1. A man called Sohan Lal of Ferozepore was the occupancy tenant of certain land situated in village Jamaitpura Dheru. He was subsequently declared insolvent and his property vested in the Special Official Receiver, Punjab and Delhi. Mr. Joshua, who was the Special Official Receiver sold the occupancy rights of the land in dispute to Chuni Lal for Rs. 900/- by means of a registered deed dated the 2nd of September 1942. Bagga Singh brought a Suit for pre-emption on the 16th December 1943. This suit was dismissed by the trial Court on the 1st of March 1946. He appealed to the District Judge, Ferozepore, who on the 23rd of May 1948, dismissed the appeal. He put in a second appeal before the Lahore High Court which is now before us for disposal.
2. This appeal came up originally before a Bench of this Court. At the time of hearing before the Bench on the 8th of April 1948, it was alleged that there had been a compromise between the parties. Two compromises were put forward, one by the respondent and one by the appellant. On this the Bench dealing with this matter framed four issues and sent the case to the trial Court to make a report on these issues. The issues were:
(1) Was the appeal compromised on the terms alleged by the respondent?
(2) If so, was this compromise brought about by fraud?
(3) Was the appeal compromised on the terms alleged by the appellant?
(4) What is the effect of the compromise if proved?
3. On the 9th of August 1948, the trial Judge made his report. He came to the conclusion that there was no fraud committed, but that there was but one single compromise though there were two compromise deeds both effected and reduced to writing the same day on two different pieces of papers Exs. P. A. and D. A.; that Ex. D. A. was the one which related to the present appeal while Ex. P. A. related to other matters. Ex. D. A. merely stated that Bagga Singh appellant gave up the appeal in the High Court and that the parties should be left to bear their own costs. Ex, P. A. related to certain other property and the compromise regarding that property was between. Bagga Singh, Dhanpat Rai and Chuni Lal Dhanpat Rai is the real maternal uncle of Chuni Lal and was the special attorney for him in this litigation. The learned trial Judge came to the conclusion that the terms in Ex. p. A. had not been carried out. In fact the respondent denied the very existence of Ex. P. A. The learned Judge held that Ex. p. A. and Ex. D. A. stand and fall together and before the respondent can call upon the Court to give effect to what is contained in Ex. D. A. he must fulni or see to the fulfilment of the terms in Ex. P. A. His view was that as the respondent was not prepared to carry out or to see to the carrying out of the part of compromise in Ex. P. A., then what is contained in Ex. D. A. should be ignored and the appeal should be decided on merits.
4. We have heard learned counsel for the parties and we agree with the findings of the trial Judge. In my opinion there has been no such compromise by which the second appeal in this Court could be held to have been concluded.
5. Coming to the merits of this second appeal the only point that has to be considered is whether Bagga Singh plaintiff has by his conduct waived and lost his right of pre-emption. The facts relating to the case are simple. The Special Official Receiver Mr. Joshua wrote to the locat Official Receiver and asked him to invite offers for the purchase of the occupancy rights of the insolvent. For this purpose, the local Official Receiver had a proclamation made by beat of drum. He recorded the evidence of the Lambardar of the village who stated that the proclamation had been made and no one was prepared to purchase the occupancy rights in the land as the landlords did not appear to be consenting. Section Nazim AH Shah, the local Official Receiver, thereupon wrote a letter to the Special Official Receiver, a copy of which is Ex. D. 4, that the proclamation had been made regarding the insolvent's rights in the land situated in the villages of Attari and Takhtuwala 'alias' Jamiatpura Dheru. The proclamation had been made in both villages and in the neighbouring villages. Regarding occupancy rights in the latter village he said that he had not received any offer higher than Rs. 900/-. He said that Lashkar Lambardar had stated before him that the proprietors of the land were not consenting in the sale and so no bid was forthcoming. Lashkar has appeared as a witness in the case and he has supported the fact of proclamation and the statement attributed to him by Section Nazim Ali Shah, Dheru Ram, the clerk of the Special Official Receiver, had also written- to the Special Official Receiver letter Ex. D. 1., to the same effect. Dheru Ram has gone into the witness-box and not only has he proved this letter Ex. d. L, but has also proved the letter Ex. D. 2 written to the Special Official Receiver. In that letter Ex. D. 2 it is stated: 'I have enquired from the owner of the occupancy land of the insolvent situated at Jamiatpura Dhem, but no one wishes to purchase * * * I have also inquired from Section Bagga Singh who purchased the insolvent's land of this village, but he also refused to purchase. Moreover no one wishes to purchase this land at his own risk, when there is no consent of the proprietors.'
6. Dheru Ram wrote this letter on the 7th of August 1942. Dheru Ram has come into the witness-box and has stated that he made enquiries from Bagga Singh and after the enquiries had been made wrote this letter. Bagga Singh is the plaintiff pre-emptor who is now the appellant. Because of Bagga Singh's refusal the Special Official Receiver made the sale in favour of Chuni Lal. The sale-deed in his favour was executed on 2nd September 1942. The parties appeared before the Sub-Registrar for registration of the deed on 4th September 1942. A report was made by the Patwari in his Roznamcha on 6th October 1942. Tenants attorned in favour of Chuni Lal on 7th October 1942. Bagga Singh wrote a letter to the special Official Receiver on 23rd October 1942 stating that the sale had been made without his permission and asking how and under what Act he had made the sale, The sale deed was registered on 18th December 1942. Bagga Singh brought the present suit for pre-emption nearly a year afterwards on 16th December 1943. The question is whether on the facts stated Bagga Singh waived and lost his right of pre-emption.
7. The evidence in the case has been believed by both the Courts and it proves that there had been a proclamation in the village and no one was coming forward to buy the occupancy rights and that enquiry had been made by Dheru Ram from Bagga Singh and Bagga Singh refused to buy the occupancy rights. Bagga Stogh's letter of the 23rd October 1942 was clearly an afterthought. The learned District Judge wrote a very short judgment in which he held that he saw no reason to disbelieve Dheru Ram and he held it clearly proved that the plaintiff stated to Dheru Ram that he had no intention of purchasing the land. It was urged before the District Judge that Bagga Singh's statement was not binding on Bagga Singh in the present case as it had been made to Dheru Ram who was a person having no authority. The District Judge said that this contention did not appear to have been put forward in the trial Court and that in his opinion it had no force. He wrote:
'As clerk of the Special Official Receiver Dheru Ram had 'prima facie' full authority to enquire into the matter, and the onus of proving that he had not, lay on the plaintiff.'
8. The only question that is to be decided in this case is whether in the circumstances enumerated above Bagga Singh is estopped from putting forward his right of pre-emption. The law of pre-emption makes a special inroad on the general rights of citizens of this country to hold land. He who urges that he has any rights must strictly prove them. His conduct must be straight and unambiguous and must not show that he had not by his conduct lost or waived those tights. Two things were urged in the present case: (1) that Dheru Ram had no authority and therefore the statement made to him was of no use and (2) the statement was not made to Chuni Lal, the defendant, and, therefore, Chuni Lal not being the person to whom the representation had been made could take no advantage of it. I do not accept either of these two contentions. The statement made to Dheru Ram was surely an admission made by a person clothed with a statutory right in property. It has to be seen whether this admission is of the status of an estoppel. The Special Official Receiver for the Punjab and Delhi could only act through agencies. He asked the local Official Receiver Section Nazim Ali Shah and he asked his clerk to make enquiries and to report to him. Agency is not necessarily created by documents. It can be implied from circumstances. I have no doubt that when the proclamation was made and enquiries were made every one in the village knew that the enquiries were being made on behalf of the Special Official Receiver. I must presume that the natural course of business was followed and in fact both Section Nazim All Shah and Dheru Ram have appeared in the witness-box and if there was any doubt as to whether they had or had not the necessary authority they could have been questioned on the subject. No questions having been put I must hold that Bagga Singh made a statement to an authorised person.
9. The second point is that Bagga Singh's statement was not made directly to Chuni Lal and, therefore, Chuni Lal cannot take advantage of it. The argument was that a representation, must be directly made to the person who is to take advantage of it. In support thereof a passage from Monir's Law of Evidence, 1949 Edition, was quoted from page 909:
'A representation is a statement made by, or on behalf of, one person to, or with the intention that it shall come to the notice of, another person, which relates, by way of affirmation, dental, description or otherwise, to an existing fact or thing, or a past event. Representation must be communicated to the representee. It takes two to make a representation, just as it takes two to make a contract.'
The learned author in support of this passage (moles Spencer Bower on Estoppel, Sections 40 and 41. The quotation, however, gives a partial statement of the law on this subject. If Spencer Bower's book is read further we find that Spencer Bower in Section 169 of his book states as follows:
'A representee is deemed in law to include not only any person to whom the representation was directly and immediately made, but also any person to whose notice the representation, though not made to him, was intended to, and did in fact, come. Such intention may be shown to have been expressed by the representor, when making the representation, in the form of a request or authority to the person addressed in the first instance to pass it on or repeat it to the person whom it was intended to reach, and who thus becomes the representee, or one, of two representees, as the case may be. Or such intention may be inferred from the representator's proved or presumed knowledge that the representation was of such a character that in the ordinary course of business, it would naturally and probably be transmitted to third persons. It results from this general rule that there are four main classes of possible representees, viz., (i) any person to whom the representation was physically and directly made, (ii) any principal or partner of such person, (iii) any specific person, not being a representee of either of the above types, whom nevertheless the representor, actually or presumptively, intended the representation to reach and affect, and whom it did in fact so reach and affect and (iv) any member of the public, or of a section of the community, who is proved to have acted on a representation addressed in the first instance, not to any specific individual, but to such public, or section.'
Further in Section 173 Spencer Bower writes as follows:
'Just as a man, though he cannot 'contract with the world', can nevertheless make a proposal to the public at large, or to a section of the community, which proposal, on being accepted by any individual belonging to the public, or the class in question, becomes a valid contract between him and the proposer, so also, on the same principle, anyone, though not capable of raising an estoppel against himself in favour of the public, or a class, in its entirety, can address a representation to such public, or class, which, if and when but not unless and until, acted upon to his prejudice by any member of such body of undesignated person, may operate as an estoppel against himself in favour of that individual.'
I find a quotation by Bigelow apparently approved by Mukerji J., in 'JOGESH CHANDRA v. EN-TAZ ALP, AIR 1927 Cal 34 to this effect:
'Only the person to whom the representation was made or for whom it was designed can avail himself of it......A person who receives statements secondhand, not intended for him, clearly has no right to act upon them. Indeed it is equally clear that a mere bystander who has overheard a statement made to and for another, has no better right to act upon it than if it had been communicated without authority to him; and so it has been decided. If, however, the declaration was intended to be general, then, it seems that one who did not hear it, but to whom it was made known directly afterwards, or within the time to be allowed for acting upon it, may act upon it. This should be the limit of the law: more than that would be to make a man responsible for an act not his own or that of his agent.'
(The facts of the case which was being dealt with by Mukerji, J., were such that he found that this quotation was not of help to the respondent in that case).
10. Sarkar in his book on evidence also quotes Jones to the following effect:
'The declaration of A to B, not made with the purpose or belief that it would be communicated to C or would influence his action, constitutes no estoppel upon A, although C afterwards hears of it and acts upon it. But conduct or declaration may be of so general or notorious a character that the public generally may assume that they are intended to be relied upon, as where a man publicly treats a woman as his wife, or an associate as his partner.'
11. I might refer to the case of 'Rameshar Prasad v. Ghisiawan', 51 All 820. That was a case of pre-emption dealt with by Sulaiman and Kendall JJ. I find it said by the learned Judges in that case at page 824 as follows:
'The learned Advocate for the plaintiff contends that there can be no absolute refusal so as to operate as an estoppel unless there first has been a definite contract settled, with a definite vendee, for a definite price, of the sale of a definite property and that no amount of refusal before such a complete contract can deprive the pre-emptor of his right of pre-emption. He strongly relies on a number of earlier cases of this Court which no doubt lay down the rule in those broad terms. * * * * With great respect, we would say that the rule was laid down too broadly in these cases. There can be an estoppel under Section 115 of the Indian Evidence Act if the refusal of the plaintiff has prejudiced the predecessor or the vendee and has induced them to act upon such representation and to compromise their position. We do not see why there should not be a personal estoppel against the plaintiff on account of his own previous conduct and unambiguous declaration.'
The learned Judges later referred to Sections 14 and 15 of the Agra Pre-emption Act. These sections provide as follows:
'14. (1) When a co-sharer or petty proprietor proposes to sell any land in any case in which such sale would give rise to a right of preemption he may give notice by registered post to all persons having a right of pre-emption in respect of such sale.
(2) Such notice shall clearly describe the property to be sold and state the name of the vendee and the price settled.
'15. The right of pre-emption of any person to whom a notice has been issued under Section 14, shall be extinguished unless such person within the period of one month of the receipt of the notice (and in case of pre-emptors being out of India three months), communicates by registered post his intention to purchase the property:
Provided that the right of pre-emption shall not be extinguished if the property is actually sold for an amount smaller than that mentioned in the notice, or to a person not mentioned in the notice as vendee.'
At pages 825 and 826 the learned Judges are reported to have said, as follows:
'If a notice as prescribed in Section 14 has been given, a mere failure to reply would extinguish the right, but it does not follow that if no such notice has been given, there can never be a case in which there may be a similar estoppel.
In our opinion every case must be considered on its own facts. A mere refusal to purchase need not in every case amount to a waiver of the right of pre-emption. A co-sharer may not be prepared to take the sale direct, but may well be prepared to pre-empt the property in case it is sold to a stranger. On the other hand, a waiver of the right of pre-emption can also be inferred from a clear, unambiguous and absolute refusal to purchase the property in any event. It seems to us that if a co-sharer wishes to preserve his right of pre-emption in case of a sale he should not merely refuse to purchase the property on the ground that he had no means to purchase it, but he should make it clear that he is reserving his right of pre-emption. He cannot be allowed to use unambiguous language indicating an absolute refusal and make a mental reservation in his favour to the prejudice of the vendor.'
12. In the Pre-emption Act in force in our State we have Sections 19 and 20 providing as follows;
'19. When any person proposes to sell any agricultural land or village immovable property or urban immovable property or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be.
Such notice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be struck up on the chaupal or other public place of the village, town or place in which the land or property is situate.
'20. The right of pre-emption of any person shall be extinguished unless such person shall, within the period of three months from the date on which the notice under s. 19 is duly given or within such further period, not exceeding one year from such date, as the Court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of preemption. Such notice shall state whether the pre-emptor accepts the price or amount due on the footing of the mortgage as correct or not, and if not, what sum he is willing to pay.
When the Court is satisfied that the said notice has been duly served on the vendor or mortgagee, the proceedings shall be filed.'
In the case of 'Ram Sahai v. Mohd. Tufail', AIR 1929 Lah 265, a second appeal decided by Shadl Lal C. J. and Bhide J., the judgment contains the following remarks:
'It was urged that the provisions of Section 19 and Section 20 have not been complied with in the present instance but these sections only provide a convenient method for giving notice to all the pra-emptors concerned and do not preclude the possibility of 'waiver' resulting from the conduct of an individual in other Ways. It was finally urged that the evidence does not show that the house was offered to the plaintiff at any definite price, but there seems no force whatever in this contention as the plaintiff declined to purchase the house in unequivocal terms on the ground that the house was situated in a Muhammadan Muhalla. It would have been perfectly useless for the vendor, in these circumstances, to mention the price at which he was prepared to sell the house.'
13. In the present case, there was a public proclamation and neither Bagga Singh nor anybody else came forward to purchase the occupancy rights. The Special Official Receive was a public officer and Bagga Singh was specially asked by his (the Special Official Receiver's) clerk (who must be regarded as his authorised agent) to purchase but declined to do so in unequivocal language. The learned District Judge could assume from these tacts and in my opinion rightly that the conduct and declaration of Bagga Singh were intended to be general and notorious permitting the Special Official Receiver to search for other purchasers. Under Section 114 of the Evidence Act, Courts in this case would be justified in presuming having regard to human conduct and to ordinary course of business (both public and private) that intending purchasers would have come to know from the Special Official Receiver and his clerk that Bagga Singh had refused to purchase. In these circumstances Bagga Singh intentionally permitted, even if he did not intentionally cause intending purchasers (Chuni Lal included) to believe that he was not buying the property. Eagga Singh having generated this belief cannot now be allowed to say that he still mentully reserved to himself any preemptive right. In my opinion the learned District' Judge was right in his finding.
Counsel for the appellant relied on a ruling of their Lordships of the Privy Council in the case of 'Dawsons Bank Ltd. v. Nippon Menkwa', 62 Ind App 100: 13 Rang 256 (PC). In that case their Lordships found that there was a 'complete absence of any evidence that Patel when he paid the money to Sawkai, relied upon the presence of the letters O. K. on the delivery orders or bills, and this is an essential statement in establishing the plaintiffs' plea of estoppel'. Their Lordships were not dealing with a case of a general representation to the world at large, in which a presumption under Section 114 of the Evidence Act may legitimately be drawn as in the present case.
14. In my opinion there is no force in this appeal and I would dismiss it with costs.
Harnam Singh J.
15. I agree in dismissing the appeal with costs.