Dukh Haran Nate v. Maha Prasad — 1940 DIGILAW 117 (ALL)

JUDGMENT Zia-ul-Hasan, J. - This second appeal against a decree of the learned Civil Judge of Gonda raises an interesting question of the law of pre-emption as applicable to this province. 2. On the 17th July, 1935, Munna and others sold a three pies share in village Dubawal and two groves in village Dalpatpur to Maha Prasad, the. present appellant, for an ostensible consideration of Rs. 800. Two rival suits for pre-emption were brought, one by Dukh. Haxai Nath respondent No. 1 and the other by Mathura Prasad, respondent No. 2. Both the plaintiffs alleged that the sale consideration as entered in the sale-deed was fictitious and that the real sale consideration was Rs. 260. 3. The vendee's Defence in each case was that the plaintiff not being a co-sharer in the village of Dalpatpur was not entitled to sue for pre-emption of the Dubawal property only. 4. The learned Munsif in whose Court the suits were filed, held that the ostensible sale consideration was fictitious and that Rs. 335 was the market value of the property sold. As between the rival portentous he held that Dukh Haran Nath's right was superior to Mathura Prasad's. Both the suits were however, dismissed on the ground that only part of the property sold could not be pre-empted. Mathura Prasad submitted to the decree of the trial Court but Dukh Haran Nath appealed against it. In appeal before the learned Civil Judge, Dukh Haran Nath offered to pay the entire sum of Rs. 335 which had been held by the trial Court to be the market value of both properties sold, for the Dubawal property and on this otter the learned Civil Judge decreed Dukh Haran Nath's suit on condition of payment of that amount. The vendee brings this appeal and contends that pre-emption of part only of the property sold should not have been allowed in any case. 5. The point so far as I am aware, never arose in any case before and therefore Ihsard the learned Counsel for the parties in this case at length but inspite of the able arguments put forward on behalf of the appellant, I am unable to hold that the decree of the learned Civil Judge is illegal or improper. 6. 5. The point so far as I am aware, never arose in any case before and therefore Ihsard the learned Counsel for the parties in this case at length but inspite of the able arguments put forward on behalf of the appellant, I am unable to hold that the decree of the learned Civil Judge is illegal or improper. 6. The learned Counsel for the appellant relies on cases of-Abdul Hafiz v. Minohar Lal 1939 OWN 736; Baijnath v. Pandit Mahabir Prasad 1938 OA I and Birendra Bikram Singh v. Brij Mohan Pande (1934) 11 OWN 843 (P.C.). 7. In the first of these cases a suit for pre-emption was dismissed by reason of the fact that past mesne profits were sold along with immoveable property and relying on the decision of their Lordships of the Judicial Committee in Birendra Bikram Singh's case (3) it was held that past mesne profits are not permutable under the Oudh Laws Act. 8. The second case also rests on the decision of their Lordships of the Judicial Committee in Birendra Bikram Singh's case (3) and in it a suit for pre-emption was dismissed on the ground that no apportionment of price could be made under the Oudh Laws Act for the pre-empted portion of the property sold. 9. The facts of Birendra Bikram Singh's case (3) were that one hundred and sixty-three villages forming an entire taluqdari mohal were sold by one sale deed for a consideration of Rs. 5,50,000. Two suits for pre-emption were brought each in respect of one of the villages sold and each plaintiff offered to pay a proportionate amount of the sale consideration. Their Lordships of the Judicial Committee after considering the provisions of the Oudh Laws Act relating to pre-emption came to the conclusion that there is no provision in the Act for tendering part of the price by a pre-emptor or for pre-empting part of the property proposed to be sold. It was because of this pronouncement of their Lordships of the Judicial Committee that the Oudh Laws Act was amended in 1939 by Local Act XV of that year by which provision has been made for pre-emption of part only of the property sold or foreclosed on payment of a proportionate amount of the sale price or amount due on, the mortgage. It was however conceded on behalf of the respondent that the present case is not governed by the amending Act of 1939 as it has no retrospective effect. I have therefore to see whether the decree of the learned Judge of the lower appellate Court goes against the decision of their Lordships of the Judicial Committee. 10. After having given anxious consideration to the point, I have come to the conclusion that the decision of the learned Judge of the Court below is not against the pronouncement of their Lordships. As stated above, their Lordships were considering a case in which two pre-emptor were claiming to pre-empt two villages out of one hundred and sixty three sold by a single transaction and were offering to pay a proportionate amount of the sale consideration and what their Lordships held was that such a suit is not contemplated by Chapter II part III of the Oudh Laws Act dealing with pre-emption. The case of a pre-emptor who was offering to pay the entire sale consideration for only part of the property sold was not before their Lordships and was not considered by them. In my opinion it cannot be said that their Lordships meant to lay down that pre-emption of a part of the property sold cannot be allowed in any case whatever. Their Lordships' pronouncement was to my mind no more than that pre-emption of part of the property by apportionment of the sale consideration cannot be allowed under the Oudh Laws Act. This seems to be clear from the following remark of their Lord ships- These considerations in their Lordships opinion are conclusive as showing that the claims of the plaintiffs as stated in their plaints ate not within the above mentioned Act and are therefore not maintainable. 11. The claims of the plaintiffs in that case as stated in their plaints were for pre-emption of parts of the property by payment of proportionate amounts of the sale consideration. In the present case the plaintiff-pre-emptor does not want an apportionment of the sale price but offers to pay the entire sale consideration for that part of the property only to which he has a right of pre-emption. In the present case the plaintiff-pre-emptor does not want an apportionment of the sale price but offers to pay the entire sale consideration for that part of the property only to which he has a right of pre-emption. The following passage from their Lordships judgment, in fact, seems to me to show that if a pre-emptor should choose to pay the entire sale price, his claim for pre-emption of part of the property might be brought under the provisions of the Oudh Laws Act- The-plaintiffs in each suit claimed to pre-empt one of the said villages only. It would be absurd to suggest that they would be bound to tender the whole of the price, viz., Rs, 5.50,000 which was the price at which the vendor was willing to sell, and yet there is no provision in the Act which would enable the plaintiffs to tender the amounts at which the plaintiffs valued the two villages respectively as stated in their plaints or any amount other than the said Rs 5,50,000. 12. This shows to my mind that in their Lordships opinion if each of the plaintiffs had offered to pay Rs. 5,50,000 (incredible as it may appear on the face of it) for the village pre-empted by him, his suit could possibly have been brought under the provisions of the Act. 13. I am therefore of opinion that Birendra Bikram Singh's case(3) is no bar to allowing respondent No. 1 to pre-empt the Dubawal property only on payment- of the amount that has been found to be the value of both the properties sold. 14. There is yet another aspect of the matter and that is that to decree Dukh Haran Nath's suit on payment of the entire amount would not only be equitable but also in consonance with the spirit of the law of preemption and the practice followed in this province before Birendra Bikram Singh's case(3) was decided by their Lordships of the Privy Council. In the case of Baijnath v. Mahahir Prasad referred to above the learned Judges who decided the case referring to the provisions of the Oudh Laws Act as they stood before the recent amendment remarked.- We venture to think that the Legislature in enacting these provisions did not take into consideration the case of a composite sale deed like the one before us in which several distinct properties are sold together for a lump price. The view which has hitherto prevailed in this province that in such a case if the plaintiff is entitled to pre-empt only part of the property sold, he should be given a decree for pre-emption of that part on payment of the proportionate price, is no doubt a most equitable one. We are conscious that the effect of our decision in the present case would be to debar many persons from exercising their right of pre-emption, or even, as the learned counsel for the appellant put it, practically to nullify the right of pre-emption in those cases in which several properties are sold together, yet we think that this consideration cannot afford any justification for our circumventing the provisions of the statute as authoritatively construed by their Lordships of the Judicial Committee. 15. That the policy of the Legislature has been to deal with claims for pre-emption liberally appears from the facts that they amended the law of pre-emption so as to clearly provide for pre-emption of part of the property sold and this policy is undoubtedly in consonce with the principle underlying the law of preemption namely, to exclude: strangers so far as possible. 16. I am therefore of opinion that the decree of the learned Judge of the Court below is just and proper. The appeal is therefore dismissed with costs.