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Ram Lal Vs. Mahomed Faiyaz Ali Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All447
AppellantRam Lal
RespondentMahomed Faiyaz Ali Khan
Excerpt:
- - we are clearly of opinion that the view of the court below is correct......25,000. on the date of the sale, the property was burdened with a mortgage, which had merged in a decree, dated 28th july 1909. under this decree, the mortgagors were liable to pay to the 'mortgagees, a sum of rs. 9,516. this amount was left with the vendee for payment to the mortgagee decree-holders namely, ram lal and puran mal. faiyaz ali vendee did not pay this amount to the decree-holders. ram lal, one of the decree-holders, instituted a suit for pre-emption against faiyaz ali and obtained a decree on 9th march 1921. the decree was conditional upon his paying to faiyaz ali rs. 2,471-4:-0 in addition to rs. 9,516 which has already been adverted to. these sums were paid and ram lal got possession over the property on 18th may 1921.2. ram lal seeks to recover from faiyaz ali vendee.....
Judgment:

Sen, J.

1. This is an appeal by the plaintiff and arises out of a suit for recovery of Rs. 1,365 as damages from the defendant. The claim which gave rise to this appeal was somewhat peculiar. On 30th September 1919, certain pardanashin ladies sold a zamindari property to Faiyaz Ali defendant for an ostensible consideration of Rs. 25,000. On the date of the sale, the property was burdened with a mortgage, which had merged in a decree, dated 28th July 1909. Under this decree, the mortgagors were liable to pay to the 'mortgagees, a sum of Rs. 9,516. This amount was left with the vendee for payment to the mortgagee decree-holders namely, Ram Lal and Puran Mal. Faiyaz Ali vendee did not pay this amount to the decree-holders. Ram Lal, one of the decree-holders, instituted a suit for pre-emption against Faiyaz Ali and obtained a decree on 9th March 1921. The decree was conditional upon his paying to Faiyaz Ali Rs. 2,471-4:-0 in addition to Rs. 9,516 which has already been adverted to. These sums were paid and Ram Lal got possession over the property on 18th May 1921.

2. Ram Lal seeks to recover from Faiyaz Ali vendee the interest on the sum of Rs. 9,516 for the period between the date of the sale deed, i. e., 30th September 1919 and the date of Ram Lal's getting possession of the property under the preemption decree, i. e., 15th May 1921.

3. The suit was resisted inter alia upon the ground that no cause of action had accrued to the plaintiff and that the suit was not maintainable. This plea was repelled by the trial Court, which gave the plaintiff a decree for Rs. 1,185. The lower appellate Court on appeal has reversed this decision and dismissed the suit upon the ground that no cause of action had accrued to the plaintiff for the suit against the vendee for damages, under the circumstances set out above. We are clearly of opinion that the view of the Court below is correct. Faiyaz Ali Khan purchased the property subject to a certain encumbrance. The property was liable for the entire debt which was charged upon the same. The right of pre-emption is a right of substitution, and Ram Lal by reason of his pre-emption decree was entitled to take the property subject to such burden as existed on the date when he deposited the decretal amount in Court. Where under a preemption decree, a person acquires a property subject to a burden or charge, he is not entitled to ask the original vendee to either account for all his realizations between the date of his sale deed and the date of the delivery of possession to him; nor is he entitled to a decree for the amount of interest on the mortgage money for the period between the date of I the sale and the date of the delivery of possession. In Deonandan Prasad Singh v. Rumdhari Chowdhri A.I.R. 1916 P.C. 179, their Lordships of the Judicial Committee have ruled that where a pre-emption suit is brought, it is on payment of the purchase money on the specified date that the plaintiff obtains possession of the property, and until that time, the original purchaser retains possession and is entitled to the rents and profits. It follows as an inference from this decision that the pre-emptor is not entitled to call for an account from the original vendee or to charge interest on such amount as may have fallen due between the date of the sale and the date of the delivery of possession to him.

4. We are in agreement with the view taken by the Court below. We accordingly dismiss this appeal with costs.


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