C.B. Bhargava, J.
1. This civil second appeal arises out of a suit for pre-emption.
2. The suit property was sold by Naraindas on his own behalf and as guardian of his minor sons Nandkishore and Satnarain for a sum of Rs. 600/- on 19th December, 1956 by means of a registered sale-deed in favour of Madanmohan respondent No. 3. Shrinarain and Samrathmal filed a suit for pre-emption on the ground that they were co-sharers in the chowk, staircase and entrance of the suit house. Naraindas and his minor son Nandkishore were also impleaded as defendants to the suit.
3. The suit was contested by all the defendants. One of the pleas raised by Nandkishore in his written statement was that the sale of the suit property by his father Naraindas was without any legal necessity and was not binding on his share. Madanmohan vendee stated that after purchasing the property he had spent Rs. 656/11/- in its improvement which he was entitled to get in case the plaintiffs were allowed to pre-empt the property. In reply to the plaintiffs' allegation that the real price for which the property was purchased was Rs. 400/- he stated that actually Rs. 600/- the price entered in the sale-deed was paid.
4. Before the institution of the suit for preemption by Shrinath and Samrithmal, the minor sons of Naraindas had instituted suit No. 220 of 1957 For cancellation of sale for want of legal necessity--the property being ancestral. In the alternative they claimed a right of pre-emption of the share of Naraindas. This suit was contested by Madanmohan vendee. Plaintiffs to the preemption suit also applied though at a very late stage when even the arguments in the case had been heard, to be made parties in the suit. But their application was rejected. That suit resulted in the decree in favour of Nandkishore and Naraindas (Satnarain?). The sale was set aside to the extent of their shares in the properly and further a decree for pre-emption was granted as regards the share of Naraindas. The vendee did not prefer any appeal against the decree. After this decree was passed, further objection was taken on behalf of Nandkishore that the sale having been set aside in suit No. 220 of 1957 by a decree of the Court, there was nothing left to be pre-empted. In the alternative it was stated that they had a preferential right of pre-emption as compared to the plaintiffs in the pre-emption suit. Previously it was also pleaded that the suit for preemption and suit No. 220 of 1957 should be consolidated but no orders were passed in this regard.
5. The trial Court framed necessary issues and evidence had been led and the parties were heard, it dismissed the plaintiffs' suit holding that the sale had been set aside and there remained nothing to be pre-empted. Plaintiffs went in appeal and the learned Senior Civil Judge set aside the decree and remanded the case directing the plaintiffs to implead Satnarain another minor son of Naraindas in the suit because after the decree in suit No. 220 of 1957, he was to be regarded as a rival preemptor. Accordingly Satnarain was also impleaded as defendant in the plaintiffs' suit. He also filed a separate written statement and took up the same pleas which were taken by Nandkishore namely that there was no subsisting sale and as such the suit for pre-emption must fail and alternatively that he had a preferential right of pre-emption. Some more issues were framed and the parties adduced their evidence.
The trial Court eventually decreed the plaintiffs suit. Vendees claimed with regard to the money spent by him in making improvements after the sale was also disallowed. Two appeals were preferred against this decree one by Nandkishore and Satnarain and the other by the vendee Madanmohan. The learned Senior Civil Judge affirmed the decree of the trial Court holding that the decree passed in suit No. 220 of 1957 had no binding effect upon the plaintiffs as they were not parties to that suit. The learned Judge also agreed with the trial Court so tar as the vendees', claim was concerned. Now being aggrieved by this decree Nandkishore and Satnarain on the one hand and vendees on the other have come to this Court in second appeal.
6. The main contention of the learned counselof Nandkishore and Satnarain is that no decree forpre-emption could nave been passed in view of thesale having been set aside by a decree of the Courtin suit No. 220 of 1957. It is contended that thesuit property was ancestral and Nandkishore andSatnarain had an existing right in that propertyand after a decree was passed in their favour theycould lay a preferential claim of pre-emption asagainst the plaintiffs. Learned counsel contendsthat the right of preemption is a right of substitution only in place of the vendee and that rightmust subsist, until a decree is passed in favourof the plaintiffs. But in the present suit, the salewhich is the basis of the suit for preemption wasitself set aside before the decree in the suit for preemption.
Learned counsel relies upon the following observations made by Mahmood J. in Janki v. Girajdat, ILR 7 All 482 (FB) which were quoted with approval at page 1371 in Radhakishan Laxminarayan v. Shridhar Ramchandra, AIR 1960 SC 1368:
'If a valid and perfected sale were not a condition precedent to the exercise of the pre-emptive right, consequences would follow which the law of pre-emption does not contemplate or provide for. In this very case, supposing the so-called vendor, notwithstanding the application of the 15th August 1882 (which cannot amount to an estoppel under the circumstances) continues or re-enters into possession of the property, it is clear that the so-called vendee would have no title under the so-called sale, to enable him to recover possession--the transaction being, by reason of Section 54 of the Transfer of Property Act ineffectual as transfer of ownership. The right of pre-emption being only a right of substitution, the successful pre-emptor's title is necessarily the same as that of the vendee and if the vendee took nothing under the sale the pre-emp or can take nothing either; and it follows that if the vendee could not oust the vendor, the preemptor could not do so either; because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring ownership. Again, if notwithstanding a pre-emptive suit such as this, the so-called vendor, who has executed an invalid sale which does not in law divest him of the proprietary right, subsequently executes a valid and registered sale-deed in favour of a co-sharer other than the pre-emptor or in favour of a purchaser for value without notice of the so-called contract for sale it is difficult to conceive how the pre-emptor, who has succeeded in a suit like the present, could resist the claim of such purchaser for possession of the property.'
7. Learned counsel for the preemptors on the other hand urges that the decree passed in suit No. 220 of 1957, does not affect the rights of the preemptors at all because they were not parties to the suit. In support he relies on a decision of this Court in Shrimati Durga Devi v. Shrimati Jamna Devi, ILR (1962) 12 Raj 965. As regards the preferential claim of Nandkishore and Sat Narain to preempt the share of Naraindas, it is urged that they are parties to the sale as vendors and cannot institute a suit for preemption. In support learned eouusel relies upon Shri Krishan v. Bansidhar, 1956 Raj LW 381. He further urges that to a suit for preemption an enquiry about the validity of the sale cannot be made because the preemptor takes whatever is conveyed by the sale subject to all the rights and infirmities.
8. Now so far as to the principles laid down in the two cases of this Court relied upon by the learned counsel for the respondents are concerned, there cannot be any dispute. The preemptor is not a representative in interest of the vendee and a decree which has been passed in his absence against the vendee, Would not affect his rights. It was held by Bhandari J. in that case:
'The contract of purchase and sale havingbeen completed, the right of preemption accruedand no subsequent dissolution of the contract between the parties injures or dissolves the right ofpreemption. Even if the sale is cancelled or declared ineffective by a court of law in a suit to whichthe pre-emptor is not a party, such declaration wouldnot affect the right of the preemptor. If anyperson has any claim in respect of the property,that claim in order to bind the preemptor must beadjudicated in his presence.'
With respect I agree with the above proposition oflaw and hold that the preemptors in this case arenot bound by the decree passed in suit No. 220 of1957 and their rights are not affected by the saiddecree. Similarly it cannot be disputed that afather in alienating the ancestral property for legalnecessity, acts on behalf of the members of the jointHindu family with their implied consent and tosuch sale all the members constituting the jointHindu family shall be regarded as parties. Beingparties to the sale such members cannot maintaina suit for preemption. It is obvious that a vendorhimself cannot be a preemptor. There can be noobjection to the above principle so far as the legalnecessity for the sale by the father is admitted oris established.
But what Mr. Joshi urges is this that in a suit for preemption no enquiry can be made as to the validity of the sale when such objection is taken on behalf of the members of the joint Hindu family. Mr. Joshi has not been able to cite any decision having a direct bearing on this question. Generally speaking such enquiry may be foreign to the scope of a suit for preemption but neither on authority nor on principle I see any legal bar to such enquiry being made in appropriate cases. Undoubtedly after the preemption suit is decreed, the sons have got a right to institute a suit against the preemptors and get the sale set aside if they are able to establish that it was without any legal necessity. That being so I do not see why such enquiry cannot be made in a suit where the sons who are impleaded as defendants raise this question. If such enquiry is made in a suit for preemption it will avoid the multiplicity of suits and save the parties from further litigation.
There are reported cases which show that enquiries have been made in suits for preemption regarding the validity of sale. Reference may be made to Mt. Dhan Devi v. Balmokand, 18 Ind Cas 122 (Lah) where a house belonging to a Hindu lady A, was sold by her husband B during her absence. C. brought a suit for pre-emption against B. and his vendee D. During the pendency of the pre-emption suit, A. obtained ,a decree for cancellation of sale and possession of the house against B. and D. A was impleaded as a defendant in the preemption suit and it was proved that the house belonged to A. and B. had no authority to sell the house in A. behalf. Both B. and D. acknowledged that A. was the real owner of the house and that they had no rights in the house. It was held that:
1. that the suit of the preemptor, C., should be dismissed.
2. that the doctrine of respondents did not apply to the decree obtained by A. against B. and
In Parsashth Nath Tewari v. Dhanai Ojha, ILR 32 Cal 988 it was held that:
'No right of preemption arises when the sale, upon the contingency of which the right is claimed, is a fictitious transaction arranged so as to cheat the pre-emptor.'
And so also in Badlu v. Hardeo Singh, AIR 1942 Oudh 206. In the present case Nandkishore was made a defendant from the beginning. He specifically pleaded that the sale made by his father being without legal necessity was not binding upon his share in the suit property. Satnarain was ordered to be made a party by the first appellate court after the decree in suit No. 220 of 1957 was passed and he also raised the same objections. Issues Nos. 5 and 8 were vaguely worded and were not specific as to the question of validity of sale for want of legal necessity with the result that the parties did not adduce any evidence on that point. In my view, the present case was an appropriate one where enquiry about the validity of the sale on the objections of Nandkishore and Satnarain ought to have been made particularly after the order of the first appellate court. In the absence of such enquiry I am unable to decide finally the question which has been urged in this appeal. It therefore, seems just and proper that additional issues may be framed and tried. Following issues are therefore, framed:
1. Whether the sale of the suit property by Naraindas was for legal necessity and binding upon the shares of Nandkishore and Satnarain?
2. In case the finding on the above issue is against the plaintiff--have Nandkishore and Satnarain a preferential right of pre-emption in regard to the share of Naraindass.
9. The above issues are therefore, remittedto the court of Senior Civil Judge, Jodhpur for determination. Parties will be at liberty to adduce evidence both documentary and oral in regard tothese issues. The learned Judge will return therecord along with his findings within three months.The appeal will be put up for hearing after thefinding is received.