GUMAN MAL LODHA, J. - (1.) A preliminary objection has been taken by Shri P. D. Mathur, the learned counsel for the defendants-respondents that since the sole plaintiff appellant-Gopi Chand expired in March, 1977, the suit for pre-emption cannot survive and the legal representatives cannot continue it.
(2.) IT is not disputed that the sole plaintiff-Gopichand has expired in 1977 when this appeal was pending. IT is also not in dispute that at the relevant time, when the cause of action for this suit arose, there were no statutory law for pre-emption in the form of Rajasthan Pre-emption Act. IT is also common ground that even though there was no statutory law of pre-emption yet in the former Jaipur State, the custom of pre-emption used to prevail, based on the Mohammedan Law. IT is also common ground that this custom of pre-emption based on Mohd. Law was later on modified by a notification of 1927. It is also common ground that both the lower courts have dismissed the suit for pre-emption on various grounds and one of the ground is that the requirements of Talab was not fulfilled. Now. the controversy is, whether in the above state of circumstances, the objection deserves to be accepted or is to be rejected. Both the lower courts have referred to a number of decisions, in this respect. In Mohd. Ismail Vs. Abdul Rashid (1) it has been held that if the pre-emptor-plaintiff died before the decree is passed, the right cannot survive to the heirs. Two reasons have been given by the Full Bench of Allahabad High Court, in that case, one, that the pre-emptor must be possessed of the property on account of which he claims pre-emption on the date of the sale; second, that, the pre-emptor must be firmly possessed of his own property till the date of the decree in his favour, and if he dies before that date, this condition is not fulfilled. The Full Bench further held that this right assumes a personal aspect for the purposes of enforcement in a court of law; but if the decree is passed then the right becomes a proprietory right fit to be transferred as well as the inherited. The above principle of law laid down by the Full Bench of Allahabad High Court, based on the three-fold reasons, extracted above, deserves to be applied in the facts and circumstances of each case.
(3.) BEFORE I may consider their application it must be further mentioned that their Lordships of the Apex Court in Hazari Vs. Neki (dead) by his legal representatives (2) observed as under : "5. It is necessary to emphasise that we are dealing in this case with the statutory right of pre-emption under Punjab Act 1 of 1913 and its subsequent amendments and not with the right of pre-emption under the Moham-madan Law. In regard to the latter right it has been held that according to the Mohammadan Law applicable to the Sunny sect if a plaintiff in a suit for pre-emption has not obtained his decree for pre-emption in his life time the right to sue does not survive to his heirs. See Mohammed Hussain Vs. Niamat-un-nissa, (1897) ILR 20 All 88 It is not necessary for us to express any opinion on this point in the present case. " In Gopal Vs. Haridutt Sharam (3) it was observed that the custom of pre-emption was recognised in Jaipur City even earlier, that it was found on the Mohammedan Law but was modified by the notification regarding 'talabs'. This Court in Pyare Mohan Vs. Rameshwar (4) has, in terms, held that if there is death of the pre-emptor, the right does not survive to heirs. The decision in Mohd. Ismail Vs. Abdul Rashid (supra) by the Fall Bench of Allahabad High Court was followed by this Court in Pyare Mohan's case (supra ). ;