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Narsingh NaraIn Vs. Ram Chandra Pandey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All509
AppellantNarsingh Narain
RespondentRam Chandra Pandey and ors.
Excerpt:
- - a right which is liable to be defeated or in other words is 'defeasible' may still be a subsisting right so long as it is not defeated. , must be a co-sharer of 12 months' standing, so that his right to pre-empt as a co-sharer might not be defeated later on......if narsingh narain is a cosharer in the mahal, he would be entitled to pre-empt the property in suit. a cosharer is defined in section 4(1) of the act as follows:'cosharer' means any person, other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors.3. it will be noticed that to be a cosharer within the meaning of this definition it is not necessary that the cosharer should be of any particular standing. if he made a purchase one day earlier than the day on which the sales he proposes to preempt took place he would be entitled to take the step as a cosharer. under section 11 of the act, his right to pre-empt accrues as soon as the sale takes place. as the sale took place in this.....
Judgment:

Mukerji, J.

1. The point that has been referred to the Full Bench is as follows:

Whether a person, who has purchased a share in a village, can maintain a suit for pre-emption against a stranger who has subsequently purchased another share, although 12 months from the date of the registration of the plaintifi'3 deed of purchase have not expired and he himself is still liable to be pre-empted by other cosharers.

2. The only facts that are necessary to be stated for the decision of this point are as follows : One Mt. Atraji executed a sale deed to one Narsingh Narain on 23rd February 1926. It was by virtue of this purchase that Narsingh Narain became a cosharer in village Jiwa and by virtue of this purchase he claimed pre-emption of a subsequent transfer to be mentioned presently. On 1st May 1926 two persons Lakhpat and Mt. Kanika, sold, among other properties, a share in village Jiwa to one Ram Chander. Two suits for preemption were brought, one against Narsingh Narain by Ganpat which was instituted on 21st February 1927 being suit No. 174 of 1927, and the other suit was filed by Narsingh Narain, seeking to preempt the second sale. This was instituted on 3rd May 1927, being Suit No. 418 of 1927. The question now is whether by virtue of his purchase dated 23rd February 1926 Narsingh Narain is entitled to maintain his suit instituted on 3rd May 1927, although his own purchase has not been of 12 months' standing when the second sale was held. The case is governed by the Pre-emption Act of 1922 (Local). Sections 11 and 12 of the Act lay down in what cases a right of pre-emption accrues and who are the persons entitled to pre-emption. In Section 12 in Class 4 are cosharers in the mahal. If Narsingh Narain is a cosharer in the mahal, he would be entitled to pre-empt the property in suit. A cosharer is defined in Section 4(1) of the Act as follows:

'Cosharer' means any person, other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors.

3. It will be noticed that to be a cosharer within the meaning of this definition it is not necessary that the cosharer should be of any particular standing. If he made a purchase one day earlier than the day on which the sales he proposes to preempt took place he would be entitled to take the step as a cosharer. Under Section 11 of the Act, his right to pre-empt accrues as soon as the sale takes place. As the sale took place in this case subsequent to the purchase, the right to pre-empt accrued to Narsingh Narain on 1st May 1926. The argument however on behalf of Ram Chander is as follows. The cases have laid down that under Section 19, a purchaser who obtains a transfer in his favour, in order to defeat the plaintiff's right of pre-emption, must obtain a transfer which is indefeasible. This was held in Kundan Gir v. Jaswant Singh : AIR1929All756 . It is therefore argued that if the defendant should possess an indefeasible title in order to be able to defeat the plaintiff's right to pre-empt, it is but fair that the plaintiff himself should possess an indefeasible title in order to pursue his remedy. This argument no doubt sounds plausible, but it is not in keeping either with the language of Section 19 or with the spirit of it. Section 19 runs as follows:

No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the date of the decree.

4. All that is necessary in the case of the plaintiff is that he should have a subsisting right at the date of the decree. A subsisting right is one which merely exists and has not been lost. A right which is liable to be defeated or in other words is 'defeasible' may still be a subsisting right so long as it is not defeated. 'The principle on which the ruling quoted above, namely, Kundan Gir v. Jaswant Singh : AIR1929All765 , was given was that we had to read Sections 19 and 20 so as to make them consistent and not inconsistent. We need not go over the grounds which were given in that case' for holding that in the case of a defendant, who takes a transfer subsequent to the institution of the suit, the must acquire a title which is indefeasible. The fact that in the case of the defendant certain rules are necessary does not establish that the same rules are necessary for the case of a plaintiff. At any rate, we have not got any duty here to reconcile any two apparently inconsistent sections of the law and therefore so to read them as to make them consistent. Here, the language of the law is entirely clear and we cannot read the word 'subsisting' as meaning 'indefeasible.'

5. When we are talking of a subsisting fight it must of course be a subsisting right which will give the plaintiff preference over the defendant. The subsisting right must be also a preferential right, but that is a point which does not arise for decision in this particular case. The view which we are inclined to take in this case is also supported by a ruling of a Bench of this Court in Ram Raj Pandey v. Har Prasad : AIR1932All249 . Reliance has been placed by the learned Counsel for the respondent on the case of Abdul Ghafur v. Ghulam Husain [1913] 35 All. 296. That was a case in which it was held that a person, to be a cosharer entitled to preempt an auction sale under the provisions of Order 21, Rule 88, Civil P.C., must be a co-sharer of 12 months' standing, so that his right to pre-empt as a co-sharer might not be defeated later on. When this decision was given, the Preemption Act of 1922 did not exist and the Civil Procedure Code does not contain any definition of the word 'co-sharer.' Applying the common law of the land, the decision was given. In the particular case before us, we have to interpret the word 'cosharer' as defined in the Pre-emption Act of 1922 and therefore we cannot hold that the case of Abdul Ghafur v. Ghulam Husain [1913] 35 All. 296 has any bearing on the case before us. In the result, we answer the question in the affirmative and direct that this answer be sent back to the Division Bench which made the reference.


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