Law: Civil Procedure Code (V of 1908)

Section: O. XXII, r. 1

Law: Punjab Pre-emption Act (I of 1913)

Section: 4

Civil Procedure Code (V of 1908) O. XXII, r. 1 and Punjab Pre-emption Act (I of 1913), S. 4-Pre emption suit - Death of pre-emptor pending suit - Right of pre emption whether heritable and survives death of pre-emptor-Whether, when and what kind of heir can be impleaded as legal representative of a deceased plaintiff in such suit-[P L D 1960 Lah. 900 considered]. M transferred by sale agricultural land to a person for a sum of Rs. 5,610. N mother of vendor. M instituted pre-emption suit to pre-empt the land. Pending suit N died. S daughter of N and sister of the vendor M moving application for being impleaded as legal heir of her plaintiff mother N. Pending her application for being impleaded as legal representative under O. XXII, C. P. C. S also died. On her death her husband G put in application for being impleaded as legal heir and representative of his wife S. The question which called for decision in the case was: (i) whether the right to pre-empt was heritable and as such, S could be impleaded as legal representative of her mother N the deceased pre emptor; (il) whether G the husband of S claiming inheritance from S -could be impleaded as her legal representative in the circumstances. The contention on behalf of the vendee was that if the heirs of the pre emptor who died bad equal right with him i.e. if they could file a suit simultaneously then they should be deemed to have waived their rights if they failed to file suit. In the present case since S was a sister of the vendor M she had equal right of pre-emption with N and could have filed a suit simultaneously with her. This S failed to do and therefore S should be deemed to have waived her right. If S as original pre-emptor had waived her right of pre-emption then there could have been no suit to which G the husband and heir of S could succeed. Held: The principle of Order XXTI, C. P. C., Order XXII, rule 1 provides that the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Right to sue means a right to bring the suit asserting the right to the same relief which the deceased plaintiff asserted at the time of his death. Sarat v. Nani I L R 36 Cal. 799; Gopal…