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Bhagwan Singh Vs. Tasadduq HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All549
AppellantBhagwan Singh
RespondentTasadduq HusaIn and ors.
Excerpt:
- - if he is to be bound by his admission it would not be a case of sale at all and the suit would fail automatically......it is obvious that the first mistake which the learned judge has made is in thinking that the supposed vendor is estopped from saying that the property has been sold. the admission which he made in the lower court was hot that the property had been sold, but it was that from the very beginning it had belonged to the supposed vendee. if he is to be bound by his admission it would not be a case of sale at all and the suit would fail automatically. it is also obvious that there can be no estoppel contrary to a statutory enactment.2. in order to claim pre-emption the plaintiff must show that a sale has taken place as defined in section 4, sub-clause (10), i.e., within the meaning of section 54, t.p. act. under this latter section the sale of a tangible property of the value of rs. 100.....
Judgment:

1. This is a defendant's appeal arising out of a suit for pre-emption. The property said to have been transferred is worth Rs. 2,000 but there is no registered sale-deed in existence. What happened was that in the mutation Court the vendor made an admission that the property in question had been purchased at auction years ago in the name of his father, who was a benamidar for the defendant, and prayed that the names may be mutated accordingly. The revenue Court has acted upon the admission so made. The plaintiffs treating this as a sale instituted a suit for pre-emption. Both the Courts below have decreed the claim. The finding is that the allegation that the previous auction sale was a 'benami' transaction really for the benefit of the transferee, is untrue and that this story was devised as a cloak for concealing the present transaction. The lower appellate Court has come to the conclusion that on account of his admission the vendor is now estopped from saying that no valid transfer has taken place and that accordingly the plaintiff is entitled to treat it as a valid sale and to sue for pre-emption. It is obvious that the first mistake which the learned Judge has made is in thinking that the supposed vendor is estopped from saying that the property has been sold. The admission which he made in the lower Court was hot that the property had been sold, but it was that from the very beginning it had belonged to the supposed vendee. If he is to be bound by his admission it would not be a case of sale at all and the suit would fail automatically. It is also obvious that there can be no estoppel contrary to a statutory enactment.

2. In order to claim pre-emption the plaintiff must show that a sale has taken place as defined in Section 4, Sub-clause (10), i.e., within the meaning of Section 54, T.P. Act. Under this latter section the sale of a tangible property of the value of Rs. 100 and upwards can be made only by a registered instrument. It follows therefore that no valid sale has taken place merely because the name of the supposed vendee has been mutated in place of the name of the supposed vendor. In the eye of the law no legal sale has been effected and therefore no right of pre-emption has accrued.

3. Section 25 of the Act, which lays down the rule of limitation when a sale is effected without a registered sale-deed, obviously applies to cases where the sale has been validly effected. This can be done when the value of the property is less than Rs. 100. That section does not by any means contemplate that a right of pre-emption would accrue even if the parties intended to sell the property but no registered sale-deed as required by law has been executed. We accordingly allow this appeal and setting aside the decrees of the Court below dismiss the suit. There is no doubt, however that the defendants have been adopting dubious proceedings in order to embarrass the pre-emptor. They are not entitled to any costs in any Court. We therefore direct that the parties should pay their own costs throughout.


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