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Bhagwan Sahai Vs. Nanak Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All336
AppellantBhagwan Sahai
RespondentNanak Chand and ors.
Excerpt:
.....risaldar was collusive and that in any case he had a better right to pre-empt the property than bhagwan sahai. it is admitted, as we have said, that bhagwan sahai has just as good a right to pre-empt this property as moti ram, and we know that on the 18th october 1923, he brought a suit to enforce that equal right. it appears to us, therefore, that when moti ram brought his suit on the 7th or 8th october 1923, it could not be said that his right was a right to pre-empt the entire property, for clearly his right of pre-emption was subject to the rights of other pre-emptors with equal claims who might bring suits for pre-emption within the period of limitation. had the two rival suits for pre-emption been fought out it is quite clear that both parties would have been entitled to take..........pre-emption. on the 13th of october 1923, a rival suit for pre-emption was filed by risaldar major bhagwan sahai who is the appellant before us. after this, that is to say, on the 20th of october 1923, we find that ram lal the original purchaser sold the property to the risaldar for the sum for which he himself had purchased.2. moti ram having become aware of this transfer to the risaldar impleaded risaldar bhagwan sahai as a defendant in his suit. he also amended his plaint and pleaded that the transfer to the risaldar was collusive and that in any case he had a better right to pre-empt the property than bhagwan sahai. it is further to be noted that bhagwan sahai having obtained a conveyance from ram lal withdrew his suit on the 14th april 1924.3. it has been found by the courts below,.....
Judgment:

1. Both these appeals arise out of a suit for pre-emption which was brought by one Moti Ram now represented by Nanak Chand and others. It appears that on the 17th of October 1922 the Defendants Nos. 2 to 6 in the suit sold certain zamindari property to one Ram Lal for the sum of Rs. 4,830. On the 7th or 8th of October 1923, Moti Ram filed his suit for pre-emption. On the 13th of October 1923, a rival suit for pre-emption was filed by Risaldar Major Bhagwan Sahai who is the appellant before us. After this, that is to say, on the 20th of October 1923, we find that Ram Lal the original purchaser sold the property to the Risaldar for the sum for which he himself had purchased.

2. Moti Ram having become aware of this transfer to the Risaldar impleaded Risaldar Bhagwan Sahai as a defendant in his suit. He also amended his plaint and pleaded that the transfer to the Risaldar was collusive and that in any case he had a better right to pre-empt the property than Bhagwan Sahai. It is further to be noted that Bhagwan Sahai having obtained a conveyance from Ram Lal withdrew his suit on the 14th April 1924.

3. It has been found by the Courts below, and there is no dispute, that so far as the right to pre-empt was concerned Moti Ram and Bhagwan Sahai stood on the same footing; each had an equal right to prompt the sale in question.

4. The first Court gave Moti Ram a decree for pre-emption for half the property. Both parties appealed to the District Judge and the learned District Judge has decreed the claim of the plaintiff in its entirety differing from the Court below. The learned Judge was of opinion that the sale to Bhagwan Sahai on the 20th of October 1923, was a transfer pendente lite, and inasmuch as Bhagwan Sahai had withdrawn his suit he came to the conclusion that on the date the lower Court pronounced its decree it ought to have awarded Moti Ram the whole of the property, presumably because on that date Bhagwan Sabai was no longer in the position of a rival plaintiff for pre-emption.

5. Bhagwan Sahai has come here in second appeal. As the memorandum of appeal stands it would seem that Bhagwan Sahai is still claiming that he was entitled to retain the whole of this property and that Moti Ram's suit ought to have been dismissed in to. However, this attitude has been modified hero and Mr. Mullick who has argued the cases on behalf of the appellant is constrained to admit that in no case can his client recover more than half the property if these appeals be decided in his favour.

6. It is now definitely settled in the course of a number of decisions of this Pre-emption Bench that the doctrine of lis pendens does apply in pre-emption suits and consequently no transfer made during the pendency of a pre-emption suit can have any effect on the right of the plaintiff as it stood at the moment the suit was brought.

7. According to the respondents' argument here when Moti Ram brought his suit on the 7th or 8th October 1923, his right was a right to pre-empt the entire property, but we think this is not a correct statement of the legal position. It is admitted, as we have said, that Bhagwan Sahai has just as good a right to pre-empt this property as Moti Ram, and we know that on the 18th October 1923, he brought a suit to enforce that equal right. It appears to us, therefore, that when Moti Ram brought his suit on the 7th or 8th October 1923, it could not be said that his right was a right to pre-empt the entire property, for clearly his right of pre-emption was subject to the rights of other pre-emptors with equal claims who might bring suits for pre-emption within the period of limitation. In other words, Moti Ram's right of preemption at the date the suit was brought was a right to share the property under pre-emption with other pre-emptors of equal degree who might bring their suits within limitation.

8. It cannot be denied that the transfer to Risaldar Bhagwan Sahai was made pendente lite, and we must give full effect to this principle, but it seems to us that it cannot really be said that this transfer made on the 20th October 1923, necessarily affects the rights of Moti Ram, the plaintiff. Had the two rival suits for pre-emption been fought out it is quite clear that both parties would have been entitled to take the property in equal shares, and we do not think that these rights were affected by the transfer which was made in favour of Bhagwan Sahai on the 20th October 1923. Bhagwan Sahai had asserted his right of pre-emption by suit and he had satisfied his claim by taking over the property from Ram Lal. He had with drawn his own suit but he had been joined as a defendant by Moti Ram. We, therefore, think that the situation was that Bhagwan Sahai, by taking this transfer, could not improve the position in which he stood while he was still asserting his right of pre-emption as a rival plaintiff, and so we have come to the conclusion that, on the facts as they stand, Bhagwan Sahai could not be heard to say that he was entitled to retain the whole of this property.

9. On the other hand, we think that Moti Ram, for the reasons given above, could not assert that he had an absolute right to take the whole of the property by pre-emption. The rights of the parties were to take the property in equal shares and that is the right which ought to be enforced under these appeals. Mr. Mullick in the course of his argument has referred to a Full Bench ruling reported in Manpal v. Sahib Ram. [1905] 27 All. 544. That was a peculiar case and has been commented upon in several sub sequent decisions. We refer in this connexion in particular to the decision of the Pre-emption Bench in Kampta Prasad v. Ram Jag [1914] 36 All. 60 where the learned Judges state that the Pull Bench case just referred to was decided on a misapprehension of the facts. For the reasons we have just given we are of opinion that the proper order to make in this case is that the plaintiffs were entitled to pre-empt a one-half share of the property on payment of one-half of the consideration. We, therefore, allow these appeals, set aside the decrees of the lower appellate Court and restore the decrees of the Court of first instance in each case. Parties will bear their own costs in all Courts.


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