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Matu Ram Vs. Imtiaz Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 358 of 1948
Judge
Reported inAIR1952P& H195
ActsHindu Law; Punjab Pre-emption Act, 1913 - Sections 10
AppellantMatu Ram
Respondentimtiaz Ali and ors.
Appellant Advocate D.N. Aggarwala, Adv.
Respondent Advocate A.N. Grover, Adv.
DispositionAppeal dismissed
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........decision of that court. in this latter case it was held that interest of the members of a joint hindufamily is joint of the members and to allow member of the family to pre-empt would be tantamount to allowing a man to be both a vendor and a pre-emptor one after the other, and the same is the reason which prevailed in the lahore high court.5. i respectfully agree with the view taken in the lahore high court. if property is joint family property of a joint hindu family, every coparcener is a joint owner of the same and when a karta or a manager sells the property he sells not only his own share but by the provisions of the hindu law he has the power of selling and does sell the interest of every member of the family. it may be that other members have the right to have the sale set.....
Judgment:

Kapur, J.

1. This is an appeal against a judgment and decree of District Judge Maharaj Kishore dated the 27th November 1947 holding that the plaintiff being an Aggarwal Mahajan doing business of money-lending was a member of the joint Hindu family with his father and therefore could not pre-empt the sale by his father which was for Rs. 2,000/- by means of a sale-deed dated the 5th January 1944, the property sold being 5 bighas 1 biswa of land. The suit for pre-emption was brought under Section 15 of the Punjab Pre-emption Act on the ground that the plaintiff is a son of the vendor and this suit has been dismissed by the District Judge on the ground that the plaintiff is a member of a joint Hindu family with his father,

2. The plaintiif's appeal in this Court is based on the ground that in the first place he & his father were governed by custom and therefore there was no joint Hindu family, but in my opinion the learned Judge has rightly held in this case that in spite of the fact that the tribe was consulted at the time of the preparation of the Riwaj-i-am, the family being a trading family doing money-lending business and belonging to the Aggarwal caste and therefore they are governed by Hindu Law, & nothing has been shown which would go to prove that the learned Judge has in any manner erred in coming to this conclusion.

3. It is then submitted that even though the plaintiff is a member of a joint Hindu family, he has a right of pre-emption, and reliance is placed on a judgment of the Lucknow Chief Court in 'HIMANCHAL SINGH v. AJODHIYA SINGH', 4 Luck 370. In that case it was held that even a member of a joint Hindu family, where property is sold by the Manager, can bring a suit for pre-emption on the ground that he had the status of a co-sharer on the date of the sale within the provisions of the Oudh Laws Act (Act XVIII (18) of 1876). It was also held that a Hindu son may be debarred from challenging the sale on the grounds open to him under the Hindu Law, but he cannot be debarred from exercising his right of pre-emption which exists in his favour outside the transaction of sale and only arises subsequent to and after a valid sale has been carried through. This view of the law was not accepted in the Lahore High Court.

4. In 'SHUKLA RAM v. KOTU RAM', 67 I C 76 (Lah) and in 'KHUDA BAKSH v. LA-HORI MAL', AIR (22) 1935 Lah 560, it was held that a son cannot pre-empt a sale of joint Hindu family property by his father. The same view was taken in 'PRATAB NARAIN SINGH v. SHIAM LAL', 42 All 264, a Bench decision of that Court. In this latter case it was held that interest of the members of a joint Hindufamily is joint of the members and to allow member of the family to pre-empt would be tantamount to allowing a man to be both a vendor and a pre-emptor one after the other, and the same is the reason which prevailed in the Lahore High Court.

5. I respectfully agree with the view taken in the Lahore High Court. If property is joint family property of a joint Hindu family, every coparcener is a joint owner of the same and when a Karta or a manager sells the property he sells not only his own share but by the provisions of the Hindu Law he has the power of selling and does sell the interest of every member of the family. It may be that other members have the right to have the sale set aside on the grounds which are peculiar to Hindu Law, i. e., the sale is not for consideration and necessity. But that does not mean that the interest of every member of the family is not sold away, and if right, title and interest of every member are sold, by bringing a suit for pre-emption such a member will be a party to the sale, and, therefore, under Section 10 of the Punjab Pre-emption Act he has not the power to sue for pre-emption.

6. I am therefore of the opinion that the suit of the plaintiff has been rightly dismissed, and I affirm the judgment and decree of the learned District. Judge and dismiss the plaintiff's appeal with costs throughout.


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