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Sheo Dayal Pande Vs. Musammat Adhari Dubain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.409
AppellantSheo Dayal Pande
RespondentMusammat Adhari Dubain
Excerpt:
pre-emption - resale of portion of property to person entitled to pre-empt--suit to pre-empt the second sale, not maintainable. - - it was useless to get a sale-deed from lalta prasad because he had already transferred to dhiraji and we altogether fail to see why a transaction would be effectual if carried out by a friendly suit and ineffectual if carried out by the simple method of a sale-deed......was made on the 5th of june 1909. this sale was in favour of one musammat dhiraji. admittedly, sheo dayal pandey, the defendant-appellant in the present appeal, was entitled to pre-empt the property sold to musammat dhiraji. on the 4th of june 1910, whilst the pre-emptor's right was still unbarred by limitation, the vendee re-transferred a portion of the property to the present defendant. the present suit has been instituted by musammat adhari dubain claiming that she as a near co-sharer of musammat dhiraji is entitled to purchase by way of pre-emption the property which was transferred to sheo dayal pandey. the lower appellate court has found that the reason how the property came to be re-transferred to sheo dayal pandey was that he had compromised with the original vendee, musammat.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The facts, as ascertained by the lower Appellate Court, are fairly simple. A sale of certain zemindari property was made on the 5th of June 1909. This sale was in favour of one Musammat Dhiraji. Admittedly, Sheo Dayal Pandey, the defendant-appellant in the present appeal, was entitled to pre-empt the property sold to Musammat Dhiraji. On the 4th of June 1910, whilst the pre-emptor's right was still unbarred by limitation, the vendee re-transferred a portion of the property to the present defendant. The present suit has been instituted by Musammat Adhari Dubain claiming that she as a near co-sharer of Musammat Dhiraji is entitled to purchase by way of pre-emption the property which was transferred to Sheo Dayal Pandey. The lower Appellate Court has found that the reason how the property came to be re-transferred to Sheo Dayal Pandey was that he had compromised with the original vendee, Musammat Dhiraji, whom he was about to sue to enforce his right of pre-emption as against her. The result of these findings is really this, that the original vendee admitted the right of Sheo Dayal Pandey to pre-empt the property but he only insisted on an enforcement of the right as against a portion of the property and that these arrangements between the parties were, carried out by means of a sale-deed. The question in the appeal is whether or not this transaction gives occasion to the plaintiff to exercise a right of pre-emption, although she had no right whatever to pre-empt the original sale. In our opinion, the fact that Sheo Dayal Pandey only insisted upon enforcing his right against part of the property is quite immaterial under the circumstances of the present case. The very same question would have arisen if after the sale to Musammat Dhiraji, Sheo Dayal Pandey had come to her and informed her of his pre-emptive rights, and that she, admitting his rights, had transferred the whole property to him on the terms of his not putting her to the expense of a pre-emptive suit. In our opinion, it would be quite impassible to hold that a transaction of the nature just mentioned would give rise to a claim for pre-emption in any person who could not have brought a pre-emption suit on foot of the original sale. It is not in reality a sale at all. Technically, the transaction is carried out by means of what is called a sale-deed but the real nature of the transaction is the following and giving effect to an admitted custom of pre-emption. It is in truth the only method in which parties could give effect to the custom unless they had recourse to the cumbrous, expensive and unnecessary procedure of filing a suit and then compromising it. The learned Judge in this Court says: 'If Sheo Dayal wanted to make his position indisputable, he should either have obtained a sale-deed from Lalta Prasad, or he should have taken his case into Court and there effected a campromise which would have brought him within the case of Hanuman Rai'. In our opinion, with all due respect, we think that this was rather a narrow view to take of the case. It was useless to get a sale-deed from Lalta Prasad because he had already transferred to Dhiraji and we altogether fail to see why a transaction would be effectual if carried out by a friendly suit and ineffectual if carried out by the simple method of a sale-deed. In our opinion, the decision of the lower Appellate Court was correct and ought to be restored. We accordingly allow the appeal, set aside the decree of this Court and restore the decree of the lower Appellate Court with costs of both hearings in this Court.


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