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Bhora Singh and ors. Vs. Fora and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All347
AppellantBhora Singh and ors.
RespondentFora and ors.
Excerpt:
.....is laid down by that section that the notice should clearly describe the property to be sold, and state the name of the vendee and the price settled. 6. the facts of the case just noticed were somewhat exceptional, but if it was necessary for me to decide as a question of law as to whether a categorical refusal by a cosharer to purchase the property at a fixed price has or has not the effect of nullifying his right of pre-emption i would not have decided this appeal without sending the case before a larger bench. i therefore hold that the defendants' contention that the plaintiffs had lost their right of pre-emption was well founded and was rightly given effect to by the courts below......bhuru singh plaintiff is the grandfather of the remaining two plaintiffs named munshi singh and phul singh. the plaintiffs alleged that the real sale consideration was rs. 250 and not rs. 780 as entered in the sale deed and this allegation of the plaintiffs has been accepted by both the courts below. the plaintiffs are admittedly cosharers in the mahal in which the property sold is situated whereas the vendees are total strangers. the vendees however resisted the suit on the allegation that the sale in their favour was effected after the refusal by the plaintiffs to purchase the property, and as such, the plaintiffs were not entitled to exercise the right of preemption. this contention, of the vendees was accepted by both the courts below with the result that the plaintiff's suit was.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiffs' appeal in a pre-emption suit. By a sale deed dated 2nd January 1935 Earn Singh, defendant, sold the property in dispute in favour of Fora and others who were impleaded as defendants 1 to 3 in the suit. The sale consideration entered in the sale deed was Rs. 780. The plaintiff-appellants, who are members of a joint Hindu family, then brought the suit giving rise to the present appeal. Bhuru Singh plaintiff is the grandfather of the remaining two plaintiffs named Munshi Singh and Phul Singh. The plaintiffs alleged that the real sale consideration was Rs. 250 and not Rs. 780 as entered in the sale deed and this allegation of the plaintiffs has been accepted by both the Courts below. The plaintiffs are admittedly cosharers in the mahal in which the property sold is situated whereas the vendees are total strangers. The vendees however resisted the suit on the allegation that the sale in their favour was effected after the refusal by the plaintiffs to purchase the property, and as such, the plaintiffs were not entitled to exercise the right of preemption. This contention, of the vendees was accepted by both the Courts below with the result that the plaintiff's suit was dismissed. Phul Singh, one of the plaintiffs, was examined as a witness in the case and he in the course of his cross-examination made the following statement:

Before the sale Bam Singh asked me to purchase the property for Rs. 250. I told him that I would not purchase the property for Rs. 250 hut would pay only Rs. 200 as consideration for the sale as there was some dispute about the property. After this the sale deed in favour of the vendees was executed.

2. Phul Singh further admitted in his statement that he was the karta or the manager of the family. It was contended on behalf of the plaintiffs in the Courts below that as only Phul Singh had refused to purchase the property his refusal could not adversely affect the right of pre-emption so far as the remaining two plaintiffs were concerned, The short answer to this contention is that as Phul Singh was the manager of the joint family of the plaintiffs his refusal to purchase the property disentitled the other plaintiffs also to enforce the right of pre-emption. This was the view taken by this Court in Suraj Prasad v. Oudh Behari : AIR1931All216 . It was held in that case that the refusal of the manager of a joint Hindu family to take the property in the exercise of the right of pre-emption is binding upon all the members of the family.

3. The second contention advanced on behalf of the plaintiffs was that as no notice as prescribed by Section 14, Agra Pre-emption Act (Act 11 of 1922), was given to the plaintiffs their right of pre-emption was not extinguished. Section 14 inter alia provides that when a cosharer proposes to sell any land ho may give notice by registered post to all persons having a right of pre-emption in respect of such sale. It is laid down by that Section that the notice should clearly describe the property to be sold, and state the name of the vendee and the price settled. It is then enacted by Section 15 that the right of pre-emption of any person to whom such notice is given shall be extinguished unless such person within the period of one month of the receipt of the notice communicates by registered post his intention to purchase the property.

4. In my judgment, there is no substance in this contention of the plaintiffs. Sections 14 and 15 prescribe the procedure by which a vendor may put an end to the right of preemption possessed by a cosharer, but these Sections do not exhaustively deal with all the modes which have the effect in law of destroying the right of pre-emption. It is not obligatory on a vendor to give the notice prescribed by Section 14 and, even apart from such notice it is open to a vendee to prove facts that may have the effect in law of disentitling a plaintiff from exercising his right of pre-emption. It is open to a vendor to orally inform a cosharer having a, right of pre-emption of his intention to sell and if the cosharer, to whom such oral communication is made, refuses to purchase the property, then he will not be entitled to exercise the right of pre-emption. As in the present case there was a definite refusal by Phul Singh to purchase the property the plaintiffs', were not entitled to maintain the suit. The view that I take is in consonance with the decision of this Court in Syed Oon Mohamad v. Mt. Bint Zohra : AIR1925All645 .

5. It has however been contended by Mr. Mital that as Phul Singh was not informed that the transaction with the vendee respondent was settled his refusal to purchase the property for Rs. 250 did not disentitle the plaintiffs to maintain the suit. The argument is that unless an opportunity to purchase is given to a cosharer after a definite agreement to sell the property at a fixed price has been entered into with a stranger the right of pre-emption possessed by the cosharer is not lost. In support of this contention reliance has been placed on the decision in Kanhai Lal v. Kalka Prasad (1905) 27 All. 670. It was observed in that case that

it is not enough to offer property to a person-entitled to pre-empt before an agreement to purchase has been entered into with a third party, as was the case here.

6. The facts of the case just noticed were somewhat exceptional, but if it was necessary for me to decide as a question of law as to whether a categorical refusal by a cosharer to purchase the property at a fixed price has or has not the effect of nullifying his right of pre-emption I would not have decided this appeal without sending the case before a larger Bench. But the interpretation that I put on the statement of Phul Singh quoted above is that the property was offered to him for Rs. 250 after the transaction with the vendees was settled. That this is so appears from the admission made by Phul Singh that the property was off erred to him before the sale deed was executed in favour of the vendees and that after his refusal the sale deed in dispute was executed. That being so, there was a clear refusal by Phul Singh, the manager of the family of the plaintiffs, to purchase the property on the price offered and paid by the vendees. I therefore hold that the defendants' contention that the plaintiffs had lost their right of pre-emption was well founded and was rightly given effect to by the Courts below. Accordingly, I dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.


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