P L D 1962 (W (PLP)

ANWARUL HAQ, J.

This second appeal is by the defendant Mustaqim. It arises out of a suit for pre-emption brought against him by the respondent Sher Bahadur, in respect of a sale of land effected on the 15th of August 1956 by means of a registered sale-deed in favour of the appellant by a number of co-sharer. The plaintiff Sher Bahadur claimed a superior right on the ground that he was a collateral of the vendors. The vendee resisted the suit, among other grounds, by alleging that the plaintiff was a party to the sale, and was, therefore, estopped by his conduct from bringing the suit. The suit was tried by Mr. Gul Muhammad Qureshi, Senior Civil Judge at Campbellpur. He came to the conclusion that the plaintiff was estopped from claiming the right of pre-emption, and he, therefore, dismissed the plaintiff's suit. In appeal, the learned District Judge, Mr. Attaullah, came to a contrary finding on this issue, and as a result he decreed the plaintiff's suit.

2. The facts alleged by the appellant to prove waiver on the part of the plaintiff-respondent Sher Bahadur were these. One of the vendors was a man named Aitbar Khan who is the son of the plaintiff's sister, and who had appointed the plaintiff as his special attorney for negotiating and completing the sale. The power of attorney was attested, but not registered. Sher Bahadur signed the sale-deed on behalf of Aitbar Khan, after it had been written by the petition-writer, Ghulam Sarwar (D. W. 2). When the sale-deed was presented for registration before the Tehsildar, he objected that the power-of-attorney in favour of Sher Bahadur should have been registered and, therefore, refused to proceed with the registration. Thereupon, the sale-deed was brought back to the petition-writer and amended, so as to exclude the share of Aitbar Khan, and consequently the area of land to be sold was reduced from 52 kanals 8 marlas, to 48 kanals, 1 marla, although the sale price was allowed to stand at the original figure of Rs. 2,

000. The amended sale-deed was then registered by the Sub-Registrar. Although in the written statement it was further alleged that it was the plaintiff Sher Bahadur who had negotiated the sale on behalf of Aitbar Khan, but there is no direct evidence to prove this assertion.

3. From the facts stated above, it is clear that the plaintiff Sher Bahadur acted in this matter as an agent or representative of one of the intending vendors, although ultimately the share of that particular vendor had to be struck off from the sale due to a defect in the power-of-attorney held by the plaintiff on behalf of that vendor. In other words, the plaintiff was associated with the sale, or, at any rate, with some stages in the transaction, as an agent of Aitbar Khan. The question Is whether his association with the sale in a representative capacity constitutes waiver of the right of pre-emption which vested in him as a collateral of the vendors ?

4. In order to answer this question properly, it seems necessary to appreciate the precise nature of the right of pre emption. Section 4 of the Punjab Pre-emption Act of 1913 defines the right of pre-emption as meaning "the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only In the case of sales and in respect of such property only in the case of sales or of fore closures of the right to redeem such property." The nature of this right came in for a very exhaustive and illuminating dis cussion by the Full Court in the case of Sanwal Das v. Gur Parshad (90 P R 1909). The following passage from the opinion delivered by Mr. Justice Shah Din is directly relevent for our present purpose :- " The right of pre-emption, like other rights, has to be regarded in a two-fold aspect, (1) as a primary or antecedent right, and (2) as a secondary or remedial right. Viewed as an antecedent right, it exists before and independently of any wrongful act or omission, that is to say, it entitles the person of inherence in preference to a third person or a class of persons, to an offer of sale of the property, which is the object of the right, by the person of incidence, upon whom a corresponding primary duty to make such offer is laid. Viewed as a remedial right, it comes into existence after the primary right has been infringed by a sale of the property in question being made by the person of incidence to such third person or class of persons, and its purpose is the removal of the injury complained of by the substitution of the person of inherence for the vendee or vendees who aided in the infrige ment of the primary right."

5. The inherent or the primary right, that is to say, the right to have an offer of an Intended sale is inherent to the pre emptive property and continues attached with it and passes along with it to transferees, assignees, legal representatives and heirs, or in other words, it is a right attached to the pre-emptive property and is inseparable from it. The inherent right is, there fore, capable of transfer by the transfer of the pre-emptive property, but the remedial right vests not in the pre-emptive property, but in the person who held that property at the date of the sale. It is now well-settled that the right of pre-emption cannot be made the subject of sale or a bargain of any kind,1 nor can a pre-emption decree be transferred to a third person,] for the reason that such a decree 9s a judicial recognition of a personal right of the pre-emptor. (See 7 I L R All. 5350 133 P R 1907 (F B), 94 P R 1902 and A I R 1924 Lah. 615). It is, therefore, clear that the right which the plaintiff-respondent is seeking to enforce in the present case is a personal right accruing to him under the relevant law.

6. On the question of waiver In the matter of the exercise of the right of pre-emption, the only provisions available In the C Punjab Pre-emption Act of 1913 appear to be those embodied In sections 10 and 20 of the Act. Section 10 lays down that "in l the case of a sale by joint owners, no party to such sale shall be permitted to claim a right of pre-emption. "Section 20, which is to be read in continuation of section 19, contemplates that the right of pre-emption of any person shall be extinguished unless such person takes the action prescribed by this section on receipt of a notice of intended sale served on him under the provisions of section 19 of the Act. The Punjab Act does not contain any provision like the one embodied in section 21 of the North-West Frontier Province Pre-emption Act of 1950, namely, that "a person shall be deemed to have forfeited his right of pre-emption if he is found to have committed any positive act in the completion of the sale." It seems to us, therefore, that in order to determine whether in a case of the present kind, there is waiver of the right of pre-emption or not, we have to fall back on general principles.

7. Waiver, as commonly understood, is an Intentional reliquishment of a known right. It may consist either of a posi tive act or relinquishment or of conduct such as would warrant anlB inference of relinquishment of the right. The learned counsel appearing for the parties have cited several authorities to illustrate what kind of conduct would or would not amount to waiver in pre-emption cases These authorities may be briefly noticed at this stage. On behalf of the appellant, reliance was placed on Fateh Chand and others v. Kirpa Singh and others (48 H A 1912), in which it was observed that "where two plaintiffs-pre-emptors were found to have been present and helped in the sale negotiations and one of them assisted in demarcating the land sold out of a large field and thus by their conduct actively induced in the vendees' mind the belief that they were perfectly agreeable to the purchase by the vendees and did not intend to enfor cc their rights, such conduct of the plaintiffs amounted to waiver and their suit must accordingly be rejected. Reliance was also placed by the learned counsel for the appellant on Syed Muhammad Yamin v. Babu Ganesh Prasad Singh and another ((1929) 18 1 C 226). In that case "A sold a certain property to B who was not a co-parcener in the mahal. Before the registration of the sale-deed A took the draft sale-deed to C, who was a lawyer as well as a co-sharer. C read the draft and found B's name there as vendee but did not assert his right of pre-emption, but subsequently sued for pre-emption." It was held that `"C was, under the circumstances, estopped from setting up his claim for pre-emption." This particular case has been noticed by the learned Judicial Commissioners in Muqadas Shah son of Niqab Shah Mian v. Zakirullah son of H. Abdul Mustan and another (A I R 1943 Pesh. 60), to which we shall refer later, and it has been rightly pointed out that this was a case governed by Muhammadan Law, which applies to pre-emption matters in the United Provinces, and according to Para. 186 of Mulla's Muhammadan Law, certain formalities are required before a man is entitled to the right of pre-emption and one of which is that immediately on receiving Information of the sale he must declare his intention to assert his right. This authority, therefore, does not help the appellant.

8. On the other hand, fn Balj Nath Singh and others v. Faqiroy Singh and others (A I R 1950 All. 190), although a pre-emptor had identified the vendor before the Sub-Registrar, who was stated to have read out the sale-deed in the presence of the pre-emptor, the learned Judges held that the mere identification of the vender by the pre-emptor did not lead to the inference that the pre-emptor knew the contents of the sale-deed, as there was a possibi lity that when the deed was read out the pre-emptor might not have been present, although he was present at the time when he identified the vendor. In Alam Sher Khan v. Allah Din (A I R 1939 Lah. 517), it was held that "attendance at an auction-sale does not debar a pre emptor from later pre-empting the sale." In Ganga Singh and another v. Jhandasingh and another (A I R 1948 lash. 5), it was observed the "where a pre-emptor who holds a mortgage over the land sold, accepts the mortgage money without expressing his intention to enforce his right of pre-emption, his conduct does not amount to waiver so long as the period of limitation for the suit has not expired." In Shah Podhraj v. Sundar Singh and another (100 P R 1885), it was held that "the plaintiff who was a professional petition-writer, could not be held to have waived his right merely because he had made a rough draft of the deed of sale of the property in suit for the defendant". This view was followed by the learned Judicial Commissioners in Muqaddas Shah son of Niqab Shah Mian v. Zakirullah son of H. Abdul Mustan and another. In Haji Khan Muhammad and others v. Yaqub Khan and others (P L D 1956 Pesh. 96), it was observed that "mere attestation of a registered deed or the identification of the executant before the Registrar is not enough to fix a witness with the knowledge of contents of the deed." In Kidar Nath and others v. Bagh Singh and others (A I R 1937 Lah. 504), the learned Judges were pleased to observe that "to deprive a person of any legal right that he possesses, there must be clear and cogent evidence on record justifying that course. They went on to say that "in a suit for pre-emption, the mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the prospective pre-emptor had knowledge of the sale would not be enough to prove that he had positively relinquished the enforcement of his right."

9. It would be seen that none of these authorities is of direct assistance in answering the question which arises in the instant case, for the reason that they do not deal with the situation where a pre-emptor acts in a representative and not his personal capacity, while associating himself with the sale which he later on seeks to pre-empt. Perhaps the two cases which come closest are 100 P R 1885 and A I R 1943 Pesh.

60. Although there is no elaborate discussion on the point, but it is clear that the learned Judges were distinguishing between the two capacities in which the pre-emptor had acted, namely, his professional capacity when he wrote the sale-deed and his personal capacity when he asserted the right of pre-emption. His conduct or action in his profes sional capacity was not held to amount to waiver of the exercise of his personal right of pre-emption.

10. There is authority for the view that one and the same person may possess two separate characters, one private, and the other representative of the rights of others, and a representa tion made by him in one character is not binding on him in the other. In other words, acts done by a person in a representative character do not create an estoppel when a claim is made by him in his personal capacity. In Sena Yasim Sahib and another v. Kadur Ekambara Iyer (54 1 C 497), a Division Bench of the Madras High Court observed that "a trustee who alienates trust property for his own private purposes is not estopped from instituting a suit as trustee to recover the property for the benefit of the trust." In Ram Harakh and others v. Hanwant Ram (A I R 1930 P C 249 (1)), which is a very short judgment, Their Lordships observed that "anything done by a person in his representative character cannot create an estoppel on what is a personal claim by himself by a perfectly different arrangement."

11. In the present case, the plaintiff-respondent Sher Bahadur did not act in his personal capacity when he signed the sale-deed in the first instance on behalf of his nephew Aitbar Khan, but merely as the latter's agent or representative. And once it was decided to exclude the share of Aitbar Khan from the sale, Sher Bahadur's name was struck off from the sale-deed, and there is no evidence, that he continued to associate himself with the completion of the sale thereafter. The right of pre-emption being a personal right, and the representative capacity in which Sher Bahadur acted in the matter of the sale in question being distinct from his personal capacity, we consider that no question of waiver arises in this case. As no other point was raised before us the appeal fails and is dimissed with costs. K. B. A. Appeal dismissed.