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Surajmal and anr. Vs. Shankar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All600; 117Ind.Cas.347
AppellantSurajmal and anr.
RespondentShankar and ors.
Excerpt:
- .....be accepted. section 14 of the act does not say that a notice is merely to be sent to all the persons having a right of pre-emption but prescribes that the cosharer proposing to sell may 'give notice by registered post to all such persons' which undoubtedly implies that the notice must be given to the persons concerned. the use of the word 'issue' in section 15 is ambiguous, but reading the whole of that section, particularly the later portion of it which lays down that the right of pre-emption would not be extinguished unless such person within the period of one month of the receipt of the notice communicates his intention to purchase, no doubt is left that service on the pre-emptors is essential. their right is only extinguished when they allow one month to expire after the.....
Judgment:

1. This is a defendants' appeal arising out of a suit for pre-emption. Before the sale took place a notice was sent by registered post to the plaintiffs, but the lower appellate Court has found that this was not actually served on them. The defendants appealed and on their behalf a ground was taken that the mere posting of a notice was quite sufficient and that service of it was immaterial. This contention cannot be accepted. Section 14 of the Act does not say that a notice is merely to be sent to all the persons having a right of pre-emption but prescribes that the cosharer proposing to sell may 'give notice by registered post to all such persons' which undoubtedly implies that the notice must be given to the persons concerned. The use of the word 'issue' in Section 15 is ambiguous, but reading the whole of that section, particularly the later portion of it which lays down that the right of pre-emption would not be extinguished unless such person within the period of one month of the receipt of the notice communicates his intention to purchase, no doubt is left that service on the pre-emptors is essential. Their right is only extinguished when they allow one month to expire after the receipt of such notice. There is, therefore, no force in this ground.

2. The next ground relates to the question of consideration. The ostensible sale price was Rs. 7,500. Both the Courts below have found that the oral evidence produced by the plaintiffs that part of this amount was actually returned was not worthy of credit. But the lower appellate Court has gone on to consider the circumstances of the case and has come to the conclusion that the ostensible price is grossly excessive. It then considered the market value of the property and came to the conclusion that even Rs. 4,750 which had been found by the first Court to be the value was itself excessive, but inasmuch as there was no cross-objection it did not reduce that amount.

3. We think that when the Court came to the conclusion that the amount entered in the sale-deed was grossly excessive and it was convinced that the whole of that amount could not have been paid to the vendor and there was no other material on the record to come to a definite finding as regards the actual price of it, it was entitled to proceed to find the market value of the property under Section 17 of the Act. The finding that Rs. 4,750 is not below the market price must be taken as a finding of fact which is binding on us in second appeal. We, therefore, think that there is no force in this appeal. It is dismissed with costs including in this Court, fees on the higher scale.


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