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Ram Bharose Tiwari Vs. Pandit Chandra Shekhar Dat Pandey - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All135; 73Ind.Cas.295
AppellantRam Bharose Tiwari
RespondentPandit Chandra Shekhar Dat Pandey
Excerpt:
contract - breach of promise--cause of action. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]......the plaintiff, however, who is a co-sharer in the same village, came into court alleging that the deed of gift was a mere cover for a contract of sale, which had really been carried out by the payment of consideration amounting to rs. 200 on the part of the first defendant to the defendants, second party. in reply, this allegation was denied and both sets of defendants contended that the transaction was a transfer by way of gift, as it purports to be in the document by which it was effected. they also denied that the plaintiff had any right of pre-emption. the first court found on the evidence that there had really been a sale for a sum of rs. 200 and held that the plaintiff was entitled to pre-empt. both points were arised in appeal; but the lower appellate court contented itself with.....
Judgment:

1. This was a suit for preemption on the basis of a deed, bearing date the 12th April 1919, by which the defendants, second party, conveyed a share in village Ambehari to the first defendant, who is a relation of theirs by marriage. The deed, on the face of it, is a shankalap, or gift in favour of a Brahman, made from motives of gratitude and piety. The plaintiff, however, who is a co-sharer in the same village, came into Court alleging that the deed of gift was a mere cover for a contract of sale, which had really been carried out by the payment of consideration amounting to Rs. 200 on the part of the first defendant to the defendants, second party. In reply, this allegation was denied and both sets of defendants contended that the transaction was a transfer by way of gift, as it purports to be in the document by which it was effected. They also denied that the plaintiff had any right of pre-emption. The First Court found on the evidence that there had really been a Sale for a sum of Rs. 200 and held that the plaintiff was entitled to pre-empt. Both points were arised in appeal; but the lower Appellate Court contented itself with recording a finding that it was not proved that the plaintiff lad a right of pre-emption under any custom are vailing in the village. The second appeal before us is by the plaintiff and his main jontention, the only one which has been pressed upon us in argument, is that he has a right of pre-emption under the terms of the wajib-ul-arz of 1885, independently altogether of the question whether this is a record of contract or of custom. The suit as brought purported to be based on the conditions of the wajib-ul-arz and the custom of the village. We think it was open to the plaintiff to rely on the wajib-ul-arz, and: we find that this argument was pressed in the lower Appellate Court. The learned District Judge remarks that it was admitted before him that the deed of transfer in suit was executed during the pendency of the Settlement at which the wajib-ul-arz was prepared, on the strength of which the plaintiff claims a right to pre-empt. He thinks, however, that the fact that the suit was instituted after the period of the Settlement had expired would prevent the plaintiff from claiming any right based upon the contract, if it be a contract recorded in this document. Obviously, if there was a contract binding on the plaintiff and on the vendor defendants by the terms of which the latter were not to sell any share in the village to a stranger without offering the plaintiff an opportunity of purchasing at the same price, and they did in fact sell a share in the village to a stranger in contravention of the terms of that contract, the circumstance that the period for which the contract was to run, came to an end before the plaintiff could institute a suit to enforce his light, would not deprive the plaintiff of his right to maintain a suit upon a cause of action which had already arisen. We should not have been prepared to affirm the decision of the lower Appellate Court on the grounds on which it proceeds. On a perusal of the judgments of the Comes below, however, we were greatly impressed with the contention in favour of the defendant that the transfer in question was a gift pure and simple. As the lower Appellate Court has not seen fit to examine the evidence on this point, and as we think it expedient that a suit of this nature should be concluded as soon as possible, we have ourselves looked into the very scanty evidence on the point. We think it sufficient to say that we are wholly dissatisfied with the manner in which the learned Munsif criticised and appraised that evidence. The deed upon which the suit is based is, on the face of it, a deed of gift pure and simple and the motive for making such a gift was not lacking. The learned Munsif thinks it practically impossible that the defendants, second party, should have made such a gift, because their witnesses said that the property gifted was worth a thousand rupees or more. He has, however, practically accepted the evidence of the witnesses for the plaintiff, who say that the property was only worth Rs. 200. The plaintiff cannot have it both ways. He is not entitled to contend that the property invoked in this transfer is so valuable as to make it grossly improbable that the defendants, second party, should have made a gift of it, and, at the same time, to claim that it is worth only Rs. 200 and was in fact transferred; for its full market-value. In our opinion the transaction should have been upheld, upon the finding that the transfer in question was a gift pure and simple not subject to any right of pre-emption. For these reasons we dismiss this appeal.


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