Karam Chand and Another vs Kewal Krishan and Others

J.V. Gupta, J.—This revision is directed against the order of the trial Court, dated 22nd December, 1984, whereby the application filed on behalf of the Petitioners for bringing them on record as legal representatives of Shrimati Ram Piari Plaintiff (deceased) was dismissed. Two persons, Bhola Ram and Shrimati Ram Piari (now deceased) filed a suit for pre-emption claiming their superior right on the ground that they were tenants over the suit land at the time of sale by the vendors. During the pendency of the suit one of the Plaintiffs Shrimati Ram Piari died. The Petitioners, Karam Chand and Ram Kishan, sons of Jumma Ram, filed an application for bringing them on record as the legal Representatives of the deceased-Plaintiff Shrimati Ram Piari. Admittedly they claimed their right under a will, dated 2nd March, 1982, executed by Shrimati Ram Piari in their favour. This application was contested on behalf of the vendee-Defendants. It was pleaded by them that under the Punjab Pre-emption Act the right of pre-emption is not heritable and as such the legal representatives of Shrimati Ram Piari cannot be impleaded in this suit to enable them to continue the suit further. As per their stand the suit of Shrimati Ram Piari stands dismissed. The. main contention raised on behalf of the Petitioners before the trial Court was that in view of Order 22, Rule 5 of the Code of Civil Procedure, the Court is not to go into the question as to whether the right of pre-emption is heritable or not. The Court is bound to implead the Petitioners as legal representatives of the deceased Plaintiff Shrimati Ram Piari and the other questions can be determined only at. the time of final disposal of the suit. Learned trial Court came to the conclusion that the tenancy of Shrimati Ram Piari, deceased cannot be continued through the Petitioners as they did not fall within the category mentioned u/s 8 of the Punjab Security of Land Tenures Act and thus concluded that they did not become the legal representatives of Shrimati Ram Piari, deceased-Plaintiff, consequently their application was dismissed. Dissatisfied with the same they have filed this petition in this Court.

Learned Counsel for the Petitioners vehemently contended that at this stage the question as to'' whether the tenancy rights can be willed away or not or whether the right of pre-emption on the basis of tenancy has come to an end or not is not to be gone into. The Petitioners, according to the learned Counsel, are entitled to be impleaded as legal representatives under Order 22, Rule 5 of the Code of Civil Procedure. In support of this contention reference was made to Hari Chand and Anr. v. Banwari Lal and Anr. 1981 (2) R.L.R. 535. It was next contended that Shrimati Ram Piari being a statutory tenant was competent to make the will of her rights in the suit land and therefore, the legatees were entitled to be impleaded as her legal representatives.

On the other hand learned Counsel for the Respondents submitted that Shrimati Ram Piari was a tenant at will arid, therefore, she was not corixpetent to will away her right in the land. In support of his contention he referred to AIR 1933 400 (Lahore) , Anwarali Bepari and Others Vs. Jamini Lal Roy Choudhury and Others, and Raman Lal Vs. Bhagwan Das, .

After hearing learned Counsel for the parties I do not find any merit in this petition, as admittedly it is a suit for pre-emption, in which the right was, claimed on the basis that Shrimati Ram Piari (now deceased) was the tenant on the suit land under the Vendors. The suit can be continued by the legal representatives of the tenant if he leaves behind any male lineal descendant or mother or widow as contemplated u/s 8 of the Punjab Security of Land Tenures Act. If the tenant does not leave behind any such male lineal descendant or mother or widow the continuity of tenancy conies to an end on the death of the tenant. Section 8 of the Punjab Security of Land Tenures Act is reproduced hereunder for ready reference:

CONTINUITY OF TENANCIES : The continuity of a tenancy shall not be affected by--

(a) the death of the landlord, or

(b) the death of the tenant, except when the tenant leaves no male lineal descendants or mother or widow, and

(c) any change therein under the same landowner and for the purposes of Section 17 and 18 of this Act, such tenancy shall be the last area so held.

What to talk of tenancy at will, even the inheritance of occupancy rights is governed by Section 59 of the Punjab Tenancy Act. There is no warrant for the proposition that the tenancy eights can be willed away by the tenant. It was held in Sawan Singh''s case (supra) while dealing with the Punjab Tenancy Act that there is no power in the occupancy tenant to dispose of the occupancy tenancy by a will taking effect after his death. The matter was also considered by this Court in Mahan Singh and Anr. v. Haryana State and Ors. 1978 P.L.R. 553, while interpreting Section 10-A of Punjab Security of Land Tenures Act. It was observed therein that:

That the short, question to be considered is whether the Petitioners are entitled to the benefit of the provisions of Section 10-A(b) of the Act or not. The said benefit can only be made available if the land is acquired by the State Government under any law for the time being in force or by any heir by inheritance. Disposition of property by will in no sense can be termed as inheritance. Thus Mahan Singh and Pritpal Singh who became owners of the property in view of the will made by Smt. Parbati cannot be termed as heirs by inheritance.

Thus viewed from any angle, Section 8 squarely provides that the continuity of the tenancy shall not remain intact after the death of the tenant when the tenant leaves no male lineal descendant or mother, or widow.

The contention that this question be left open and need not be decided at this stage has also no merits. The judgment relied upon in this behalf i.e., Hari Chand and another''s case (supra), has absolutely no applicability to the facts of this ease. It is a suit for pre-emption and the moment the pre-emptor dies, it being personal right, it dies with him. In this view of the matter this petition fails and is dismissed with costs.