KHARATI RAM Vs. RAM LAL AND ORS.
HIGH COURT OF PUNJAB AND HARYANA
Ram Lal And Ors.
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Weston, C.J. -
(1.) THE question referred to the F.B. is in these words:
Whether a suit to enforce a right of pre -emption in the case of a sale of an equity of redemption of urban immovable property when the pre -emptor pre -empts the immovable property treating the sale of equity of redemption to the mtgee. in possession as being a sale of the property itself comes within Sub -section (3), Section 30 of the Punjab Pre -emption Act, 1913?
(2.) THE question indicates that in the suit from which the reference has arisen the pre -emptor has claimed not only to pre -empt the rights sold to the mtgee. in possession, but to pre -empt the entire property so as to extinguish all rights of the mtgee. Under Section 4 of the Punjab Pre -emption Act, right to pre -empt is created in respect of sales. It is well established that there is no right of pre -emption of a mtge. By pre -emption the pre -emptor is substituted in the place of the seller at the date of sale. It seems arguable that a suit to enforce a right of pre -emption, which is a special right created in the Punjab by statute, must be a suit simpliciter for that purpose. I do not wish, however, to express an opinion one way or the other whether a composite suit for pre -emption and redemption is competent for by the reference we are concerned only with the question of limitation. The material provisions of the law of limitation relating to pre -emption suits are Article 10, Sch. II to the Limitation Act, Section 30 of the Punjab Pre -emption Act, 1913 and the general residuary Article 120, Sch. II, Limitation Act. The question refd. recites that the property is urban immovable property and the referring order shows that the sale by the mtgor. which is the cause of action for the pre -emption suit, was for consideration of Rs. 50 and was effected by unregistered instrument.
(3.) ARTICLE 10, Sch. II, Limitation Act, is as follows:
Description of suit. Period of Time from which limitation. period begins to run. 10. To enforce a right One year When the purchaser of pre -emption, whether takes under the right is the sale sought to founded on law or be impeached, general usage or on physical possession special custom. of the whole of the property sold, or, where the subject -matter of the sale does not admit of physical possession, when the instrument of sale is registered.;
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