V.P. Tyagi, J.
1. This is defendant's first appeal against the judgment and decree of the learned Additional District Judge, Churu dated 21st March, 1972 in a suit for pre-emption.
2. Respondent Mst. Teeja Devi purchased 1/3rd portion of a house for a consideration of Rs. 10,000/- from Shri Laxmipat defendant No. 2. The plaintiff who claimed himself to be a co-sharer, filed a suit for a decree for pre-emption alleging that he had no knowledge of the sale and that the sale was made by Laxmipat without giving any notice to him under the provisions of the Rajasthan Pre-emption Act, 1966. He also averred that the property was actually sold for Rs. 8,000/- but a fictitious figure of Rupees 10,000/- was mentioned in the sale-deed and he, therefore, prayed that the decree of preemption in respect of 1/3rd portion of the house belonging to Laxmipat, details whereof were given in para 1 of the plaint, be passed in his favour.
3. The suit was contested by the defendant-vendee who came out with a plea that there had been a partition in the family and, therefore, the plaintiff could not claim himself as a co-sharer in respect of the suit property and since a notice was given to the father and uncle of the plaintiff through whom he derived his title and interest in the property, he has no locus standi to file a suit for pre-emption. It was however denied that the real sale price of the property was Rs. 8,000/-.
4. The learned trial Judge after framing as many as 5 issues and recording the evidence produced by both the parties, came to the conclusion that the property was sold by Shri Laxmipat to respondent Mst. Teeja Devi for Rs. 10,000/-. He also held that though notices of sale were given to the father and uncle of the plaintiff but these notices cannot bind the plaintiff and cannot come in his way to seek a decree for preemption. The learned. Judge further held thatthe house in question was never partitioned by metes and bounds and, therefore, it cannot be said that the plaintiff had no interest in the property. In these circumstances the plaintiff was declared as a co-sharer with respect to disputed property within the meaning of the term 'cosharer' as defined in the Rajasthan Pre-emption Act, 1966. In view of these findings the learned Judge passed a decree in favour of the plaintiff and directed, that the plaintiff should deposit an amount of Rs. 10,000/- in the Court upto 18th May, 1972 and thereafter vendee Mst. Teeja Devi must execute a sale-deed in favour of the plaintiff and get it registered in respect of l/3rd of the house purchased by her for Rs. 10,000/-.
5. Smt. Teeja Devi has filed this appeal against the said judgment.
6. The first argument of the learned counsel for the appellant is that Tolaram P. W. 6, the father of the plaintiff, has himself admitted in the witness box that the partition in the family had taken place and, therefore, the plaintiff cannot claim himself as a co-sharer in respect of the share of the property belonging to Laxmipat. It was further argued that the plaintiff usually resides in Nepal and, therefore, he does not require the property for his own use. Further argument of the learned counsel for the appellant is that the plaintiff derives his right in the property through his father who was served with a notice of the intention of sale but he refused to purchase the property from Laxmipat and, therefore, the plaintiff cannot now seek a relief by way of pre-emption when his father through whom he derives his right in the property, refused to purchase it.
7. Learned counsel for the respondent on the other hand drew my attention to the deed of sale executed by Laxmipat in favour of respondent Teeja Devi wherein it has been specifically mentioned that the property was not divided and was a joint property and, therefore, the interest of the plaintiff respondent who was undoubtedly a member of the family to which Laxmipat belongs, is quite obvious and, therefore, he can sue for pre-emption as a co-sharer. As regards notice, it was urged that in order to oust the co-sharer from claiming a decree for pre-emption the law requires that the seller should serve a notice to the person who can claim a right of pre-emption under the provisions of the Act and that such a notice must be served through the agency of the Civil Court. According to the learned counsel for the respondent if such a notice is not served on a co-sharer, then in that event he cannot be debarred from making a claim for a decree for pre-emption.
8. In the sale-deed executed by Laxmipat on 4-10-1968 in favour of Mst. Teeja Devi in respect of 1/3rd share of the house belonging to Laxmipat, a mention hasbeen made in the following words about the character of the property,--
^^;g edku vHkh rd leLrHkkxhnkjksa ds la;qDr gSa A**
This sentence is quite significant and it shows that the family house was jointly held by the members of the family on the day it was sold to Mst. Teeja Devi. It is however not denied that Laxmipat and the plaintiff belong to one family but it is contended by Mr. Bapna that there was a partition in the family. In this connection Mr. Bapna pointed out to that portion of the testimony of P. W. 6 Tolaram father of the plaintiff, wherein he has stated that there had been a partition between him and his family which shows that the joint status of the family had come to an end and as such it is urged that the property should be deemed to have been partitioned between the coparceners. It is further argued that the plaintiff has claimed a definite share i.e. 1/48th share in the property which shows that the status of the joint family came to an end. Mr. Bapna, in this connection referred to the text of Hindu Law by Mulla and submitted that after the partition of the family if a definite share in the property was claimed by the members then it shall be taken that the property is also partitioned. In other words he meant to suggest that if shares are defined in the property then it is not necessary to take away the character of the joint property that there should be an actual division of the property by metes and bounds. On the basis of this argument Mr. Bapna urged that as soon as the plaintiff claimed 1/48th share in the joint property, it shall be deemed that the partition of the property had taken place and the testimony of Tolaram P. W. 6 that there had been a partition in the family, stands corroborated.
9. Mr. Jain on the other hand contended that the deposition by Tolaram simply proves that the status of a joint family had come to an end but it was not enough to establish that the property was actually partitioned by metes and bounds to finish the entire interest of the family members in the property and, therefore, the plaintiff who was once a coparcener, can still claim interest in that portion of the property which is sold to Mst. Teeja Devi unless the partition of the property had taken place by metes and bounds.
10. In Article 326 of Mulla's Treatise on Hindu Law, it has been mentioned with reference to a Privy Council case that, 'when the members of an undivided family agree among themselves with regard to a particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he mayclaim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided.' This text relied upon by Mr. Bapna in my opinion, does not finish the entire interest of the family member on the property as he is not in position to say that the joint property is partitioned by metes and bounds and that particular portion would fall to his share.
11. Whatever has been mentioned in the sale deed, it appears that the property in question was never divided by metes and bounds though it is clear from the testimony of Tolaram P. W. 6 that the joint status of the family had come to an end as there had been a partition defining the numerical shares in favour of each of the coparcener. It is, therefore, to be seen as to what is the effect of this type of partition of the family status without physically partitioning the property by metes and bounds. Mulla has mentioned that 'after the shares are so denned the parties may divide the property by metes and bounds or they may continue to live together and enjoy the property in common as before. But whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint immediately the shares are defined, and thenceforth the parties hold the property as tenants-in-common. From this text it becomes clear that before the joint property is partitioned by metes and bounds, the caparceners who have concluded their status of the joint Hindu family can enjoy that property as tenants-in-common and unless the share of each of the coparcener is severed by partitioning the property by metes and bounds, a coparcener cannot be said to have lost the entire interest in the property. The person having 1/48th share in the property cannot say as to which portion of the property will come to his share on the partition by metes and bounds and, therefore, the interest to that extent continues in the property.
12. Co-sharer who has given the right of pre-emption under the Rajasthan Preemption Act, 1966, has been denned in Section 2 of the Act. Co-sharer according to this definition means, (i) 'co-sharer', used in relation to any immovable property, means any person entitled as an owner or a proprietor to any share or part in such property, whether his name is or is not recorded as such owner or proprietor in the record of rights or in any register prepared in accordance with law. The plaintiff, as discussed, above, did not lose all his interest in the property which once belonged to him as the member of the joint Hindu family simply because his share was defined therein and, therefore, his interest was very much intact in respect of the property and as such he can conveniently fall within the definition of a co-sharer as given in Section 2 of the Act. As such he could claim as of right a decreefor pre-emption in respect of the property in relation to which he can be termed as a co-sharer. Only because there had been a partition and the shares were numerically defined of each co-sharer in the family, the interest of the plaintiff did not totally extinguish. In this view of the matter I agree with the finding of the trial Court that the position of the plaintiff in respect of the property in suit was that of a co-sharer and as such he could file a suit for pre-emption.
13. As regards the question of notice, there is no dispute on this point that no notice of sale was given by the seller to the plaintiff. It is however contended that the father and uncle of the plaintiff were informed about the sale and they refused to purchase the same. The question is whether the notice to father or uncle is sufficient under the Law to debar the plaintiff to claim a decree for pre-emption.
14. The plaintiff, as discussed above, is undoubtedly a co-sharer in the joint Hindu family property as there was no actual partition of the property by metes and bounds. The right of being a co-sharer flows from the plaintiff's status as being a coparcener in the former joint Hindu family and as such it is difficult to say that he traced his right of being a co-sharer through his father. The interest in the joint Hindu family property is created in favour of the coparcener by virtue of his birth in the family and, therefore, it cannot be said that the plaintiff had acquired his right through his father. In these circumstances notice of sale given to his father or uncle, could not come in the way of the plaintiff to file a suit for pre-emption. Waiver of the right to pre-empt by father does not disentitle the son to bring a suit for pre-emption. See Sanwal Das v. Jaigo Mal, AIR 1924 Lah 68. This argument that plaintiff's father refused to purchase the share of the vendor does not carry the case of the defendant any further.
15. The learned Judge while passing a decree in favour of the plaintiff, directed that the plaintiff shall deposit a sum of Rs. 10,000/- in the court by 18th May, 1972 and thereafter Mst. Teeja Devi the purchaser of the 1/3rd share of the house, shall execute a sale-deed in favour of the appellant and get it registered. I feel that the learned Judge did not correctly understand the scope of the decree for pre-emption. The Full Bench of this Court in Nathuram v. Patram, 1960 Raj LW 162=(AIR 1960 Raj 125) relying on the observations of Mahmood, J. in (1885) ILR 7 All 775 (FB) unequivocally laid down that the right of pre-emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property to obtain, in substitution of the buyer, proprietary possession of certain immovable property not of his own, on such terms as those on which such latter immovable property is sold to other person.
In this connection Mahmood, J. in the abovereferred case has observed as follows:--
'Under Mohammedan Law right of preemption is not a right of repurchase either from the vendor or from the vendee, involving any new contract of sale, bat simply a right of substitution entitling the pre-emptor by reason of a legal incident to which the sale itself was subject to stand in the shoes of the vendee in respect of the rights and obligations arising from a sale under which he derived his title.'
The learned Judge further observed that the right of pre-emption is in effect, as if in a sale-deed the vendee's name were rubbed out and the pre-employ's name inserted in its place. Otherwise, because every sale of a pre-emptional tenement renders the right of preemption enforceable in respect thereto, every successful pre-emptor obtaining possession of the property by the so-called 're-purchase' from the vendee, would be subject to another pre-emptive claim, dating, not from the original sale, but from such 're-purchase'--a state of things most easily conceivable where the new claimant is a pre-emptor of a higher degree than the pre-emptor who has already succeeded. The reasoning given by Mahmood, J. appears to be quite sound. These observations of the learned Judge have been approved by the Full Beach of this Court and have laid down the correct scope of the right of pre-emption. In this view of the decision of this Court the direction given by the learned trial Judge directing Mst. Teeja Devi to execute a sale-dead in favour of plaintiff is un-called for.
16. The sate price of Rs. 10,000/- has been deposited by the plaintiff in the court below in pursuance of the decree passed by the trial Judge. This Court by its order dated 21-10-1974 directed the executing court to deposit the amount of Rs. 10,000/- in a scheduled bank in saving account and it was observed that the interest accruing to that amount shall be withdrawn by the respondent irrespective of the decision of this appeal. It is, therefore, ordered that the interest accruing on the deposit of Rs. 10,000/- will foe paid to the respondent pre-emptor and the amount of Rs. 10,000/- be paid to the appellant. The appeal is, therefore, dismissed with costs.