BHANDARI, J. - (1.) - 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. Goran's 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 plaintiff's 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. 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. 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 held that the right of pre-emption accrues on the completion of a contract of purchase and sale, and is not injured or dissolved by any subsequent dissolution of the contract. In that case the agreement to purchase and sale had been cancelled subsequent to the institution of the suit for pre-emption and the lower appellate court had held that the claim for pre-emption was not consistent with justice and was not in accordance with Mahomedan Law. This doctrine was negatived by the High Court with the observations: "the first point which is taken on the special appeal to us is, that this doctrine laid down by the appellate court is opposed to the Mahomedan Law; that the right of pre-emption having once accrued cannot be cancelled by the acts of the parties through whom that right came into force. In the Hedaya, Book XXXVIII, Chapter 3, on the subject of pre-emption, at Page 592, it is written: "when a man acquires property in lands for a consideration, the privilege of sbuffa takes place with respect to it, because it is in the power of the sbuffee to fulfil the stipulation. " And at page 598 it is laid down that "if the seller and purchaser agree to dissolve the contract, the privilege of sbuffa is established to the sbuffee; because in those instances the rejection or dissolution is a breaking off with respect to the seller and purchaser, in as much as they are their own masters and moreover will and intend a breaking off; yet with respect to others, it is not a breaking off, but rather in effect a new sale since the characteristic of sale, namely, an exchange of property for property with the mutual consent of the parties exists in it; and as the sbuffee is another, it is, therefore, a sale with respect to him, whence his right of sbuffa must be admitted. " "the appellate court is wrong in the law which it has laid down as regards the breaking off of the right of pre-emption. The law which we have just quoted distinctly lays down that the contract of purchase and sale having been cornpleted the right of pre-emption accrues, and no subsequent dissolution of the contract between the parties injures or dissolves the right of pre-emption. " In my opinion, the above authority lays down the correct law. I am further of the view that even if the sale is cancelled or declared in-effective by a court of law in a suit to which pre-emptor is not a party, such declaration would not affect the right of pre-emptor. He has a right to be substituted and takes whatever is conveyed by the sale-deed. His position is the same as that of the vendee under the sale-deed. Still he is not the representative of the vendee in the sense that any judgment or decree obtained against the vendee may be binding on him. If any person has any claim in respect of that property, that claim in order to bind the pre-emptor must be adjudicated in his presence. In tills view of the matter, the declaratory decree dated the 25th of May, 1951 has got no affect on the present suit of preemption. If Mst. Durga and Mst. Dhapan have any rights independently of Mst. Goran in the property sold by their mother to Sunderlal, they may assert it in any appropriate manner if so advised but so far as the present suit is concerned, it cannot be defeated. I may also observe that the observations of the learned District Judge that the declaratory suit was 'a fraudulent step" were not called for as they were made without any enquiry on this point. As result of the aforesaid discussion, the appeal has got no force and it is therefore dismissed. No order as to costs as the respondents have not put in their appearance. . ;