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Bhola Nath and anr. Vs. Shiv Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1939All253
AppellantBhola Nath and anr.
RespondentShiv Singh and ors.
Excerpt:
- - this is perfectly general right which is shared by all the cosharers in the mahal or village. 9. the court accordingly held that the plaintiffs' suit must fail. as the said property is to be pre-empted upon and if it is done it will pass out of my possession and i will be put to trouble and will have to incur expenses, so it is better to sell the property to anyone. in the latter case it may well be that a sale deed is executed because the purchaser from the vendee will bring a suit to enforce pre-emption unless he obtains a transfer of the property and it is to meet such a claim that the vendee gives up his right in the property for a consideration......court but decreed by the lower appellate court. the suits were brought on the following three sale deeds by nanhay, dhandoo, kundan and others in favour of bhola nath, appellant 1, and zamindari shares were sold in mahal sookha of mauza jagnair : (1) sale deed dated 22nd may 1933, for rupees 400, (2) sale-deed dated 1st june 1933 for rs. 200 and (3) sale deed dated 29th june 1933 for rs. 200. the plaintiffs brought their three suits for pre-emption on 12th may 1934, against the vendee, bhola nath, who was admittedly a person who has no zamindari share in mauza jagnair. the plaintiffs have zamindari shares in mauza jagnair but in another mahal. the defendant bhola nath pleaded in his written statement that prior to the suit on 30th april 1934, ho had made a deed of gift of the three.....
Judgment:

Bennet, J.

1. These are three connected second appeals brought by defendants (1) Bhola Nath and (2) Sri Thakur Radha Krishnaji Maharaj through Bhola Nath against the plaintiffs. The plaintiff brought three suits for pre-emption and those suits were dismissed by the trial Court but decreed by the lower Appellate Court. The suits were brought on the following three sale deeds by Nanhay, Dhandoo, Kundan and others in favour of Bhola Nath, appellant 1, and zamindari shares were sold in mahal Sookha of mauza Jagnair : (1) sale deed dated 22nd May 1933, for Rupees 400, (2) sale-deed dated 1st June 1933 for Rs. 200 and (3) sale deed dated 29th June 1933 for Rs. 200. The plaintiffs brought their three suits for pre-emption on 12th May 1934, against the vendee, Bhola Nath, who was admittedly a person who has no zamindari share in mauza Jagnair. The plaintiffs have zamindari shares in mauza Jagnair but in another mahal. The defendant Bhola Nath pleaded in his written statement that prior to the suit on 30th April 1934, ho had made a deed of gift of the three zamindari shares to appellant 2, the Thakurji, who is under his management and that the Thakurji is the owner of. a zamindari share in mahal liookha, mauza Tagnair, in which the three zamindari shares lie and therefore the suits wore not maintainable. The plaintiffs there-fore impleaded the idol as defendant 2 and Bhola Nath filed written statements on behalf of the idol that as the idol was impleaded after the expiry of one year from the dates of the sale-deeds, the suits were tune-barred. The plaintiff replied by pleading that the sale deed to the idol was fictitiously antedated and that the real date of that sale deed was the date of registration, 19th May 1934, and therefore as the sale flood was executed during the pendency of the suits, the sale deed could not affect the rights of the plaintiffs as provided by Section 52, Transfer of Property Act. In the Courts below the cases was contended on the question of fact as to whether the sale deed in favour of the idol was during the pendency of the suit or prior to the suit. On that question of fact the trial Court held that the sale deed was prior to the suits and dismissed the suits and the lower Appellate Court has held that the sale deed was executed during the pendency of the suits and has decreed the suits for pre-emption. When the second appeals were filed in this Court, it was this question of fact which was contended, and some other points were raised.

2. Mr. Dar on behalf of the appellants did not argue any of these grounds but he argued the appeals on the ground that assuming the finding of the Court below that the sale deed by Bhola Nath to the Thakurji was executed during the pendency of the suit, still the plaintiffs had no right to pre-empt. He based his case on certain rulings and his point was that the transfer had been made to a cosharer, the Thakurji, who had a superior right of pre-emption to the plaintiffs as the Thakurji had a share in the same mahal as the vendors and the plaintiffs had a share in the same village hut in another mahal. He asserted that for these reasons the plaintiffs had no longer a subsisting right of pre-emption as soon as the deed of gift was made and that as this has taken place before the decree of the trial Court, the plaintiffs therefore were not entitled to a decree for pre-emption. Learned Counsel for the appellants has relied on the following rulings. In Manpal v. Sahib Ram (1905) 27 All. 544 there was a Full Bench ruling in the year 1905 in which this question was raised under the customary law of preemption which was then in force in these provinces. But the question was decided on the pleadings in that particular suit as is shown on p. 548. On p. 547 their Lordships observed:

It is unnecessary in this view of the case to consider the difficult question which arises upon the construction of Section 52 (T.P. Act) and we abstain from offering any opinion upon that question.

3. After this ruling there was the Agra Pre-emption Act passed (Act 11 of 1922), which came into force with the sanction of the Governor-General on 2nd February 1923. This Act is stated to be 'an Act to consolidate and amend the law relating to pre-emption in the Province of Agra.' Sections 19 and 20 of this Act originally provided as follows:

19. No decree for pre-emption shall he passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree, but where a decree for pre-emption has been passed in favour of a plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff shall not be affected by any transfer or loss of his interest occurring after the date of such decree.

20. No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a per-son, having a right of pre-emption equal or superior to that of the plaintiff, or has acquired an indefeasible interest in the mahal which if existing at the date of the sale or foreclosure would have barred the suit.

4. The next ruling after the Act was Bachan Singh v. Bijai Singh : AIR1926All180 but the sale deed in that ruling was dated 15th December 1922, and being before the Act, the ruling does not refer to the Pre-emption Act. The rule laid down in that case was that where pending a suit for pre-emption the vendee sells the property to one having an equal right to pre-emption, the proper procedure is to divide the property between the plaintiff and vendee's vendee. Now with the passing of the Act it appears to us that this question as to the right of a transferee was dealt with in Section 20 of the Act. The argument was made to us that See. 20 in regard to transfers only deals with a part of the law so far as the transfers are made prior to the institution of the suit and as regards transfers made pendente lite, the Act is silent and the Court should decide according to the law before the Act contained in rulings such as the ruling in Bachan Singh v. Bijai Singh : AIR1926All180 . Learned Counsel contended that Section 19 of the Act provides that the plaintiff should have a subsisting right of pre-emption at the time of the decree of the trial Court and that a subsisting right of preemption in the plaintiff implies that there should not be a transfer of the property by the vendee to some one who has a share in the mahal which gives him an equal or superior right to the plaintiff. We have not been able to agree with this view of the law and it appears to us that the Act was intended to consolidate and amend the law relating to pre-emption and therefore the Agra Pre-emption Act purports to contain the whole of the law of pre-emption in this province and the Act does not intend that the Courts should have recourse to former rules of pre-emption which find no mention in the Act. Before the Act the law of pre-emption was in a state of con. siderable confusion in this province and the Act was enacted to define exactly what was the law of pre-emption.

5. The next ruling quoted was reported in 24 A.I.J 773 and also in Qudrat-un-nissa Bibi v. Abdul Rashid : AIR1926All661 . That was a case where the defendant vendee obtained a share in the village by gift during the pendency of a suit for preemption but before the decree in the trial Court and it was held that the plaintiff was justified in bringing his suit but he was deprived of his right of pre-emption on account of the interest acquired by the defendant subsequent to the institution of the suit. That was a different case from the prenent because the present case is a transfer by the vendee whereas the ruling deals with a case of a vendee acquiring an interest in the mahal. On p. 775 in Qudrat-un-nissa Bibi v. Abdul Rashid : AIR1926All661 , the Court held that in Section 20 the words 'prior to the institution of such suit' cannot be deemed to apply to the words 'has acquired an indefeasible interest in the mahal.' Admittedly however those words did apply to the case of a transfer by the vendee. The view of the Court therefore was that Section 20 enacted that the acquisition of an indefeasible interest in the mahal by the vendee might be made pendente lite and under Section 20, Agra Preemption Act, would bar a suit by the plaintiff pre-emptor.

6. The next ruling is Ram Saran Das v. Bhagwat Prasad : AIR1929All53 . In that case it was held that Section 20, Agra Preemption Act of 1922, is not concerned with the effect of acquisitions subsequent to the date of a suit for pre-emption but on a true interpretation of Section 19 of the Act a defendant-vendee can defeat the plaintiff's right of pre-emption, which existed at the date of the institution of the suit, by acquisition of an interest equal or superior to plaintiff's in the mahal after the institution of the suit but prior to the passing of the decree by the first Court. That again was a case of the acquisition of an interest by the vendee and not a case of transfer. As a result of that ruling the Legislature amend, ed the Agra Pre-emption Act by Act 9 of 1929 and to Section 19 the following Proviso has been added:

Provided that no voluntary transfer made in favour of the vendee after the institution of a suit for pre-emption shall defeat any right which the plaintiff had at the date of such institution,

and Section 20 has been altered to read as follows:

No suit for pre-emption shall lie where prior to the institution of such suit, the purchaser has transferred the property in dispute to a person, having a right of pre-emption equal or superior to that of the plaintiff, or has acquired an indefeasible interest in the mahal which if existing at the date of the sale or foreclosure, would have barred suit.

7. Learned Counsel for the appellants contended that because of the Proviso to Section 19 the intention of the Legislature apparently was that Section 19 should involve the consideration of a transfer by a vendee. We do not consider that that interpretation is correct. The interpretation placed by the Pull Bench ruling on Section 19 was no doubt to this effect so far as the acquisition of an interest in the mahal by the vendee is concerned which was the only point before the Court in that case. That interpretation has been negatived by the Proviso added to Section 19. It appears to us that as the Legislature desired to alter the law as expressed by the Full Bench in their interpretation of Section 19 it was a natural act for the Legislature to add a proviso to Section 19 to the effect that the interpretation of the High Court was no longer law. But that does not imply that the Legislature intended that Section 19 should be interpreted otherwise in the manner in which it had been interpreted in the Pull Bench ruling. It (appears to us rather the opposite that the : I legislature intended that Section 19 should not; be interpreted in that manner. In our view the natural interpretation of Section 19 is that it deals with the capacity of the plaintiff to bring a suit for pre-emption. The words used are that the plaintiff must have a 'subsisting right of pre-emption' and the latter part of the Section provides that his right to sue shall not be affected if he loses that interest after the date of the decree. A right of pre-emption is defined by Section 4, Sub-section 9, as meaning the right of a person on a transfer of immovable property to be substituted in place of the transferee by reason of such right. This is perfectly general right which is shared by all the cosharers in the mahal or village. Section 5 further defines the right of pre-emption and the matter of the existence and extent of the right is dealt with in the different Sections of Ch. 2. In drafting an Act, the natural procedure is to deal with different (questions in different Sections and the legislature appears to have dealt with the right of the plaintiffs in Section 19 and how far that right may be lost by transfers or loss of interest of the plaintiff. To introduce considerations applying to the defendants in such a Section would be to introduce other ideas and the changes on the side of the defendants are dealt with in Section 20. There is a natural division between these two Sections and we do not think that the Legislature intended that other questions should be dealt with in Section 19 than the capacity of the plaintiffs.

8. The next ruling which was quoted was Malik Singh v. Shiam Lal : AIR1929All440 . That ruling does not refer to Section 19 or Section 20, Agra Pre-emption Act. It deals with a case where there was a sale deed by the vendee in favour of a cosharer and the plaintiffs claimed that such a sale deed was invalid against their rights to obtain a decree in accordance with Section 52, T.V. Act. We have referred to the paper-book in this First Appeal No. 101 of 1926 and it showed that the sale deed by the vendee was executed on 7th July 1925, on the very date on which the plaint for pre-emption was filed. It may have been for these reasons that no reference was made to the provisions of Section 20, Preemption Act. On pages 538 and 539 the judgment observed:

If Umrao Singh were taking his stand only on the sale deed in his favour, he would be prevented by that doctrine from depriving the plaintiffs of their right of pre-emption. On the other hand if he is claiming the right to take the property from the original vendee by virtue of his own preferential right of pre-emption, he is not basing his claim on the sale deed but on his paramount title. A pre-emptor may either go to Court and sue for pre-emption, or may induce the vendee to re-transfer the property to him, thereby avoiding such suit. A private transfer of this kind can be an acknowledgment of such a right of pre-emption and an acceptance of his claim, and may be made to him in recognition of his right.

9. The Court accordingly held that the plaintiffs' suit must fail. Now in the sale deed printed in the paper book on p. 33 it is stated as follows:

As the said property is to be pre-empted upon and if it is done it will pass out of my possession and I will be put to trouble and will have to incur expenses, so it is better to sell the property to anyone. Thakur Umrao Singh is at present ready to purchase the property and he had a right to pre-empt the property. Hence I... have... sold...

10. It is to be noted that this ruling is to be distinguished from the present case because in the present case there is no mention in the deed of gift of any question of preemption having been raised and further a deed of gift by the vendee is not the same as a sale deed by a vendee to a person who has a right to pre-empt. In the latter case it may well be that a sale deed is executed because the purchaser from the vendee will bring a suit to enforce pre-emption unless he obtains a transfer of the property and it is to meet such a claim that the vendee gives up his right in the property for a consideration. But, in the present case, Bhola Nath is the manager of the idol and was in his private capacity the vendee. It cannot be said therefore that Bhola Nath was threatening to bring a suit for preemption against himself and his making a gift to the idol is not a sale to a claimant against him in recognition of the right to pre-empt of such a claimant.

11. In Haider Husain v. Puran Mal : AIR1935All706 there was a case where the vendee during the pendency of a suit for pre-emption acquired a share in the mahal by virtue of a deed of gift and became a cosharer. After the deed of gift, but before the passing of the trial Court's decree the Pre-emption Act was amended by Act 9 of 1929. Two learned Judges against one held that a, voluntary transfer which was taken before the Proviso to Section 19 came into force was not governed by the Proviso, and accordingly the Proviso does not prevent the defendant vendee from defeating the plaintiff's claim. This ruling has no bearing on the question before us because it was not a transfer by the vendee, but a transfer to the vendee and further it was prior to the Amending Act.

12. Ono further ruling was shown to us, Munshi Ram v. Maghar Mal (1921) 8 A.I.R. Lah. 363 by a Bench which included Sir Shadi Lal. In that case after the suit for pre-emption was filed the Tondoo executed a deed of exchange with a cosharor and it was held that the deed of exchange could not defeat the plaintiff's right of pre-emption even though the person who contested the suit on the strength of the deed of exchange had a superior right of pre-emption to the plaintiff. The grounds of the decision are as follows:

It is to be observed that the transfer in favour of the appellant was not a sale, but an exchange, and that the deed makes no reference whatsoever to any right of pre-emption. In view of the clear finding arrived at by the learned District Judge that the transfer was not made in recognition of the right of pre-emption, we must hold that the appellant was not entitled to rely upon the transfer in order to defeat the claim of the plaintiff.

13. Applying this reasoning to the present case, we find that in the present case as is admitted by learned Counsel there was no reference in the deed of gift to the right of pre-emption and further the lower Appellate Court has held as follows in the pre-sent case:

Firstly, the transfer made to respondent 2 being a gift and not a sale it is impossible to say that it was made to him by virtue of his preferential right of pre-emption. Secondly, Bholanath, being himself the manager of the respondent 2, in taking the sales for himself necessarily gave his assent as manager to the sales being made to himself in his personal capacity. Respondent 2 had therefore) lost his right of pre-emption and could (not exorcise it again when the plaintiffs had come to Court to enforce their right.

14. In view of these rulings we consider that the decrees of the Court below are (correct and we dismiss these second appeals with costs.


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