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Madho Prasad and ors. Vs. Shib Charan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All457
AppellantMadho Prasad and ors.
RespondentShib Charan and ors.
Excerpt:
.....join with them strangers or pre-emptors of a higher class join pre-emptors of a lower class and they ask for a joint relief as opposed to an alternative relief, that is, if they claim a joint decree and want to pre-empt the sale jointly. 5. we feel satisfied that the decision of the lower court is right and we, therefore, dismiss these appeals with costs......21, agra preemption act, dori lal and pooran must be deemed to have lost their rights to preempt. in suit no. 21 of 1944 dori lal and pooran have claimed that under a deed of gift executed by mt. nanni they have become co-sharers in the thok in which the property, sought to be preempted, is situate and have, therefore, a right superior to that of madho prasad and others to pre-empt the property. they, however, go on to say that in case it is held that the deed of gift executed by mt. nanni is for any reason invalid and they are held to be strangers, then no decree should be passed in their favour but a decree should be passed in favour, of the other plaintiffs who were the reversionary heirs of har deva and must be deemed to have become the owners of the property covered by the.....
Judgment:

Malik J.

1. These two appeals raise a very simple question of law. Two sale deeds were executed on different dates and to preempt each sale two separate suits were filed, that is, there were in all four suits. There were two seta of rival preemptors who filed these suits. Second Appeal No. 168 of 1946 arises out of Suit No. 10 of 1944 filed by Madho Prasad and others and Suit no. 21 of 1944 filed by Dori Lal and Pooran, who were plaintiffs first set, and six others, who were arrayed as plaintiffs second set, on the allegation that the suit should be decreed in favour of either the 1st or in the alternative in favour of the plaintiffs' 2nd set. Two similar suits were filed to pre-empt the other sale deed.

2. Madho Prasad and others pleaded that by reason of the fact that in suit no. 21 of 1944 Dori Lal and Pooran had joined with them six other persons as plaintiffs and had claimed an alternative relief, it was clear that either Dori Lal and Pooran were strangers or those other six plaintiffs were strangers and, therefore, by reason of Section 21, Agra Preemption Act, Dori Lal and Pooran must be deemed to have lost their rights to preempt. In suit No. 21 of 1944 Dori Lal and Pooran have claimed that under a deed of gift executed by Mt. Nanni they have become co-sharers in the thok in which the property, sought to be preempted, is situate and have, therefore, a right superior to that of Madho Prasad and others to pre-empt the property. They, however, go on to say that in case it is held that the deed of gift executed by Mt. Nanni is for any reason invalid and they are held to be strangers, then no decree should be passed in their favour but a decree should be passed in favour, of the other plaintiffs who were the reversionary heirs of Har Deva and must be deemed to have become the owners of the property covered by the deed of gift as Mt. Nanni had died before the execution of the sale deedi and they have, therefore, become co-sharers in the same thok and would have a right of preemption, that is, the two sets of plaintiffs claim adjudication of their rival claims and pray that, a decree may be passed in favour of the set which is deemed to be entitled to claim preemption. The two sets of plaintiffs do not claim a joint decree but a decree in the alternative.

3. The lower appellate Court has carefully gone into the question and has held that on a true interpretation of Section 21, Agra Preemption Act, it cannot be said that the two sets of plaintiffs have asked for a joint decree and, therefore, their rights cannot be affected. The lower appellate Court has relied on a Division Bench ruling of this Court, Sheo Balak Chaudhury v. Ram Bar an Chaudhury : AIR1933All788 , where it was pointed out that the object behind the section was that 'if a person possessing a superior right is not prepared to pre-empt the sale on payment of the whole price but finds it necessary to join with him a person who has an inferior right, so that they may share in the preemption money to be deposited, he by his conduet gives up his superior right and lowers himself to the status of the person whom he joins.' The other reason may be that if a pre-emptor joins with himself a stranger and has no objection to that stranger getting the property, there is no reason why he should be allowed to object to the vendee being a stranger or if he joins with himself a pre-emptor having an inferior right and the vendee is also a pre-emptor of the inferior class, there is no reason why he should be allowed to object to the vendee when he does not object to his co-plaintiff.

4. Section 21, Agra Pre-emption Act, provides-that:

Where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right; and where a pre-emptor of a higher class sues jointly with a pre-emptor of a lower class, he shall have no higher right than the person with whom he so sues.

As regards the second part of the section, we may profitably refer to Order 20, Rule 14, Civil P.C., and a decision of the Privy Council in Mahomed Wajid Alt Khan v. Puran Singh A.I.R. (16) 1929 P.C. 68. Order 20, Rule 14, Sub-rule (2) contemplates a decree in a suit where two rival plaintiffs, who are not sure who has the better right of pre-emption, file a suit in the alternative, and provides for the form of decree in such a case. That such a suit is possible is also clear from the observations of their Lord, ships of the Privy Council quoted by the lower Court. Their Lordships have said:

When several co-sharers desire to exercise this right, and there are differences between them as to their shares or priorities, they may join as plaintiffs in a suit for pre-emption against the stranger-purchaser, and may obtain in that suit a decision, not only as to their right to pre-empt, but also as to their rival claims and a decree, as provided in Order 20, Rule 14, Sub-rule (2), Civil P.C, in accordance with which each pre-empting plaintiff will be entitled in default of the others to pre-empt alone.

If learned Counsel's contention is accepted, then in a suit where two persons join as plaintiffs and ask for a decree in terms of Order 20, Rule 14, Sub-rule (2), Civil P.C. (Act V [5] of 1908), the right of the superior pre-emptor would be immediately reduced and it will not be possible to frame a decree in the terms of Order 20, Rule 14, Sub-rule (2). It is perfectly clear that the words 'sues jointly' mean when pre-emptors join with them strangers or pre-emptors of a higher class join pre-emptors of a lower class and they ask for a joint relief as opposed to an alternative relief, that is, if they claim a joint decree and want to pre-empt the sale jointly.

5. We feel satisfied that the decision of the lower Court is right and we, therefore, dismiss these appeals with costs.


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