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Jamna Bhagat and ors. Vs. Oudh Behari Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All733
AppellantJamna Bhagat and ors.
RespondentOudh Behari Mal and ors.
Excerpt:
- .....of these other members bringing a suit thereafter for the cancellation of the transfer of the family properties made by the vendees in favour of the exchangers from whom properties have been taken. there is however no suggestion that these exchangers who have transferred their own properties to the vendees are members of a joint hindu family or that they were not possessed of a full disposing power or had not full authority to make the transfer. it is therefore clear that so far as the properties acquired by the vendees on the strength of which they are now claiming the status of equal cosharers are concerned there is no defect in the transfer. there is only a remote possibility of a suit being brought for the setting aside of the alienation made of the family property. it is not.....
Judgment:

Sulaiman, C.J.

1. This is a plaintiff's appeal arising out of a suit for pre-emption. During the pendency of the appeal the defendants-vendees, who were seven in number, acquired properties by means of several exchanges and pleaded that they had become co-sharers on the same footing as the plaintiffs. The first Court held that the properties acquired under these exchanges did not confer sufficient right on the defendants to enable them to resist the claim. It accordingly decreed the suit and passed a joint decree for pre-emption against all the defendants on payment of one sum.

2. The defendants appealed to the District Judge and during the pendency of the appeal one of the appellants died and his heirs were not brought on the record within the time allowed by law. The learned Judge overruled the objection that the whole appeal had abated and then came to the conclusion that the properties acquired under these exchanges conferred an indefeasible interest on the vendees and they were entitled to resist the claim for pre-emption. He accordingly allowed the appeal and dismissed the whole suit. Two points are urged before us in appeal. The first is that on account of the death of one of the defendants-vendees the whole appeal had abated. It is not disputed that the sale-deed purported to transfer the entire property jointly in favour of all the vendees for one consolidated amount and that there was no specification of different interests of the various vendees in the sale-deed. The trial Court also treated the purchase as a joint one and passed one joint decree for pre-emption against all the vendees. In these circumstances the mere fact that one of the vendees had dropped out would not prevent the other vendees from prosecuting their appeal because they were interested in the entire property transferred and were entitled to press their appeal as against the plaintiff on a ground common to all the vendees. If the decree appealed from proceeds on 'any ground common to all the defendants it is open to some of the defendants only to appeal from the whole decree and in such case the appellate Court can reverse or vary the decree in favour of all the defendants even though some of them have not appealed (see Order 41, Rule 4). We are therefore of opinion that there was no fatal defect which could have resulted in a complete abatement of the appeal in the Court below.

3. The second point urged is that no indefeasible interest has been acquired by the vendees by virtue of these exchanges. This argument is based on the fact that throe of the vendees are members of a joint Hindu family and have some minor members in the family and there is a possibility of these other members bringing a suit thereafter for the cancellation of the transfer of the family properties made by the vendees in favour of the exchangers from whom properties have been taken. There is however no suggestion that these exchangers who have transferred their own properties to the vendees are members of a joint Hindu family or that they were not possessed of a full disposing power or had not full authority to make the transfer. It is therefore clear that so far as the properties acquired by the vendees on the strength of which they are now claiming the status of equal cosharers are concerned there is no defect in the transfer. There is only a remote possibility of a suit being brought for the setting aside of the alienation made of the family property. It is not possible to speculate what the result of such a suit would be in case it is brought. It may be, as the lower appellate Court has pointed out, that the Court may uphold the transaction on the ground of family necessity and benefit of the family, or it may again be that the Court may not order the return of the property and may direct payment of compensation, or again by that time the properties acquired by the vendees may not remain in their possession and therefore may not be capable of being returned. We think that these speculations as to future contingencies cannot be taken into account.

4. The broad fact is that the properties acquired by the vendees have been acquired from some persons who had full power to transfer the same. We therefore think that the vendees have acquired an indefeasible interest sufficient to enable them to resist a claim for pre-emption. The appeal is accordingly dismissed with costs.


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