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Basira Bibi Vs. Sheikh Ata Ullah - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All453; 118Ind.Cas.170
AppellantBasira Bibi
RespondentSheikh Ata Ullah
Cases ReferredMunawar Husain v. Khadim Ali
Excerpt:
- - the rule of estoppel as formulated in section 15, pre-emption act is not exhaustive, the law on that subject appears to have been stated too broadly in some of the previously decided cases like munawar husain v......on which the suit has been dismissed is that the plaintiff refused to make the purchase before the sale-deed. the evidence led by the defendant indicated the refusals on two occasions. a month prior to the sale deed it was stated that the vendee had declined to make the purchase unless the vendor's sister, the present plaintiff, agreed that she would not pre-empt the property. the parties went to the village where the plaintiff is stated to have said that she would not pre-empt the property and that it might be sold to the vendee. the evidence does not go on to show fully that at that time the exact extent of the vendor's share or the exact price at which the transaction was settled had been disclosed to the lady. the other occasion was when the sale-deed was registered. she was brought.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for pre-emption. The only ground on which the suit has been dismissed is that the plaintiff refused to make the purchase before the sale-deed. The evidence led by the defendant indicated the refusals on two occasions. A month prior to the sale deed it was stated that the vendee had declined to make the purchase unless the vendor's sister, the present plaintiff, agreed that she would not pre-empt the property. The parties went to the village where the plaintiff is stated to have said that she would not pre-empt the property and that it might be sold to the vendee. The evidence does not go on to show fully that at that time the exact extent of the vendor's share or the exact price at which the transaction was settled had been disclosed to the lady. The other occasion was when the sale-deed was registered. She was brought in person to the registration office. She attested the sale-deed and put her thumb mark on it. It is, however, a fact that in the sale deed the price mentioned was Rs. 1,500 whereas at the trial the vendee had to admit that the true consideration was only Rs. 1,250.

2. The first Court found that there was no refusal on her part. The learned District Judge has found that there was an absolute refusal on her part which estopped her. If the refusal had rested merely on her attestation of the sale deed I would have had considerable difficulty in accepting the finding that it amounted to an estoppel. The price put down in the sale-deed was an inflated price. The refusal to purchase the property at that price cannot be deemed to be also a refusal to purchase it at a lower price. But the learned District Judge has believed the oral evidence as regards the instances which happened in the village prior to the execution of the sale-deed.

3. No doubt in some earlier cases, Subhagi v. Mohammad Ishaq [1884] 6 All. 463, Kanhi Lal v. Kalka Prasad [1905] 27 All. 670 and Munawar Husain v. Khadim Ali [1908] 5 A.L.J. 331 it was laid down that before there could be a final refusal there must be a definite contract entered into with the purchaser as regards the specific share of the property and its definite sale price. It seems to me, however, that there may be a personal estoppel against the pre-emptor which under Section 115, Evidence Act, would preclude her from pre-empting. It must be conceded that Sections 14 and 15, Agra Pre-emption Act, do not lay down in an exhaustive manner the principles of estoppel applicable to a pre-emption suit: Ranjit Singh v. Bhagwati Singh : AIR1926All467 . If a pre-emptor has previously expressed her clear intention not to pre-empt the property on any account and has waived her objection in unequivocal language to the property being sold to the vendee I would hold that she would be estopped personally from pre-empting afterwards, even though the exact share or price at which it was going to be sold was not mentioned to her. It was her duty before she spoke in an unconditional manner to find out the price of the transaction in case she was making any mental reservation in her favour. One is entitled to say that the vendee's position has been compromised and that he has been led to purchase the property on account of the conduct of the plaintiff, and her admission precludes her from suing. I would therefore accept the finding of the learned District Judge and dismiss the appeal.

Sen, J.

4. This appeal is concluded by the findings of fact arrived at by the Court below The following extracts from the judgment may be usefully quoted:

Three witnesses produced on behalf of the defendant vendee swear that a month before the execution of the sale deed the vendee accompanied by the father and the brother of the plaintiff went to mauza Kherewan where the plaintiff in the presence of her father-in-law Abdul Karim refused to make the purchase and told her brother that he might sell it to Abdul Qadir vendee. I see no reason to distrust the evidence of these witnesses on the point.... She (the plaintiff) does not say that she was not willing to make the purchase at Rs. 1,500 but she would have made the bargain if it had been stated to her that the real price paid was Rs. 1,250 only. The whole evidence on the record shows that the refusal of the plaintiff was absolute, she having no mind to purchase the property, whatever may have been the price at which it was being sold. I am therefore of opinion that the sale-deed in dispute was executed after the refusal of the plaintiff and with her consent and therefore the plaintiff was estopped from maintaining the suit.

5. Had the plaintiff refused to purchase the property for Rs. 1,500 but the property was really sold for Rs. 1,250 there was no legal bar to her maintaining a suit for pre-emption. But when she absolutely and unconditionally refused to make the purchase, no matter what the value of the property was, she was precluded from instituting the suit for pre-emption. The rule of estoppel as formulated in Section 15, Pre-emption Act is not exhaustive, The law on that subject appears to have been stated too broadly in some of the previously decided cases like Munawar Husain v. Khadim Ali [1908] 5 A.L.J. 331. The facts of that case, however, are distinguishable from those of the present case The finding of the Court below being that the plaintiff pre-emptor had refused to purchase the property absolutely and unconditionally the decree of the lower appellate Court cannot be disturbed. I would therefore dismiss the appeal with costs.

6. The appeal is dismissed with costs including in this Court-fees on the higher scale.


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