1. This is an appeal against the judgment of the High Court of the former Jodhpur State dated 22-11-1948. It was filed in the Ijlas-i-khas of the former Jodhpur State on 28-2-1949. After the formation of the greater Rajasthan it has come for hearing before this Court by virtue of the provisions of the Rajasthan Appeals and Petitions (Discontinuance) Ordinances (No. 40 of 1949 and No. 12 of 1950).
2. In order to appreciate the facts of this case, it would be proper to give a pedigree table showing relationship of the plaintiff-appellant with some of the respondents.
Dhan Raj Khub Chand
(Plaintiff. Appellant) (Defdt.-Respdt. No.5)
(Defdt.-Respdt. No. 6)
The parties in this case are residents of Ladnun. The respondents 5 and 6, Mulchand and Ganeshmal, executed a sale-deed on 3-4-1944 in respect of a 'nohra' situated in the same village in favour of the defendant-respondents Laxminarayan and his sons Surajmal, Mansukhraj and Khinvraj. On 3-7-1944, this document was got registered but only by the vendor Moolchand. On 16-12-1944, Trilokchand filed a suit for pre-emption of the said property against the vendors and the vendees mentioned above in the Court of Thikana Ladnun. The defendant contested the suit on several grounds, one of them being that the plaintiff was not entitled to bring a suit for preemption because he was not related to the vendors within three degrees as required by Marwar Law of Pre-emption.
3. The trial Court found that the plaintiff was related to the vendor Mulchand within three degrees but the other vendor Ganeshmal was related to him within four degrees and since the property belonged to them both and was jointly sold by them, the plaintiff's claim was not maintainable according to law. Accordingly the suit was dismissed by that Court.
4. The plaintiff went in appeal and the Additional District Judge of the former Jodhpur State, who heard it, set aside the decision of the trial Court and remanded the case for its disposal on other issues. The defendant thereupon went in second appeal to the High Court of the former Jodhpur State. That Court set aside the decision of the first appellate Court and restored the trial Court's decree regarding dismissal of the suit.
5. The appellant's learned advocate has attacked the judgment appealed against on three grounds. In the first place it has been contended that the learned Judges of the High Court of the former Jodhpur State have committed an error in adopting a wrong principle for the computation of degrees of relationship. It is urged that the appellant was related to both the vendors within three degrees as required by Section 3 of the Law of Pre-emption in Marwar.
His second contention is that the property in dispute belonged to the vendor Mulchand alone, that he alone had got the deed registered, the sale was therefore made only by him, and since he was admittedly related within three degrees with the pre-emptor, the suit should have been decreed. His last contention is that even if it be assumed that the property belonged, to both the vendors, the plaintiff was still entitled to Mulchand's share in the property.
6. The first point which, therefore, calls for determination is as to what is the correct method of computing degrees of relationship between a pre-emptor and a vendor. Before proceeding with the arguments advanced by learned advocates for both the parties, it would be proper to reproduce the relevant portion of Section 3 of the Law of Pre-emption in Marwar, which runs as follows:
'The right of pre-emption in respect of a house or a building plot shall belong to the undermentioned in the following order:
2nd to person related within three degrees to the vendor of the house or building plot:
Provided that the nearer in degree shall have priority over one more remote. 3rd................'
We are here concerned with the second clause and, therefore, the remaining portion of the section has not been reproduced.
It has been argued by the appellant's learned advocate that according to the language of Clause (ii) of Section 3 mentioned above, all that is necessary for the pre-emptor to substantiate his claim, is to prove that he is related to the vendor within three degrees and that it is not further necessary that the vendor should also be related to him within three degrees. In other words, according to him, mutuality of relationship between a pre-emptor and a vendor is not necessary.
It is further urged that the proper method of computing the relationship is to count the degrees from the common ancestor to the pre-emptor. He means to say that in the pedigree table shown above, the plaintiff Tilokchand is removed from the common ancestor Sarup Chand within three degrees and that alone is sufficient to entitle him to a claim for pre-emption. According to his argument, it is sufficient that the vendors are related to the common ancestor, but it is not necessary to count degrees of relationship with the common ancestor on the other side. In support of his argument, he has referred to the cases of -- 'Adit Narain Singh v. Mahabir Pd.', AIR 1921 PC 53 (A); -- 'Ram Sia v. Bua', AIR 1924 All 790 (B); -- 'Zalim Singh v. Raghunandan', AIR 1929 All 379 (C); -- 'Mt. Bachuli v. Udai Singh', AIR 1933 All 391 (D) and -- 'Sohanraj v. Mst. Maryam', 1942 Mar LR (Civil) 156 (E).
7. The respondent's learned advocate on the other hand has tried to argue that even the vendor Mulchand was not related to the pre-emptor within three degrees. According to him the correct method of computing the degrees of kindred relationship is given in Section 28, Indian Succession Act, read with Schedule 1 thereof. If computed in that more, even the vendor Mulchand would be related to the pre-emptor in the fourth degree.
8. It may be observed that learned advocates for both the sides have stretched their arguments to extreme lengths. Section 28, Succession Act, falls within Part IV of the Act and Section 23 which begins with this Part makes it quite clear that this Part does not apply to a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi. For the same reason Schedule 1 of the Act also does not apply. The parties in this case are Hindus and, therefore, Section 28 or Schedule 1, Indian Succession Act, do not apply to the present case and this argument of the respondent's learned advocate may be summarily dismissed.
9. As regards the argument of the appellant's learned advocate it may be stated that the cases which he has cited and which have been referred above, do not support it. In the case of -- 'AIR 1921 PC 53 (A)', it was observed by their Lordships :
'The rule of the Mitakshara in preferring the nearer to the more remote class of bandhus, is not dependant on individual propinquity or on the efficacy of offerings to a deceased person. But a bandhu must, in order to be heritable in a female line, Jail within the fifth degree from the common male ancestor and must be so related to the deceased person that they were mutually sapindas of one another, that is to say, where the Mitakshara applies, persons connected by particles of one body.'
10. The above case was referred to in the case of -- 'Ram Sia v. Bua (B)' in which it was held that the counting for fixing on heritable bandhus should be not from the propositus but from the common ancestor.
11. In the case of -- 'Zalim Singh v. Raghunandan (C)', it was again stressed that according to the view of Allahabad High Court the counting of degrees is from the common ancestor.
12. In the case of -- 'Mst. Bachuli v. Udai Singh. (D)', it was further reiterated that the method of counting the degrees of relationship was to count back to the common ancestor treating him as No. 1.
13. This case was referred with approval in the case of -- 'Sohanraj v. Mst Maryam (E)'.
14. It may be pointed out that in all these cases what has been laid down as a correct method of computing degrees is that the relationship of the parties concerned should be counted from the common ancestor treating him as No. 1. It has nowhere been expressed in any of the cases cited above that the relationship from the common ancestor should be counted only on one side and not on the other side.
The appellant's learned advocate has tried to build up an argument that in the case of -- 'Adit Narayan Singh (A)' their Lordships of the Privy Council had specifically laid down in the case of Bandhus that they should be so related to the deceased person that they were mutually sapindas of one another. He meant to say that in the case of sapindas mutuality of relationship has been specifically stressed but in the case of a pre-emptor and a vendor, Clause 2nd of Section 3 of the Marwar Law of Pre-emption puts no special stress on the mutuality of relationship between them.
According to him, if the pre-emptor alone is related to the common ancestor within three degrees, it is sufficient to entitle him to put in a valid claim for pre-emption of the disputed property. He contends that however far the vendor or vendors may be removed from the common ancestor, it does not matter. In our opinion, this line of reasoning is not sound and cannot be accepted. Clause 2nd of Section 3 of the Law of Preemption in Marwar quite clearly says that the right of pre-emption shall belong to a 'person related within three degrees to the vendor'. This means that the mutuality of relationship between a pre-emptor and a vendor within three degrees is absolutely necessary. If we count the relationship of pre-emptor alone from the common ancestor, then it would mean that the preemptor should be related to the common ancestor within three degrees but he need not be related to the vendor within the same degrees. If the argument of the appellant's learned advocate is accepted, then a pre-emptor who is removed within three degrees from the common ancestor would be related within three degrees from all persons on the other side whether they are removed from the common ancestor within the first, second or the seventh degree. This appears to be an ingenious way of computing degrees which does not seem to have been suggested anywhere so far.
In this connection reference may be made to Mayne on Hindu Law and Usage (11th Edn., p. 151) and Principles, of Hindu Law by D. P. Mulla (11th Edn., p. 52, Explanation 1). As suggested by both these jurists, in the case of Hindus, the usual mode of computation of the degrees of relationship is to calculate the degrees
'from and inclusive of the deceased in the case of ascendants and descendants of the deceased, and from and inclusive of the common ancestor in the case of descendants of the common ancestor.'
In the present case, the common ancestor, as admitted by both the parties, was Sarup Chand. The plaintiff and the vendor Mulchand are certainly removed from him in the third degree, but the second vendor (defendant 6) Ganeshmal is removed from the common ancestor in the fourth degree and therefore the plaintiff is related to defendant 5 in the third degree and to defendant 6 in the fourth degree. The learned Judges of the High Court of the former Jodhpur State do not appear to have committed any error in computing the degrees in this manner and, therefore, the appellant's first contention is only fit to be dismissed.
15. Coming to the next point, the appellant's learned advocate has referred to the plaint and the written statement. It has been pointed out by him that in para. 1 of the plaint, it was stated by the plaintiff that the 'nohra', which is the subject of dispute, belonged to defendant 5 Mulchand and that in the written statement all the defendants admitted the recital in this paragraph to be correct. It is urged on this basis that the defendants had themselves admitted that the house belonged to defendant 5 and since he was the only person who had got the sale-deed registered, he should be deemed to be the sole owner of the property and he being related with the pre-emptor within the third degree, the suit should be decreed.
The respondents' advocate on the other hand has also referred to para 4 of the plaint and argued that the above contention of the appellant's advocate is untenable because the plaintiff had himself stated in this paragraph that the property was sold by both defendants 5 and 6. If appears that the pleadings were not drafted with meticulous care. We cannot lose sight of the fact that they were drafted nine years before, in the year 1944, in the village Ladnun which was a Jagir village at that time and the suit was also instituted in the Court of a Thikana for that reason.
The appellant's learned advocate had advanced an argument which was never taken up before. The question whether the property belonged to defendant 5 alone or to defendants 5 and 6 jointly is not a pure question of law. The averments on this point were not clear and the parties never joined issue on this question. On the other hand it appears from the memorandum of appeal which was presented by the plaintiff appellant in the first appellate Court that since the trial Court had dismissed his suit on the ground of invalidity of sale for want of proper registration, it was stated by him in para (2) of the memorandum that defendants 5 and 6, Mulchand and Ganeshmal, were members of a joint Hindu family whose 'karta' was Mulchand and, therefore, the registration was quite valid.
From the judgment of the first appellate Court also it appears that the appellant's contention at that time was that the registration of the deed by Mulchand alone was valid because he had done it in the capacity of manager of the joint family. If the house belonged to Mulchand alone, it was not at all necessary for the appellant to argue that he had executed the sale-deed or got it registered in the capacity of a manager of the joint family. On the other hand it shows that by that time it was not contested by the appellant that the house did not belong to both defendants 5 and 6. At any rate, it was nowhere suggested in clear terms that the name of defendant 6 was mentioned in the sale-deed only to defeat the right of the pre-emptor and that he had no right or interest in the property. A new plea of fact cannot be allowed in Ijlas-i-khas appeal. The contention raised by the appellant's learned advocate is not one of pure fact Claw?) and, therefore, this objection is also dismissed.
16. The last contention of the appellant's advocate, as mentioned above, is that the appellant was entitled to claim pre-emption if he was related even to one of the vendors in the third degree. . In support of his contention, he has referred to the case of -- 'Bishambhar Nath v. Chhotey Lal', ILR (1950) Ail 657 (F). In that case the pre-emptor was related to some of the vendors but not to all in the manner indicated in Section 12(3), Agra Pre-emption Act, 1922. It was held that he could claim preference on the score of relationship with the vendors to whom he was related in respect of the specific share of those particular vendors. It may be pointed out that in that case the vendor to whom the pre-emptor was related had a specified share in the property which was sold. In the case of the property of vendor whose share in the whole lot of sold property is clearly demarcated, it may be possible to pass a decree for pre-emption in respect of that specified property if that particular vendor is found to be related to the pre-emptor within the degrees laid down by the law; but where in a case like the present one, the property of both the vendors was a joint family property, it cannot be said as to which part of the property belongs to the particular vendor. In such a case it is necessary that the pre-emptor should be related to all the vendors in the third degree and if it is not so, his claim for pre-emption cannot be allowed.
17. In our opinion, there is no force in this appeal and it is therefore, dismissed with costs throughout.