However, a pre-emptor may insist the original purchaser to hand over the possession only under a decree from court of law. The decree ordering for the delivery of possession to pre-emptor is passed under Order 20 Rule 14 of the Civil Procedure Code 1908.
Such a decree specifies the date on which the property is to be transferred and also the date on or before which the price-money is to be paid. It may be noted that under the decree of pre-emption, the property vests in the pre-emptor from the date when he pays the purchase money to the original purchaser.
3. Between the original sale and re-sale of the property to the pre-emptor, the original purchaser is entitled to continue its possession. Accordingly, he is entitled to enjoy the rents and profits i.e. the usufruct of that property.
But, after payment of the purchase money as directed under the decree, the ownership vests in the pre-emptor; therefore the pre-emptor may claim menses profit if the property continues to be in possession of the original purchaser
4. It is significant to note that the pre-emptor does not get the title of the pre-empted property through original purchaser. He simply enters in the shoes of original purchaser in respect of all the rights and obligations of that property. Therefore, where the property was mortgaged, upon re-sale, the pre-emptor would get this property subject to that mortgage. Where the mortgagee has also the possession, the court may direct that the pre-emptor would get possession only after redemption of the mortgage.
5. A pre-emptor is entitled to get the property in the same state or condition in which it was purchased by the original purchaser. Where the original purchaser has made some improvements in the property between the original sale and its re-sale, the pre- emptor must pay the cost of improvement.
If, the improvement is of temporary character, he may insist the original purchaser to remove it from the property. Where the property deteriorates and its market value is considerably reduced due to negligence of the buyer, the pre-emptor may waive his right and refuse to re-purchase the property.
6. Where a valid and complete sale has been made but, price could not be paid fully or, the price is to be paid on any future date, the pre-emptors right of repurchase remains unaffected. In such a circumstance the pre-emptor can substantiate his claim and get the possession after paying full consideration to the vendor instead of paying to the Vendee.
The pre-emptor may pay the full price either immediately or, on the stipulated future date. However, the pre-emptor is entitled to get the possession only after paying full amount to the vendor.
7. As discussed earlier, the right of pre-emption is not affected by any attempted transfer of pre-empted property. Transfer of the pre-empted property by original purchaser to any other person would not defeat pre-emptors right to get the property.
Similarly, the death of original purchaser before re-sale to pre-emptor, also does not affect the pre-emptors right of re-purchase. The pre-emptor is entitled to re-purchase and get the possession from legal heirs of original purchaser.
8. The decree of pre-emption is non-transferable. A pre-emptor cannot transfer the decree of pre-emption to any other person; such transferee is not entitled to get possession on the basis of this decree. The reason is simple. The decree of pre-emption establishes the personal right of a pre-emptor. Being a personal right of the pre-emptor, it is not transferable right.