptors when entitled to specific shares simulta--neously have to pay proportionately. If either of them were allowed to pre-empt only his share, without providing for the contingency of the rival decree-holder not enforcing his decree to the extent of his share, it would certainly mean allowing partial pre-emption because the vender won't get the entire I, price and the par, paid for may have been the one for which he had made the bulk payment; he is thus compelled to keep that part which he may not have been interested to purchase, on payment of a price that was not of his liking or that he may have not been prepared to pay had that part alone been purchased by him. That Mr. Justice Mahmood could not be understood to have meant by these words that a pre- emptor who is prepared to pay the entire sale-price for a part of then property sold, could also be thrown out of Court by condemning his claim as partial pre-emption, is also evident from the following passage appearing in 8 All. 462: " . . . . . . The principle or ratio decidendi of denying the right of pre-emption, except as to the whole of the property sold, is that by breaking up the bargain the pre-emptor would be at liberty to take the best portion of the property and leave the worst part of it with the vendee."
12. "Now this being so, the decree of which the decree-holder could avail himself was the decree which he himself obtained and not the decree which had been passed against him whatever its terms :nay have been. The present respondent Arjun allowed his decree for pre-emption to lapse by reason of not having deposited Rs, 1,308-9-0, which that decree required him to do within thirty days, and that decree could not therefore be of any further use to him. Having thus foregone the benefit of his decree, I do not think he is entitled to execute the decree which Srfaraz had obtained, simply because that decree, with reference to the other decree, allowed Arjun to pre-empt the remaining 2 annas 6 pies share within fifteen days of the default of payment of the purchase- money by Sarfaraz. The effect of the ruling of the lower appellate Court would be to split rip the bargain of sale, because if Arjun could pre-empt only the 2 annas 6 pies share as he is seeking to do here, the remaining 3 annas would still be left in the hands of the vendees. The view of the law taken lay the lower appellate Court is erroneous, because it is opposed, as I have already said, to the very fundamental principles of the law of pre--emption."
13. The Division Bencb bas referred to 6 All. 423 and 6 All. 455 while laying down the general proposition that a person claiming pre-emption must claim the whole property sold and not, part only, if lie has, against; the vendee, a pre-emptive right to the whale. In 6 All. 423, the whole property was sold for Rs. 2,000 but tire plaintiffs claimed the right of pre-emption in respect of a share only "on payment of Rs. 400 or any other amount which the Court might adjudge as a proportionate part of the purchase---money". The trial Court had dismissed the suit on the ground of partial pre-emption but the first appellate Court decreed it. An appeal was accepted by a Division Bench and the suit was dismissed. Accepting the appeal, Mr. Justice Mahmood explained the doctrine of partial pre-emption in the following words :- "It is a fundsmental principle of the law of pre-emption that the pre-emptor cannot break up the bargain of sale by suing only for a portion of the property conveyed by the sale which gave rise to the pre-emptive claim; and the rule has been repeatedly adopted by the Calcutta High Court (Cazee v. Sheikh Musseeutoolla), Abdool Ghuffoor v. Noor Banoo; (Izzuttoolla v. Bhikaree Mollah) in cases which appear from the reports to have been governed by the Muhammadan Law of pre- emption. But the doctrine has its origin in the general principles of justice, equity, and good conscience, and the reason of the rule is that the very nature of the pre-emptive right means that the pre-emptor can substitute himself in the place of the purchaser only by taking ail the benefits as well as all the disadvantages of the sale is respect of which he chooses to pre-empt-an illustration of the maxim of law that he who takes the benefit ought also to bear the burden. He is not allowed to exercise his choice by pre-empting only a portion of the property sold, for if fertile land is sold in conjunction with barren land under one and the same bargain of sale, it would be opposed to natural justice to allow the pre-emptor to take only the fertile land and to leave the barren tract to the purchaser, who would probably have not bought the waste land at all, unless he acquired with it also the ownership of the fertile area. But this is not the only reason upon which the rule is based. The right of pre-emption owes its origin to the policy that the introduction of a stranger into an estate will not be conducive to peace, but will disturb the quiet enjoyment of their rights by the co-sharers of the vendor. Now, if a pre-emptor objects to the introduction of a stranger, he must necessarily object to his introduction, en principle, as a proprietor of any part of the estate, or he must not object at all."
14. "I do not think that plaintiff could select one of the persons interested in a particular sale and claim the right of pre-emption in respect of such sale against that person alone, omitting others similarly interested."
15. This would only mean that a pre-emptor cannot be allowed to pick and choose, but it would be going too far to assume that the learned Judges intended also to coves the case of a plaintiff who was prepared to pay full price for part property only because that question was not before them. In 149 P R 1889, there was a sale by one Hindu in favour of another Hindu, one of whose adopted sons was impleaded after limitation had expired. It was held that the whole suit had abated. The question as to whether the plaintiff was entitled to remainder of the property on payment of full price was neither raised nor gone into and could perhaps neither be raised nor gone into because the parties being Hindus, the shares of the heirs were not ascertainable. In 66 P R 1896. 1:nd had been sold to three persons for a lump sum of Rs. 2,000. 2/3rd jointly in favour of two brothers and 1/3rd in favour of a third person. One of the two brothers died before institution of the suit and one of his legal representatives was impleaded beyond limitation. It was held that the suit being barred against the legal representative, was also barred as a whole. It will be seen that as there was no offer by the plaintiff to purchase the remaining property on payment of the entire gale-price of Rs.
16. 2,000 the Court did not go into this question. On the other hand, from the following passage, such a possibility seems to me to have been conceded: "In our opinion the sales of the shares could only be said to be distinct if specific performance of the bargains could be separately claimed and enforced either by the seller or by the purchasers.
17. We do not think that Punjab Singh could have sued to enforce the contract of sale for his share on payment of a proportionate share of the purchase money. The reply of the seller would have been that she had contracted to take Rs. 2,000 for the whole land, and was not bound to tale anything less, and there can be no doubt that her defence would have been successful." by the Full Court. The ultimate result was that both the questions were decided in the negative. Had the Court decided the first question in the affirmative, even then it should have made no difference because clearly, the pre-emptor wasn't pre-empting part of the property on payment of full price.
18. "The right of pre-emption is not a right of purchase either from the vendor or the vendee, but it is one of substitution for the vendee in the original sale and therefore if the plaintiff had brought the suit against one of the joint purchasers only and claimed possession of a fraction of the property sold on payment of the proportionate share of the purchase price, his suit would have failed on the short ground that it did not embrace the entire property sold, but was one foe partial pre-emption.
19. It is no doubt true that it is mentioned in the sale-deed that the two vendees were to take the property in equal shares, but this does not male airy difference for there was no specification of the amount contributed by each vendee, and a perusal of the deed shows, that so far as the vendor was concerned it was a single and indivisible bargain, and not two distinct and divisible transactions which for the sake of convenience had been written on one piece of paper."
20. Out of the two Lahore cases wherein a contrary view has been taken, namely, 132 I C 895 and AIR 1933 Lah. 33, the latter seems not to have been brought to the notice of the learned Judges but the former one was dissented to. Coldstream, J. Who was a member of the Bench, had written the judgment in 132 T C 895. In a note appended to the latter judgment, he has accepted the position that the view he took in that case was incorrect.
21. A ruling often cited on the subject: is AIR 1935 Lah. 635. Land was sold to two persons in equal shares against a consideration of Rs. 2,000. One of them had a right of pre--emption. A collateral sued for pre-emption of the one-half sold to a stranger, on payment of Rs. 500 which he later sough to raise to Rs. 1,000. It was held that the suit was hit by the doctrine of partial pre-emption. It will be seen that the pre-emptor at no stage offered to purchase the one-half of the stranger for the entire price of Rs. 2,000. On the other hand, the right to pre-emit a part sin payment of full price seems to have begin accepted as the learned Judges stated :- "As remarked in the Treatise on the Law of Pre-emption in the Punjab by Sir Shadi Lal. Edn 3 p, 452, it is a well --established principle of the law of pre-emption that a pre-emptor, whose right extends over the entire property sold, mast take over the bargain in its entirety, and has no right to pre-emit a part of the property sold on payment of a pro--portionate part of the price."
22. PLD 1960 Lah. 155, sale was in favour of seven persons, one of whom died pending appeal and two of his legal representatives were not brought on record within time and it was held that the whole appeal had abated. The learned Judge has merely followed AIR 1934 Lah. 429 while AIR 1930 Lah.
23. 33 was not brought to his notice, it is evident that the pre-emptor did not offer to purchase the remainder of the property on payment of the entire price.
24. There is, however, a Single Bench decision of this Court reported as PLD 1963 Azad J & K 44 laying down that partial pre-emption cannot be allowed even on payment of the whole price. The vendee, in this cage, died before the institution of the snit; one of legal representatives `had not been impleaded. The learned Judge merely relying upon 86 P R 1919 and AIR. 1925 Lab. 343, dismissed the plaintiff's appeal. 86 P R 1919 is not available here nor 9s the title of the cafe cited in the ruling, but from the brief facts mentioned, it seems that it perhaps corresponds to AIR 1919 Lab.
25. 25 entitled Mst. Hussain Bibi v. Hakim and others. In this case, there were two vendees, one of whom had died before the institution of the suit. It was held that the sale being jointly in favour of the vendees, the whole suit had, therefore, abated. In AIR 1925 Lab. 343 there were five vendees, only four of whom had been impleaded as defendants or at least that was the finding of the Courts. The fifth one was impleaded beyond limitation. It was held that the whole suit had abated. Neither do the judgments say that the shares of the vendees were specified nor is it mentioned that the pre- emptors sought to pre-empt the remaining property on payment of the entire sale-price.
26. On the other hand, we have 132 I C 895 and AIR 1930 Lah. 33 which have taken a contrary view. In Bishen Singh v. Karam Illahi (132 I C 895), the case was heard by Shadi Lal, C. J. And Coldstream, J.
27. The judgment was written by the latter while the learned Chief Justice agreed. Sale had taken place in favour of five persons in specified shares. The suit was dismissed and the District Judge dismissed the appeal on a preliminary objection. On second appeal, a preliminary point was taken by the respondents that the appeal had abated by reason of one of the vendees, Khera, having died and an application for impleading his legal representatives having been already dismissed as time-barred. Toe Division Bench, following AIR 1928 Lah. 572 held that the appeal had abated only to the extent of the deceised. It was decided on the 24th of November 1930. In Madho v. Mst. Mehro (AIR 1930 Lah. 33), the case was decided on the-30th of May 1929, by Shadi Lal, C. J. And Hilton, J. In this case land had been sold to some persons represented by defendants 2 to 13 in the pre- emption suit brought by one Madho. Both the trial Court as well as the District Judge held the suit time--barred. On second appeal in the High Court, an objection was raised that one of the defendants-respondents had died and the appeal had abated as a whole. The contention was rejected and it was held that it abated only to the extent of the share of deceased vendee which was 1/12th. The judgment is written by Hilton, J. And Shadi Lal, C. J. Has again agreed. A perusal of the two judgments does not show that the pre-emptor either offered or was required to take the remainder on payment of full p1ce. It is possible that it was for this reason that the Bishen Singh case was not followed in AIR 1934 Lah. 429 because unless full price is offered for the remainder, the doctrine of partial pre-emption does come into operation.
28. Thus the examination of case-law shows that these were cases where the pre-emptor failed because either a vendee was not impleaded or his legal representatives were wholly or partly left out. As I have shown, none of these cases except 11 All. 108 show that the pre-emptor was willing to get the remainder on payment of full price. Even in this case, the learned Judges have been anxious to record that they had disallowed the prayer with hesitation. It is a measure of their greatness and an inspiring example of self-detachment that they recorded their own doubts about the absolute correctness of the view taken by them. As regards the ruling; cited in their judgment, I have shown how they were strikingly dissimilar with the case before them. There is a plethora of case-law on the application and importance of precedents it is unanimously agreed that a general proposition of law laid down in a case must be interpreted in the light of its own facts and should not be deemed to have been intended to apply to cases with G materially different facts; otherwise progress in the development of law is bound to retard and the Judges unduly an unreasonably obstructed on the dispensation of justice. Reference may, in this connection, be made to the following observations of the Earl of Halsbury, Lord Charceller, in Quinn v. Leathem (1901 A C 495) as appearing in AIR 1931 Mad. 55 "There are" said his Lordship, "two observations . . . . . . . Which I wish to make and one is . . . . . . . That every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it."
29. An instance in point, under the Pre-emption law itself, is 8 All. 462 and 19 All.
148. In the first case where there was specification of shares as well as the price paid by them, Mr. Justice Mahmood held that the co-vendees with a right equal to that of the pre-emptor, could not be deprived of their shares on account of having joined a stranger in the sale. In 19 All. 148, a case where there was only the specification of shares but not of price, the Full Bench held that the non-specifica-- petition of price paid by each, made no difference and that the same result followed. Therefore, it is only reasonable to say that the rule laid down in 6 All. 423 was intended only for cases, as the one before his Lordship, wherein a pre-emptor entitled to pre-empt the entire property sold, sought to subject the bargain to his own convenience by suing for a part of the property only on payment of a proportionate price, because it would certainly be a capricious choice for a pre-emptor not that he was abandoning a part of the property, for that is foolish and not capricious but because he was doing so to injure the vendee rind to get fat at his cost by paying only part of the price which might ostensibly look reasonable but does, on deeper examination, unfold its capriciousness.
30. Dealing with the same point in Civil Appeal 1\o. 49 of 1972, Ahmed Din v. Siraj Din and others, I remarked : "'What, it seems to me, is meant by the doctrine is that no pre-emptor can be allowed to pick and choose; i.e. Be cannot select a piece out of the whole and seek to be substituted there--in for the vendee on payment of a proportionate price, because if that were allowed, he could pick up the best and leave the worst part unpre-empted. It doesn't infrequently happen that the property purchased by a vendee is not entirely of his liking. While purchasing culturable land, one has at times to purchase banjar land also; one may wish to purchase only the -piece which is adjacent to ore's house but the vendor being unwilling to sell it alone, one has to purchase some additional un- needed land also. In such cases the vendee actually pays a much higher price for tie piece be needs or the culturable part of it than for that portion which is actually thrust upon him by the Vendor."
31. But what is the caprice of a man like the pre-emptor in the instant case who, entitled to get 28 kanals and 12 marlas upon a certain price, by his own folly, stands deprived of about two kanals without any reduction in the price and how does the equity's understandable solicitude for the vendee get hurt in such a case? After all, justice, equity and good conscience do not move in any particular direction only ; how are these frustrateo in a case where the pre-emptor enforces his right only to a part of the property but by way of self-punishment, offers to pay the whole price. The argument that the remainder may be a liability, is more fictional than real because if a piece of immovable property were absolutely valueless, the vendee is welcome to abandon it; after all he Is under no compulsion to keep it. At least in the present case, it is not valueless. It is culturable land.
32. Frankly speaking, I fail to visualise such a situation and that too with the population explosion of the 20th century and man's inherent unsatiated greed. In such a situation, far from coming under any burden, he is s beneficiary and is able to retain ownership of a part of property without having paid anything for it, not even the cost o" stamps.
33. Respectfully dissenting, therefore, with the view taken in 11 All. 108 and PLD 1963 Azad J & K 44, 1 accept the appeal of Muhammad Beg also and hold that the suit having abated only to the extent of 7/120 (the share of Maroof Jan), he is entitled to pre-empt the rest of the property sold on payment of full price. Both the cases are, therefore, remanded to the District Judge for fresh disposal. The parties shall bear their own costs of this Court.
34. A certificate of fitness for appeal to the Division Bench 9s hereby issued in favour of both the parties in both the appeals.