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Kundan Gir Vs. Jaswant Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All765; 122Ind.Cas.759
AppellantKundan Gir
RespondentJaswant Singh
Cases ReferredNaurang Rai v. Ram Sumar Rai
Excerpt:
.....of the pre-emptor's suit, if that title be acquired by the vendee after the institution of the pre-emption suit, but it would be of no avail to the vendee if the said title is acquired before the institution of the pre-emption suit. the title which the vendee has to acquire in order to defeat the plaintiff's title must be, for obvious reasons, a good title. if the title is likely to be defeated by any subsequent suit, that might be brought by anybody, it would be an act of injustice that the suit of the pre-emptor should fail, on the ground of such a frail title. we need not decide whether such a gift is altogether void or it is good till it is challenged by the sons and grandsons. whether it is void or it is voidable, it is clear that the title of the vendee is not safe and secure till..........of the pre-emptor's suit, if that title be acquired by the vendee after the institution of the pre-emption suit, but it would be of no avail to the vendee if the said title is acquired before the institution of the pre-emption suit. the language of section 19 is as follows:no decree for pre-emption shall be passed in favour of any person, unless he has a substantial right of pre-emption at the date of the decree....4. a pre-emptor has a substantial right of pre-emption at the time of the decree so long as the vendee does not acquire a right which is either equal or superior to that of the title of the pre-emptor. the title which the vendee has to acquire in order to defeat the plaintiff's title must be, for obvious reasons, a good title. if the title is likely to be defeated by any.....
Judgment:

Mukerji, J.

1. The facts of this case are briefly these. One Gulab Rai sold the property in suit to the appellant Kundan Gir on 24th August 1925 for the sum of Rs. 400. The respondent Chaudhri Jaswant Singh brought a suit for pre-emption. After the suit was filed Gulab Rai purported to make a gift of one kachwansi share of property in the same village in which the pre-empted property was situated, in favour of Kundan Gir. Having obtained this gift, Kundan Gir's contention is that he is in a position to defeat the claim of Jaswant Singh because Jaswant Singh has no better title than himself in the matter of purchase. The suit having succeeded in both the Courts below, this second appeal has been filed by the purchaser. In this Court, it is contended that in view of the Full Bench case of Ram Saran Das v. Bhagwati Prasad : AIR1929All53 Section 19 is the section of the Pre-emption Act which applies to this case and the plaintiff cannot succeed. On the other hand, the case of Deonarain Singh v. Ajodhya Prasad : AIR1927All575 is relied upon and it is contended that in order that the vendee may defeat the pre-emptor's claim the former should possess an 'indefeasible' title to the property acquired by him, subsequently to the purchase of the property, sought to be pre-empted.

2. We have to decide whether we should follow the case in Deonarayan Singh v. Ajodhya Prasad : AIR1927All575 or whether we should dissent from it, for if the case in Deo Narain Singh v. Ajodhya Prasad : AIR1927All575 applies, the decrees of the Courts below are correct. There can be no doubt that the Full Bench case quoted above, held that Section 19 had substantially reproduced the law, as it stood before the Agra Preemption Act was enacted; but it is also certainly the case that the Full Bench had not to decide the exact point that is before us. In order to find out what was the meaning of Section 19, the learned Judges looked into the state of the previous law and considered whether that law had been departed from or not. In arriving at the conclusion already mentioned, the learned Judges had no occasion to consider what should be the character of the subsequent acquisition of property, by the vendee, so as to enable him to defeat the pre-emptors' claim. That being the case, the Full Bench case of Ram Saran v. Bhagwati Prasad : AIR1929All53 has no bearing on the case before us.

3. The Full Bench held that Section 20 did not apply where the vendee acquired property after the institution of the suit, and that to such a case Section 19 would apply. They decided nothing more. Mr. Malik has contended that Section 19 does not contain the word 'indefeasible' which has been used in Section 20 and, therefore, it would not be right to bring in that word in the interpretation of Section 19. There is some force in this contention, but if we accept that contention, we shall be interpreting Sections 19 and 20 in a way which will make them entirely inconsistent, in principle. If we accept Mr. Malik's contention, we shall be holding that, while title, which is, itself, liable to be defeated, would be good enough to entail the dismissal of the pre-emptor's suit, if that title be acquired by the vendee after the institution of the pre-emption suit, but it would be of no avail to the vendee if the said title is acquired before the institution of the pre-emption suit. The language of Section 19 is as follows:

No decree for pre-emption shall be passed in favour of any person, unless he has a substantial right of pre-emption at the date of the decree....

4. A pre-emptor has a substantial right of pre-emption at the time of the decree so long as the vendee does not acquire a right which is either equal or superior to that of the title of the pre-emptor. The title which the vendee has to acquire in order to defeat the plaintiff's title must be, for obvious reasons, a good title. If the title is likely to be defeated by any subsequent suit, that might be brought by anybody, it would be an act of injustice that the suit of the pre-emptor should fail, on the ground of such a frail title.

5. It is a fact in this case that the gift in the vendee's favour is by a Hindu father with sons and grandsons living as members of a joint family with him. We need not decide whether such a gift is altogether void or it is good till it is challenged by the sons and grandsons. Whether it is void or it is voidable, it is clear that the title of the vendee is not safe and secure till 12 years have passed and the vendee has acquired a title unimpeachable by the son or grandson of the donor. It would not, therefore, be right that the plaintiffs' suit should fail, because of such a title. After the dismissal of the pre-emption suit, the vendor may set up his own son to challenge the gift and the son may challenge it successfully. I may point out that the view taken in the case of Deo Narain Singh v. Ajodhya Prasad : AIR1927All575 has been affirmed in the unreported case of Govind Singh v. Manga : AIR1929All703 . It will thus be seen that at least three learned Judges of this Court are committed to the view which is against the contention of Mr. Malik. I would be prepared to uphold this view on the principle of stare decisions alone where a question of substantial law is involved, even if I were not prepared to accept the view myself. But I find myself fully in agreement with this view. For reasons given above, I would dismiss the appeal with costs.

Sulaiman, J.

6. I agree. I have no doubt in my mind that Sections 19 and 20 have to interpreted so as to be consistent with each other and that a vendee cannot defeat the pre-emptor's claim unless he acquires an indefeasible title. I do not wish to add anything to what was said by the Bench of which I was a member in the cases of Deonarain : AIR1927All575 and Govind Singh : AIR1929All703 referred to by my learned brother except that the facts of Naurang Rai v. Ram Sumar Rai : AIR1926All680 were not so strong as they were supposed to be in Deonarain's case : AIR1927All575 . This has been explained in Gobind Singh's case : AIR1929All703 . I still adhere to the views expressed in those cases.


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