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Shankar Lal Vs. Mt. Hashmi Begam and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1932All700
AppellantShankar Lal
RespondentMt. Hashmi Begam and anr.
Excerpt:
- .....the vendee and by getting himself substituted in his place. the result of a decree in the pre-emption suit is not a resale of the property by the vendee to the pre-emptor involving any fresh contract or conveyance. when the decree is for pre-emption which places the pre-emptor in the shoes of the vendee thereby becoming the representative of the original vendor, the court enforces the original obligation of the vendor to offer the property to the pre-emptor and substitutes the pre-emptor in place of the vendee because the transfer to the latter has taken place in violation of the pre-emptor's preferential right. it follows in our opinion that a pre-emptor, although he is substituted in place of the vendee and steps into his shoes, is not a representative of the vendee and therefore.....
Judgment:

Sulaiman, C.J.

1. This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage deed dated 15th July 1916, executed by Mohammad Abdus Salam in favour of the plaintiff, L. Shan-kar Lal. It appears that after this mortgage Abdus Salam sold the equity of redemption on 1st September 1919 to Narain Das. A suit for pre-emption was brought by Mt. Hashmi Begam on 13th July 1919. In his written statement dated 26th October 1920 Narain Das admitted the existence of this previous mortgage. The suit was decreed on 2nd December 1920 under a compromise and Mt. Hashmi Begam deposited the preemption money and got the property. Subsequently on 18th February 1924 she sold the property to Mt. Nizami Begam. the present suit was instituted on 13th July 1929 against Hashmi Begum without originally impleading Nizami Begum. She was subsequsntly impleaded on 19th October 1929 and the plaint was amended and an addition was made that time was extended as against her-by virtue of the acknowledgment contained in the aforesaid written statement of Narain Das. It is obvious that if the acknowledgment does not help the plaintiff the suit against Nizami Begum would be barred by time; on the other hand, it would be in time if the plaintiff could take advantage pt that acknowledgment.

2. Both the Courts below have1 held that the pre-emptor Hashmi Begum cannot be said to have derived title through the vendee Narain Das and that therefore the acknowledgment made by Narain Das was of no avail under Section 19, Lim. Act. Section 19 provides that where before the expiration of the period of limitation an acknowledgment of liability has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time of the acknowledgment. The question is whether a pre-emptor can be said to be a person deriving title through the vendee against whom ha sues and obtains his decree. It was pointed out by Mahmud, J., in Govind Dayal v. Inayat Ullah [1885] 7 All. 775 that the right of pre-emption is note right of 'repurchase' either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of 'substitution' entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which ha has derived his title. The claim for pre-emption is based on the principle of an infringement of the pre-emptor's right when the vendor instead of offering the property to him sells it to the vendee. The pro-emptor obviously has a paramount title as against the vendee and sues to enforce his right by displacing the vendee and by getting himself substituted in his place. The result of a decree in the pre-emption suit is not a resale of the property by the vendee to the pre-emptor involving any fresh contract or conveyance. When the decree is for pre-emption which places the pre-emptor in the shoes of the vendee thereby becoming the representative of the original vendor, the Court enforces the original obligation of the vendor to offer the property to the pre-emptor and substitutes the pre-emptor in place of the vendee because the transfer to the latter has taken place in violation of the pre-emptor's preferential right. It follows in our opinion that a pre-emptor, although he is substituted in place of the vendee and steps into his shoes, is not a representative of the vendee and therefore cannot be said to derive title through the vendee. As has been pointed out By the trial Court in this case there are various considerations which support this view. Section 4, Pre-emption Act, defines the right of-preemption as the right to be substituted in place of the transferee by reason of his right of pre-emption. The decree in a pre-emption suit under Order 20, Rule 14 directs the delivery of possession of the property to the pre-emptor whose title however accrues from the date of the payment of the pre-emption money. It does not direct the execution of any sale deed by the vendee in favour of the pre-emptor. Moreover the old view as now incorporated in Section 24, Pre-emption Act, makes all transfers made by the vendee subsequent to his purchase voidable at the option of the decree-holder.

3. If the latter were a representative of the vendee it would be difficult on principle to hold that he is not bound by the previous transfers. We therefore think that it is not possible to hold that a pre-emptor is a person deriving his title through the vendee within the meaning of Section 19, Lim. Act, so as to make an acknowledgment of the vendee made in his written statement filed after the claim for pre-emption has been brought, an acknowledgment of his predecessor-in-title binding upon the pre-emptor. It is to be noted that there was no acknowledgment of this mortgage made by the vendor Abdus Salam in his sale deed. The plaintiff relies exclusively on the acknowledgment made by the vendee Narain Das in his written statement. That in our opinion does not help him. The appeal is accordingly dismissed with costs.


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