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Sukhram Dubey Vs. Lal Partap Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily ;Property
CourtAllahabad
Decided On
Reported inAIR1945All343
AppellantSukhram Dubey
RespondentLal Partap Singh and ors.
Excerpt:
- - 1. this is an appeal by an unsuccessful plaintiff in a pre-emption suit whose claim for pre-emption has been dismissed by both the courts below on the ground of nonjoinder of necessary parties. 2. the vendees contested the suit inter alia on the ground that the suit was bad for nonjoinder of necessary parties. ' the plaintiff bad, therefore, a right of pre-emption as against all the male members of the joint hindu family of which the two vendees were members. we, therefore, hold that the suit was not bad for non-joinder of necessary parties......a suit for pre-emption with respect to two out of the three items of the property sold by the sale deed of 1936. he impleaded the two vendees and the vendor as defendants to the suit. the suit was based on the allegation that the vendees were total strangers to the mahal in which the properties in dispute were situated and the plaintiff had a right of pre-emption against them. it was further alleged in the plaint that the ostensible consideration of rs. 2500, entered in the sale deed, was not the real consideration and that the real consideration was rs. 500 only.2. the vendees contested the suit inter alia on the ground that the suit was bad for nonjoinder of necessary parties. this contention of the vendees prevailed in both the courts below, with the result that the plaintiff's.....
Judgment:

Sinha, J.

1. This is an appeal by an unsuccessful plaintiff in a pre-emption suit whose claim for pre-emption has been dismissed by both the Courts below on the ground of nonjoinder of necessary parties. The facts essential for the decision of this appeal are no longer in controversy and are as follows: On 1st July 1936, one Abriilak Singh sold three items of property to Lal Pratap Singh and Rudra Pratap Singh, minors. The two vendees, just named, are sons of Suraj Pal Singh. Sukhram Dube, the appellant in the present appeal, brought a suit for pre-emption with respect to two out of the three items of the property sold by the sale deed of 1936. He impleaded the two vendees and the vendor as defendants to the suit. The suit was based on the allegation that the vendees were total strangers to the Mahal in which the properties in dispute were situated and the plaintiff had a right of pre-emption against them. It was further alleged in the plaint that the ostensible consideration of Rs. 2500, entered in the sale deed, was not the real consideration and that the real consideration was RS. 500 only.

2. The vendees contested the suit inter alia on the ground that the suit was bad for nonjoinder of necessary parties. This contention of the vendees prevailed in both the Courts below, with the result that the plaintiff's suit was dismissed by those Courts. The plea of non-joinder raised by the vendees was based on the allegation that the vendees were not the real purchasers and were mere benamidars for the male members of the joint Hindu family of which they were members. It is common ground that the joint family, of which the vendees are members, consists of their father, Suraj Pal Singh, as also certain other male members. It has been found by both the Courts below that the purchase, though made in the names of the two minor vendees, was, in fact, a purchase made for the entire joint family. In other words, the finding is that all the male members of the joint Hindu family are the real purchasers under the sale deed, even though in that deed only the names of the two minors are entered as vendees. The Courts below held that as, apart from the two vendees named in the sale deed, there were other persons who were beneficially interested in the purchase that was the subject of pre-emption, and as those persons had not been impleaded as defendants to the suit, a decree for pre-emption could not be passed in favour of the plaintiff. In support of this conclusion reliance was placed by the lower appellate Court on the decisions of this Court in Harsaran v. Dilraji ('10) 8 I.C. 527 (All.) and Ram Sakhi Kuar v. Lachmi Narain Lal ('24) 11 A.I.R. 1924 All. 802. We are unable to agree with the decision of the Courts below on this point.

3. The sale deed, as already stated, is in favour of Lal Pratap Singh and Rudra Pratap Singh and these two persons were impleaded as defendants to the suit. An intending pre. emptor is entitled to assume that the person named in the sale deed is the real vendee and not a mere benamidar for others, and no duty is cast by law on him to institute an enquiry as to whether the vendee named in the sale deed is a mere benamidar or is the real purchaser. There is abundant authority for the proposition that a decree obtained against a benamidar is binding on the real purchaser. These decisions are based on the principle that if a person indulges in a benami transaction, the benamidar must be deemed to represent that person in all proceedings in a Court of law. It follows that a pre-emptor is entitled to assume that the vendee named in the sale deed is the real vendee and to institute a suit for pre-emption against him. The decisions relied upon by the Courts below lay down that, if an ostensible vendee is merely a benamidar, a suit for pre-emption cannot succeed if it is found that the plaintiff in such a suit had not a right of pre-emption against the real vendee. These decisions, however, do not support the proposition that the omission of a plaintiff in a pre-emption suit to implead as defendant to that suit the real purchaser will entail the dismissal of the suit on the ground of non-joinder of necessary parties. As already stated, the benamidar represents the real purchaser for whom he is the benamidar. In other words, the real purchaser must be deemed to be party to the suit through the benamidar, who is impleaded as a defendant to the suit.

4. In the present case not one individual member of the joint family was a cosharer in the Mahal in which the properties in dispute were situated and each and every one of those members was a stranger to the Mahal.' The plaintiff bad, therefore, a right of pre-emption as against all the male members of the joint Hindu family of which the two vendees were members. Even if it be supposed that the two minors were benamidars on behalf of the male members of the family, the plaintiff was entitled to a decree for pre-emption for the simple reason that he had a preferential right ' of purchase as against all the members of that family. We, therefore, hold that the suit was not bad for non-joinder of necessary parties. A number of issues were raised in the trial Court, but the contest in that Court centred round the issue as to non-joinder of necessary parties and the issue regarding the amount of sale consideration. On the question of sale consideration, the trial Court recorded a finding to the effect that Rs. 1633 was the real sale consideration. The lower appellate Court, however, did not record any finding on that issue. In the view that we take the plaintiff is entitled to a decree subject to the payment of such amount as is proved to be the real sale consideration. For the reasons given above, we allow this appeal, set aside the decree of the lower appellate Court and send the case back to that Court with the direction to restore the appeal to its original number and to dispose of the same according to law. Costs here and hitherto will be the costs in the cause and will abide the event.


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