BISHAN SINGH & OTHERS versus KHAZAN SINGH & ANOTHER

Citation: [1959] 1 S.C.R. 878 · Decided: 20-05-1958 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

• 
878 
SUPREME COURT REPORTS 
[1959] 
Adityan 
v. 
J(andaswanii 
such candidature. Hence, he said, s. 82{b) required 
that they should have been made parties to the peti-
tion. 
W' e are of opinion that when s. 82(b) talks of 
allegations of corrupt practice against a candidate it 
means allegations that a candidate has committed a 
corrupt practice. Allegations can hardly be said to 
be "against" one unless they impute some default to 
him. So allegations of corrupt practice against a 
candidate must mean that the candidate was guilty of 
corrupt practice. 
vVe are also unable to appreciate 
how an allegation that a candidate accepted a grati-
fication paid to him to withdraw his candidature is an 
allegation relating to a corrupt practice. The accept-
ance of the gratification does not relate to any 
corrupt practice, for we have earlier shown that the 
corrupt practice consists in the giving of the gift and 
not in the acceptance of it. 
Sarkar J. 
¥ay ao. 
In the result this appeal fails and it is dismissed 
with costs. 
Appeal dismissed,. 
BISHAN SINGH & OTHERS 
v. 
KHAZAN SINGH & ANOTHER 
(S .. R. DAs C. J., BHAGWATI, S. K. DAS and SUBBA 
RAO JJ.) · 
Pre-emption, nature of the right-Pre-emptor filing suit and 
obtaining decree-Second pre-emptor of equal degree filing suit for· 
pre-emption-Fii'st pre-emptor depositing pwchase money and obtain-
ing possession-If suit of second pre-emptor can succeed-Lis 
pendens-Scope-Punjab Pre-emption 
Act (Pun. I of I9I3), 
ss .. r7, 28. 
Upon the sale of certain village land the appellants filed a 
suit for pre-emption, and a compromise decree \Vas passed allO\V-
ing pre-emption provided the appellants deposited the purchase 
• amount by a certain date. The appellants deposited the am~unt 
and got posses.sion of the land. 
Before the appellants deposited 
• 
S.C.R. 
SUPREME COURT REPORTS 
879 
the amount, the respondents who were pre-emptors of an equal 
degree, filed a suit to enforce their right of pre-emption. The 
appellants contende,d that the land could be divided between 
two equal pre-emptors only when both the suits were pending 
before the court at the time of the passing of the decree, and 
that the appellants having obtained the decree and paid the 
amount got substituted in place of the venclees and the res-
pondents could succeed only by establishing a superior right of 
pre-emption. The respondents countered that they had a statu-
tory right under s. 17 of the Punjab Pre-emption Act to share 
the land with the appellants and that the appellants, having 
been substituted in place of the vendees pendente lite, were hit 
by the doctrine of lis pendens and could not claim a higher right 
than the venclees : 
Held, that the respondents' suit could not succeed as they 
did not have a superior right of pre-emption over the appellants 
who had become substitutedin place of the vendees upon pay-
ment of the purchase money under their decree. 
A pre-emptor has two rights: (1) inherent or primary right 
to the offer of a thing about to be sold and (z) a secondary or 
remedial right to follow the thing sold. 
The secondary right 
is simply a right of substitution in place of the original 
vendee. 
Dhani Nath v. Budhu, 136 P. R. 1894 at p. 5n and Gobind 
Dayal v. Inayatullah, (1885) I.L.R. 7 All. 775, followed. 
In a suit for pre-emption the plaintiff must show that his 
right is superior to that of the vendee and that it subsists at the 
time he exercises his right. This right is lost if before he exercises 
it another person with an equal or superior right has been 
substituted in place of the original vendee. The Punjab Pre-
emption Act defines the right of pre-emption and provides a pro-
cedure for enforcing it. It does not enlarge the content of this 
right nor does it introduce any change in the incidents of the 
right. Section 28 of the Act does not preclude the Court from 
giving a decree for pre-emption in a case where the suits are 
not joined together and one of the suits has been decreed sepa-
rately. 
The doctrine of lis pendens applies only to a transfer 
pendente lite, but it cannot affect a pre-existing right. If the 
sale is a transfer in recognition of a pre-exisijng and subsist-
ing right, it would not be affected by the doctrine, as the transfer 
does not create a new right pendmte lite but if the pre-existing 
right became unenforceable by reason of limitation or otherwise, 
the transfer, though ostensibly made in recognition of such a 
right, in fact

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