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Liaqat Khan Vs. Abdul Majid Khan - Court Judgment

LegalCrystal Citation
SubjectCivil ;Property
CourtAllahabad
Decided On
Reported inAIR1944All284
AppellantLiaqat Khan
RespondentAbdul Majid Khan
Excerpt:
.....transferred whose value cannot be or has not been separately assessed. 9. i also consider that the right to pre-emption of the plaintiffs other than liyaqat khan was extinguished by their failure to communicate their intention of purchasing and that there was not such discrepancy between the terms of the notice and the terms of the sale as would prevent its being extinguished under the proviso to section 15 of the act. the intention clearly is that a cosharer should not be introduced without the knowledge of the possible preemptors. it is clear from the terms of the deed of sale that the parties were well aware that a transaction of this kind would be invalid and they made their arrangements accordingly. 11. it seems to me important to remember that the right of pre-emption is a very..........sold the shares of abdul majid khan, yusuf khan, quddus khan and mahabat khan sons of mohammad yar khan, vendors, were entered as corresponding to rs. 16,000 out of the consideration while the share of abdul majid khan, son of mohammad sharif khan, in the same village was entered as corresponding to rs. 1500 out of the consideration. this being so, it appears to me that rs. 3000 which were not to be paid till the vendors put the vendees in possession of what before sale had been sir land were not regarded by the parties as the value of ex-proprietary rights as distinguished from the value of the property sold. this sum was regarded by the parties as part of the purchase price of the property which the vendees were going to keep temporarily in case the vendors did not carry out their.....
Judgment:

Hamilton, J.

1. This is an appeal by four plaintiffs whose suit for pre-emption was dismissed by the Civil Judge of Ghazipur. He held that the vendors, Sohrab Khan and others, had sent to the plaintiffs by registered post a notice under Section 14, Agra Pre-emption Act of 1922 stating what property was to be sold, the names of the vendees and the price settled and that the plaintiffs Liaqat Khan and Muhammad Khalil Khan took delivery of the notice but Liaqat Khan alone replied while the other two plaintiffs Raja Khan and Arif Khan refused to take delivery of the notice. As regards the reply sent by Liaqat Khan the learned Judge held that it did not indicate his intention to purchase the property so that none of the plaintiffs had communicated any such intention and, therefore, in view of Section 15, Agra Pre-emption Act, their right to pre-empt had become extinguished. In any case, even if Liaqat Khan had not lost his rights under Section 15, he sued jointly with others who had and he could not succeed either, in view of section 21.

2. Learned Counsel for the appellants had urged that Liaqat Khan's reply communicated an intention to purchase the property and that the disqualification under Section 21 arises only when one of the plaintiffs had never had any right of pre-emption under the Act, that is to say, when he was not one of the persons enumerated in Section 12 of the Act. Further, he has argued that the notice was not a proper notice under Section 14, so that the rights of none of the plaintiffs were extinguished under Section 15. Learned Counsel says that the notice is not a notice under Section 14 because a share in the property sold belonged to a minor, Mt. Askari Bibi, whose property the vendors could not sell and the sale consideration, Rs. 17,500 was composed of Rs. 14,500 for the property sold and Rs. 3000 for abandoning exproprietary rights, a transaction which was illegal under the Tenancy Act, and Rs. 14,500 should have been the figure in the notice. For the proposition that Liaqat Khan, at any rate, should have had the suit decreed in his favour, the learned Counsel relies on two decisions of this Court, Lal Behari Misra v. Equeen Mohammad Hajjam : AIR1926All722 and Suraj Prasad v. Oudh Behari : AIR1931All216 . In the first case it was held that Lal Behari a plaintiff had agreed to the sale deed in question, was present at the time of registration and accepted the amount which was left with the vendee for payment to him and was, therefore, estopped. Section 15, Agra Pre-emption Act, was not referred to. It was, however, stated in that decision that in the opinion of the learned Judges, Section 21 was not intended to alter the previous law and reference was made to Chotu v. Husain Bakhsh ('93) 1893 A.W.N. 25. The learned Judges stated that before the Preemption Act was passed where one cosharer had joined another cosharer in the suit but this cosharer was disqualified from pre-empting by reason, for instance, of not having performed the necessary demands required by the Mahomedan law, it used to be held that the first cosharer was not disqualified from maintaining the suit merely because he had joined the second cosharer in it. In the second case the learned Judges held that it was not necessary for them to consider the effect of the statutory provision of Section 15 of the Act as to the extinction of the right of pre-emption on failure to reply to a notice served under Section 14, but as to estoppel under Section 115, Evidence Act, they held that such an estoppel merely operated as a bar to the suit and did not necessarily extinguish the right. This strongly suggests that had the learned Judges found that there was an extinction of the right of preemption they would have held that none of the plaintiffs in that case were entitled to preempt. Both these cases are therefore authority for holding that the relief of plaintiff by suit is barred by something outside the Pre-emption Act, such as estoppel, but do not decide whether if that plaintiff has lost his rights by a provision of the Act a co-plaintiff can succeed in the suit.

3. Section 21 is to the effect that where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right; and where a pre-emptor of a higher class sues jointly with a pre-emptor of a lower class, he shall have no higher right than the person with whom he so sues. It is clear that the rights of a person having a right of pre-emption are affected whenever he joins a plaintiff who has a lesser right under the Act for his right is reduced to the right of the person with lesser right; and so in my judgment, if he joins with him a person who once had rights under Section 12 but had lost them under Section 15 the right of the person who had not himself lost it under Section 15 should not be greater than those of a co-plaintiff who no longer had any. Therefore if a person who has a right of pre-emption is a co-plaintiff with a person whose rights have been extinguished by the provisions of Section 15, his rights are similarly extinguished.

4. As regards the second point, namely, that the notice was not a valid notice under Section 14 because the vendors were selling without authority the share of the minor Mt. Askari Bibi, I see no force in this contention. I do not have to consider here whether a person receiving a notice that the vendors are selling some property which they undoubtedly have a right to sell and some property which they might not have, or do not have, the right to sell, must communicate by registered post his intention to purchase the whole property or only the property as to which the vendors can effect a valid transfer but at the very least they must express their intention to purchase the property which the vendors can sell and which the person with a right of pre-emption can pre-empt if his offer to purchase is not accepted. Only Liaqat Khan gave any answer so that three of the plaintiffs did not communicate an intention to purchase any part of the property.

5. Finally, there is the point of consideration. The notice under Section 14 was to the effect that the vendors intended to sell their zamindari shares together with all the rights appertaining thereto in four villages to the extent of 11 pies 18 kant and 3 jau for Rs. 17,500. The sale deed, which is Ex. A-1 executed on 30th January 1940, long after the answer of Liaqat Khan which was dated 10th May 1939, was to the effect that it had been settled between the vendors and the vendees that the vendors would sell the properties mentioned for Rupees 17,500 and put the vendees in possession of all the zamindari property, sir and khudkasht land, and that the condition of delivery of possession of sir land was actually a part of the sale deed but under Act 17 of the new law of 1939, the executants acquired exproprietary rights to the plots of sir land, after the execution of the sale deed and could not relinquish the same within six months of the execution of the sale, therefore, Rs. 3000 were left in deposit with the vendees for the present on the condition that when the executants relinquished possession of the ex-proprietary sir land the vendees would pay the said sum and a separate registered receipt would be executed. Until the executants executed a deed of relinquishment in respect of the sir land and put the vendees in possession of the plots of land they would not be entitled to the remaining amount of Rs. 3000 but when they executed such a deed the vendees would have no right to enter into possession unless they paid Rs. 3000 to the executants and the executants would have the further right to realise in case of non-payment the sum of Rs. 3000 with damages from the vendees through the Court.

6. In the list of the property sold the shares of Abdul Majid Khan, Yusuf Khan, Quddus Khan and Mahabat Khan sons of Mohammad Yar Khan, vendors, were entered as corresponding to Rs. 16,000 out of the consideration while the share of Abdul Majid Khan, son of Mohammad Sharif Khan, in the same village was entered as corresponding to Rs. 1500 out of the consideration. This being so, it appears to me that Rs. 3000 which were not to be paid till the vendors put the vendees in possession of what before sale had been sir land were not regarded by the parties as the value of ex-proprietary rights as distinguished from the value of the property sold. This sum was regarded by the parties as part of the purchase price of the property which the vendees were going to keep temporarily in case the vendors did not carry out their promise to deliver possession of what previously had been sir land. I do not think it is necessary to consider what the Courts might decide about Rs. 3000 if the vendors claimed it, though they did not hand over possession of that land, or if the vendees did not pay over that sum when the vendors had given over possession, for what I have to consider is whether the sum mentioned in the notice as the price settled for the zamindari share with all rights appertaining thereto was the sum which should have been so entered. In my opinion had a draft of the sale deed been attached to the notice it could not possibly have been urged that the notice was not a valid one, whatever the Courts might hold about Rs. 3000. It is not necessary under Section 14 to send a draft of the proposed deed of transfer and in many cases there are deails in the transaction of transfer which might influence the decision of a person having a right to pre-emption to offer to purchase the property or not; for instance, such a person might be unwilling to pay cash for the property but might be willing to pay partly cash and to execute a pro-note for the remainder and what was settled between the vendor and the vendee might have been a purchase partly by cash and partly by the execution of a pronote. On receiving a notice it is for the person who has a right to pre-empt to make inquiries as to the details of the consideration which need not be entered in the notice.

7. In the present case it was for the plaintiffs to enquire what the vendors meant by the expression 'all the rights appertaining to the zamindari share.' In the absence of details the plaintiffs could not know exactly what were all the rights transferred; but, on the other hand, had the vendors entered Rs. 14,500 instead of Rs. 17,500 as the consideration, this would have been more obscure and indeed misleading. Under Section 15, Pre-emption Act, if a person to whom a notice has been issued under Section 14 does not within one month of the receipt of it communicate by registered post his intention to purchase the property the right of pre-emption shall be extinguished except when the property is actually sold for an amount smaller than that mentioned in the notice or to a person not mentioned in the notice as vendee. In the present case there were ten vendees mentioned in the notice and although only five were the vendees under the sale deed the property was not sold to a per. son not mentioned in the notice as vendee. It cannot be said that the property was actually sold for Rs. 14,500 when the vendors intended to receive Rs. 17,500 and no less and the vendees had agreed to pay nothing less than Rs. 17,500. I do not think that it is possible to lay down a general rule as to what should be the contents of a notice so as clearly to describe the property to be sold and state the name of the vendee and the price settled for there are sale transactions when certain rights are transferred with the property which is transferred whose value cannot be or has not been separately assessed. On the facts of the present case, in my judgment, the price stated in the notice, namely, Rs. 17,500 was the price which should have been stated and it was then for the persons who received the notice to make inquiries to find out the details of the same. I find therefore that the notice was a notice under Section 14 and, at any rate, the rights of pre-emption of three plaintiffs out of four were extinguished so that even if the answer to the notice sent by Liaqat Khan plaintiff kept alive his right to pre-empt, he lost his right under Section 21 by suing jointy with the remaining plaintiffs whose rights had been extinguished under Section 15. I would, therefore, dismiss this appeal with costs.

Allsop, J.

8. I am of the same opinion as my learned brother. I consider that the notice issued to the possible pre-emptors complied sufficiently with the provisions of the Act. I understand that it has now been held that the vendors, when they executed the deed of sale, did not succeed in transferring the property of the minor, Mt. Askari, but at the stage when the notice was issued that question did not arise. At that stage information was given that there was an intention to transfer her property and the persons to whom the notice was issued were not to know that subsequently the proper steps would not be taken to render valid the transfer of the minor's property. It was for them to signify their intention of buying the property if they wished to do so. Anything that happened afterwards cannot affect the validity of the notice.

9. I also consider that the right to pre-emption of the plaintiffs other than Liyaqat Khan was extinguished by their failure to communicate their intention of purchasing and that there was not such discrepancy between the terms of the notice and the terms of the sale as would prevent its being extinguished under the proviso to Section 15 of the Act. All the vendees were mentioned in the notice. It is true that others were mentioned as prospective vendees who did not ultimately acquire any interest in the property but the proviso says only that the right to pre-emption shall not be extinguished if the property is sold to a person not mentioned in the notice. The intention clearly is that a cosharer should not be introduced without the knowledge of the possible preemptors. There is nothing in the language of the proviso to suggest that the right to pre-emption will subsist if all the prospective vendees are not the ultimate purchasers.

10. The sale price of Rs. 17,500 was that mentioned in the notice. The suggestion that the right of the zamindar in the property was sold for Rs. 14,500 is not in my judgment justified. The vendors certainly agreed to relinquish their ex-proprietary rights as soon as the law entitled them to do so and allowed the vendees to keep back Rs. 3000 as security till the agreement was implemented, but that does not mean necessarily that there was a separate sale of the ex-proprietary rights or a separate invalid agreement to relinquish them for a consideration. It is clear from the terms of the deed of sale that the parties were well aware that a transaction of this kind would be invalid and they made their arrangements accordingly. If the vendors did not insist upon their ex-proprietary rights the property was worth Rs. 17,500 and was sold for that sum as mentioned in the notice. If the vendors did insist upon their ex-proprietary rights the property might be worthless and consequently the vendees retained part of the purchase price as security. In this way the vendors could legally enforce the payment of the Rs. 3000 when they relinquished their ex-proprietary rights. If there had been a separate agreement about these rights neither party could probably have enforced it and the vendors might have found themselves in a position in which they had either to relinquish their ex-proprietary rights without consideration or to retain them at great inconvenience to themselves. They could not transfer them to any other person.

11. It seems to me important to remember that the right of pre-emption is a very weak right, not intended to operate against the interests of the vendor, and that it is a right which does not come into existence till a sale has been effected. The object of a notice under Section 14 of the Act is to enable all the parties, vendor, vendee and pre-emptor, to consider their positions. If the pre-emptor expresses his intention to purchase the vendor may decide not to sell at all and the pre-emptor cannot compel him to do so. In these circumstances the vendee may elect to resile unless he has bound himself by an absolute contract of sale. In any event the vendor should not be compelled to suffer because the pre-emptor has stepped into the shoes of the vendee. If the vendor is to benefit from a collateral contract with the vendee he may well prefer not to sell at all if a pre-emption may cause him to lose that benefit. The pre-emptor is given a period of one month in which to inquire into the value of the property and the incidents of the sale and he should inform the other parties of his intentions within that period. In this case the plaintiffs other than Liyaqat Khan did nothing. Having induced the vendors to sell by failing to intimate their intention to buy the property they should not be allowed to compel the vendors either to lose Bs. 3000 or to continue as cultivators in the village. The right to pre-emption would arise at the date of the sale and a subsequent desire on the part of the vendors to enforce their ex-proprietary rights would not affect the issue.

12. It may be said that only part of the property was sold on account of the failure to make a valid transfer of the minor's share but there is nothing in the proviso to Section 15 about the sale of part of the property and the conclusion is that a pre-emptor who does not object to a vendee if he is buying the whole of the property should not object to him if he is buying a part. The principle underlying the rule of pre-emption is that a cosharer is entitled to exclude a stranger. It is only when a sale of part of a property implies a deception about the price mentioned in the notice that the proviso would apply. In the case before us there is no element of that kind. I find that the right of the plaintiffs other than Liyaqat Khan was extinguished. In the view I take of the effect of Section 21 of the Act it is unnecessary for me to consider whether Liyaqat Khan's right was saved by the reply to the notice. Section 21 says:

Where a person having a right of pre-emption sues jointly with a person not having such right he shall lose his right....

13. In the cases mentioned by my learned brother it was held that a general estoppel by misrepresentation did not extinguish the right to pre-empt but merely barred the remedy. It followed that a person who was barred from alleging the right could not be said not to have the right within the meaning of Section 21. That argument could not apply to a person whose right was extinguished under Section 15. A person whose right is extinguished by statute cannot be said to have a right. I may refer to the analogy of the law of limitation. Generally speaking, a right is not lost by limitation though the remedy is barred, but a right to property is extinguished by limitation under Section 28, Limitation Act, when a suit for possession is barred by limitation and nobody has suggested that the right subsists after it is extinguished. I agree that the appeal should be dismissed with costs.

14. The appeal is dismissed with costs.


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