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2008 DIGILAW 546 (RAJ)

Ghanshyam v. Chand Bihari

2008-02-20

P.B.MAJMUDAR

body2008
Honble MAJMUDAR, J.—This appeal is directed against the judgment and decree passed by Additional District Judge, Jaipur City, Jaipur dated 14.10.1986 in Civil Suit No. 167/80 (old No. 106/79). The appellant herein is the original defendant No. 1 of the said suit. The aforesaid suit was filed by the plaintiffs (respondent No. 1 to 3 herein) against the present appellant as well as the respondent No. 4. The respondent No. 1 to 3 filed the aforesaid suit for pre-emption on the ground that a Haveli bearing Municipal No. 1796 situated at Chowkri Top Khana Desh, Rasta Khutetan, Near Peepla House, Jaipur, was a joint family property. It is also the case of the plaintiffs that the defendant No. 2 (respondent No. 4 herein) filed a suit for partition of the said Haveli against the plaintiffs father Bhagwan Sahay and others in the court of Civil Judge, Jaipur City, Jaipur, wherein a decree for partition was passed on 16.12.1964 and as per the said decree, the house was divided amongst the co-sharers. One of the co-sharer Smt. Bhonri Bai gifted her share to the respondent No. 4 (original defendant No. 2) Chhagan Lal and another co-sharer Smt. Barfi Bai sold her share for Rs. 3000/- to said defendant No. 2 Chhagan Lal and accordingly the defendant No. 2 Chhagan Lal became the owner of the portion of the house belonging to Smt. Bhonri Bai and Smt. Barfi Bai. It is the case of the plaintiffs that portion of the said house was sold by said Chhagan Lal to the present appellant (original defendant No. 1) by way of registered sale deed on 02.09.1975. It is also the case of the plaintiffs that the sale price of Rs. 15,000/- was not genuine one as the property was not worth more than Rs. 5100/-. On such and other grounds, the suit for pre-emption was filed by the plaintiffs (respondent No. 1 to 3 herein). In the said suit, it is prayed that the decree may be passed in favour of the plaintiffs and the possession of the property be given to them by fixing the price of the portion of the house at 5100/- or at a reasonable price, which the court may fix. 2. The suit was resisted by the present appellant (defendant No. 1 in the suit), who is the purchaser of the portion of the said house. 2. The suit was resisted by the present appellant (defendant No. 1 in the suit), who is the purchaser of the portion of the said house. It is the case of the present appellant that the defendant No. 2 Chhagan Lal initially asked the plaintiffs to purchase the portion of the house in question, but the plaintiffs denied the same and, therefore, by their conduct, they waived their right and now they are estopped from claiming the preemption rights. It is the case of the present appellant-defendant No. 1 that since the plaintiffs had no means to purchase the portion of the house, they waived their right of preemption. It is also the say of the defendant No. 1 in the written statement that the sale consideration of Rs. 15000/- is the real consideration. It is also the case of the defendant No. 1 that the suit is time-barred. The defendant No. 1 also took the objection to the effect that the plaint should be rejected under Order 7 Rule 11 CPC as the suit is under-valued. The defendant No. 1 also submitted a separate application under Order 7 Rule 11 CPC. At a subsequent stage, the plaintiffs amended the plaint and put the valuation of the suit at Rs. 15,000/- and paid the additional court fee and the learned Civil Judge thereafter passed an order returning the plaint for presentation to the proper court and ultimately, the plaint was presented before the District Judge on 13.04.1979. The learned trial Judge framed various issues arising out of the pleadings and after considering the oral and documentary evidence on record, by his judgment and decree dated 14.10.1986 decreed the suit. The said judgment and decree is challenged by the present appellant, who was the defendant No. 1 in the suit. 3. Learned Advocate Mr. R.P Garg, appearing for the appellant, vehemently submitted that the trial court has gravely erred in decreeing the suit in favour of the original plaintiffs. It is submitted by Mr. Garg that the plaintiffs were not in a position to purchase the portion of the house in question as they had no means at the relevant time to pay the consideration of Rs. 15,000/-. It is submitted by Mr. Garg that the plaintiffs were not in a position to purchase the portion of the house in question as they had no means at the relevant time to pay the consideration of Rs. 15,000/-. It is further submitted by him that even in sale-deed, there is also a reference that the plaintiffs were asked whether they were willing to purchase the portion of the house in question, but they denied the said offer. Mr. Garg further submitted that since the plaintiffs had no means to pay the requisite court fee, the suit was under-valued at the time of filing of the same and subsequently when the financial condition of the plaintiffs improved, they changed the valuation of the suit and accordingly valuation was corrected to Rs. 15,000/- and additional court fee was paid on the same. Mr. Garg further submitted that at the time when the valuation was corrected and the plaint was presented before the District Court, the same was time barred by that time as it was required to be filed within 1 year and that the suit was accordingly required to be dismissed on the ground of limitation and accordingly, the plaintiffs had waived their right of purchasing the property. It is also submitted by Mr. Garg that the plaintiffs were never in a position to purchase the portion of the house in question and, therefore, they have waived their right and in view of waiver and estoppel, the suit was required to be dismissed. It is also submitted by Mr. Garg that preemption is a very weak right and it was not necessary for seller defendant No. 2 to give notice in writing to the plaintiffs before executing the sale-deed in favour of the defendant No. 1. It is also argued by Mr. Garg that earlier when the property was sold to Chhagan Lal by co-sharer Smt. Barfi Bai, the plaintiffs had not claimed any such right and accordingly, gave up their right of preemption by their conduct and now no such right is available on subsequent sale of the same property and now the plaintiffs are estopped from claiming any right of preemption on subsequent sale. Mr. Mr. Garg submitted that it was held in the earlier proceedings in a partition suit filed by the defendant No. 2 Chhagan Lal, who sold the portion of the house to the present appellant, that the defendant No. 2 Chhagan Lal had no right in the disputed property and when Chhagan Lal purchased the portion of the house from the other co-sharer, the plaintiffs could have very well objected the same and could have asserted the right of preemption, which has not been done. It is also submitted by Mr. Garg that one of the co-sharer in the house in question Smt. Moti Bai entered into an agreement to sale on 10.08.1976 with the appellant and at that time a letter was also written by said Smt. Moti Bai asking the plaintiffs to purchase the property, but the plaintiff No. 1 Chand Bihari refused to buy the same by giving reply on 07.04.1976 and subsequently a registered sale deed was executed by Smt. Moti Bai in favour of the present appellant on 08.05.1983 and possession was also handed over at that time. It is also submitted by Mr. Garg that in view of above, the appellant has also become the owner of the adjoining portion of that very house and, therefore, also the suit of the plaintiffs for preemption is not maintainable. It is also argued by Mr. Garg that the respondent No. 4 Chhagan Lal also sold portion of the house by registered sale deed to appellants son Mahesh and appellants wife Ram Pyari and that both of them by way of registered gift deed dated 03.01.2001 transferred the part of the property in favour of the present appellant and that substantial portion of the house is in possession of the appellant and in view of the subsequent development also, the suit is required to be dismissed. It is also argued by Mr. Garg that the house in question is a commercial premises, wherein the appellant, who is the purchaser of the house, is doing the business of scripturing of Murtis and other articles and since the property is used for commercial purpose, the right of preemption is not available to the plaintiffs. It is also argued by Mr. Garg that the house in question is a commercial premises, wherein the appellant, who is the purchaser of the house, is doing the business of scripturing of Murtis and other articles and since the property is used for commercial purpose, the right of preemption is not available to the plaintiffs. It is also argued by Mr. Garg that in relation of the part of the property which was transferred in favour of his son and wife of the appellant, a preemption suit was filed by the plaintiffs, but the said suit was dismissed, against which a First Appeal was filed bearing No. S.B. Civil First Appeal No. 51/83 before this court and the same was also dismissed for non-prosecution and accordingly, the transfer of the property in question in favour of Mahesh and Ram Pyari has become final and they also accordingly became co-sharers of the property. It is submitted by Mr. Garg that in view of the aforesaid facts and circumstances of the case, the plaintiffs have failed to make out any case for preemption and that since the plaintiffs had no means to purchase the portion of the house, now they cannot claim any preemption right in connection with the suit house. It is also argued by Mr. Garg that the father of the plaintiffs Bhagwan Sahay filed a suit against the defendant No. 2 Chhagan Lal as well as Barfi Bai, Moti Bai and Kamal for injunction and subsequently the said suit was dismissed as having been abated and, therefore, the present suit is not maintainable. 4. Learned Advocate Mr. B.R Agarwal on the other hand submitted that the trial court has rightly appreciated the evidence on record and after appreciation of the evidence on record, the trial court has rightly passed the decree for preemption in favour of the plaintiffs. It is also submitted by Mr. Agarwal that before selling the portion of the house to the defendant No. 1, the defendant No. 2 had never even orally asked the plaintiffs about their willingness to purchase the portion of the house in question. It is submitted by Mr. Agarwal that since initially according to the plaintiffs, the sale consideration of the portion of the house was on higher side, the plaintiffs had put the valuation at Rs. 5100/-, which was subsequently corrected and the plaintiffs accepted the consideration at Rs. It is submitted by Mr. Agarwal that since initially according to the plaintiffs, the sale consideration of the portion of the house was on higher side, the plaintiffs had put the valuation at Rs. 5100/-, which was subsequently corrected and the plaintiffs accepted the consideration at Rs. 15000/- and for which additional court fee was also paid. It is submitted that since the original suit was filed within limitation, it cannot be said that the suit is barred by limitation, it is aiso submitted by Mr. AgarwaJ that if the offer was made at the relevant time by the defendant No. 2, the plaintiffs were willing to purchase the portion of the house in question. It is also submitted that the trial court has rightly decreed the suit in favour of the plaintiffs. 5. I have heard both the learned Advocates at length and gone through the oral and documentary evidence on record and also gone through the impugned judgment and decree of the trial court. 6. So far as oral evidence is concerned, the plaintiff No. 1 has examined himself as RW. 1. He has stated that the defendant No. 2 Chhagan Lal had filed a suit for partition of the house in the year 1964. In the said suit, Smt. Bhonri Bai, Barfi Bai, Moti Bai and the father of the plaintiffs were given equal share and it was held that the defendant No. 2 had no share in the suit property. The said witness has further deposed that Bhonri Bai had transferred her share by way of gift to defendant No. 2 Chhagan Lal and Barfi Bai has sold her share in the house to him for Rs. 3000/-. The defendant No. 2 Chhagan Lal ultimately sold the said property by two separate sale deeds to son and wife of the defendant No. 1 for Rs. 15000/- each. In the examination in chief, this witness has stated that the defendant No. 2 had not ascertained the wish of the plaintiffs or their father as to whether they were willing to purchase the portion of the property in question. In his evidence, this witness has further stated that he is willing to purchase the house. He has further stated that the suit was filed after about 8 months from the date of sale. The said witness has further stated that at the relevant time, he was having Rs. In his evidence, this witness has further stated that he is willing to purchase the house. He has further stated that the suit was filed after about 8 months from the date of sale. The said witness has further stated that at the relevant time, he was having Rs. 30000/-, which he received in connection with provident fund of his father. He further stated that he has received the said amount after 6 months since the death of his father. He has also stated that his father died on 06.06.1975 and that he gathered the knowledge about the sale transaction regarding property in question after one month of such sale. In his examination in chief this witness has stated that his father has also given notice regarding his first right to purchase the portion of the house. The said witness has clearly stated that he as well as his father knew within one month from the sale transaction that the property is sold to defendant No. 1. The said witness has stated that the suit was fifed on 31.08.1976, i.e. after about 8 months from the date of transaction. He has stated that he is not aware as to why he took 8 months time in filing of the suit, though subsequently he stated that he was taking advice of the lawyers. He has denied the suggestion that the defendant No. 1 has spend money to the tune of Rs. 10000-15000 in renovation of the house after purchase. The said witness in his cross-examination has admitted that he and his brothers got Rs. 10000/- each towards RF. amount of his father and that his father died in the year 1976. 7. From the other side, the defendant No. 1 Ghanshyam has examined himself as D.W. 1. In his evidence he has stated that before purchasing the property, an agreement was executed between him and the defendant No. 2 on 01.02.1975. At that time, he had asked the father of the plaintiffs as to whether he is willing to purchase the property, but the father of the plaintiffs Bhagwan Sahay told him that he is not having adequate money for such purchase and he has stated that he has no objection if he purchases the property and on that basis he purchased the property for Rs. 30000/- by two separate sale deeds of Rs. 15000/- each. 30000/- by two separate sale deeds of Rs. 15000/- each. He has stated that at that time Bhagwan Sahay had tiled a suit on 06.02.1975 tor injunction, but the said suit was withdrawn later on. 8. The defendant No. 2 Chhagan Lal also gave oral evidence before the court as D.W. 2, wherein he has stated that he has asked the father of the plaintiffs Bhagwan Sahay whether he is willing to purchase the property, but he had not given any answer. This is the only oral evidence on record. 9. The point which requires determination in this appeal is whether the plaintiffs have proved their pre-emptory right in connection with the purchase of the suit property. In this connection the following points are not in dispute. So far as the suit house is concerned, originally it belonged to one Ram Kumar. Said Ram Kumar was having two sons namely, Chhagan Lal (defendant No. 2 herein) and Bhagwan Sahay (father of the plaintiffs) and two daughters, namely Moti Bai and Barfi Bai. Said Chhagan Lal had filed a suit for partition and separate share. A decree was passed in the said suit on 16.12.1964 and in that decree, the defendant No. 2 was not given any share in the house in dispute and he was given share in the other property in the said partition suit. The mother of the defendant No. 2 Bhonri Bai as well as one Barfi Bai got share in the said house and both of them transferred their interest in the said house to the defendant No. 2 Chhagan Lal. As per the record, Bhonri Bai transferred her share in the suit house to the defendant No. 2 by way of gift and Barfi Bai sold her share in the house to defendant No. 2 for Rs. 3000/- and accordingly, the defendant No. 2 became the owner of the aforesaid portion of the house, which belonged to Bhonri Bai and Barfi Bai and subsequently, defendant No. 2 transferred his portion by way of sale in favour of the defendant No. 1. It has come in evidence that the father of the plaintiffs had never tried to assert his right at the relevant time when Bhonri Bai and Barfi Bai transferred their share in the house in favour of the defendant No. 2. It has come in evidence that the father of the plaintiffs had never tried to assert his right at the relevant time when Bhonri Bai and Barfi Bai transferred their share in the house in favour of the defendant No. 2. Considering the oral and documentary evidence on record, it is clear that at the relevant time the plaintiffs, i.e. sons of Bhagwan Sahay, received Rs. 10000/- each towards PR account of Bhagwan Sahay. It is not in dispute that the defendant No. 2 had no right, title or interest in the suit house and he purchased one portion from Smt. Barfi Bai and the other one he received by gift from Smt. Bhonri Bai. The said transaction took place long back and at that time the plaintiffs father had never tried to enforce his right of preemption and even subsequently there is nothing on record to show that the plaintiffs father had ever tried to show his willingness for purchasing the portion of the house when it was sold to the defendant No. 2 and ultimately after the death of the father of the plaintiffs, they have subsequently filed this suit. In the background of this evidence, it is required to be considered whether the plaintiffs had given up their rights of preemption and whether sufficient financial recourses were available with the plaintiffs at the time when the property was sold to defendant No. 1. As stated earlier, the plaintiffs father had never asserted his right and never objected the sale in favour of the defendant No. 2, who had admittedly no right or share in the suit property and he purchased the share of Barfi Bai and got the share of Bhonri Bai by way of gift. Even on the subsequent sale by the defendant No. 2, there is nothing on record to show that the plaintiffs father has ever shown willingness to purchase the portion of the house in question. It is true that originally the suit was filed within limitation, but even though the defendant No. 1 was put in possession for about 8 months and at that time the father of the plaintiffs was alive, he had never tried to raise any dispute in connection with the same. It is true that originally the suit was filed within limitation, but even though the defendant No. 1 was put in possession for about 8 months and at that time the father of the plaintiffs was alive, he had never tried to raise any dispute in connection with the same. Considering the fact that even in the sale deed there is a recital that offer was made to Bhagwan Sahay to purchase the portion of the house, but he refused the offer, it would show that the plaintiffs father had limited financial resources and it can be presumed from the evidence that he was not willing to purchase the portion of the house because the defendant No. 2 wanted to sell the house for a substantial amount of Rs. 15,000/- each for two portions. Considering the said aspect, I find considerable force in the argument of the learned counsel for the appellant Mr. Garg that the plaintiffs father earlier filed suit for injunction with fixed court fee as he was not having sufficient amount. Apart from that, it has come in evidence that the plaintiffs were aware about the sale transaction and even the plaintiffs father was also aware about the same since one month from such transaction that the property is sold for Rs. 15,000/- yet ultimately the suit was filed after a long time and even the suit was under-valued with an object to see that the plaintiffs are not required to pay large amount towards court fee and subsequently even the valuation was enhanced by amending the plaint and paying additional court fee on that basis, which was done after a considerable time from filing of the original suit. In his evidence, the plaintiff No. 1 has clearly stated that each of the plaintiff got Rs. 10,000/- towards the provident fund, which amount they received after the death of their father. From the evidence, it is, therefore, clear that at the relevant time the plaintiffs were not having sufficient funds even to pay requisite court fees and subsequently when their financial condition improved, the plaint was amended and appropriate court fee was paid. Considering the totality of the evidence on record, in my view, it seems that the plaintiffs were not willing to purchase the portion of the house in question for want of sufficient funds. Considering the totality of the evidence on record, in my view, it seems that the plaintiffs were not willing to purchase the portion of the house in question for want of sufficient funds. Not only that, even the plaintiffs father during his lifetime had never tried to enforce his right of preemption at the time when the defendant No. 2 Chhagan Lal purchased the portion of the house. Considering the said aspect of the matter, it can be said that the plaintiffs were estopped by their conduct from enforcing the right of preemption. 10. Learned counsel for the appellant Mr. Garg has relied upon various judgment in order to establish his case. He has relied on the case of Indira Bai vs. Nand Kishore reported in AIR 1991 SC 1055 , wherein it has been held by the Supreme Court that right of preemption is a weak right. Failure to serve notice as required under the Act does not render the sale void. In the aforesaid judgment, it has been held by the Supreme Court in para 5 and 6 as under: "5. Exception to this universal rule or its non-availability is not due to absence of any provision in the Act excluding its operation but welfare of society or social and general well-being. Protection was, consequently, sought not on the rationale adopted by the High Court that in the absence of notice under Section 8 of the Act estoppel could not could arise but under cover of public policy. Reliance was placed on Shalimar Tar Products v. H.C. Sharma, AIR 1988 SC 145 , a decision on waiver, and Equitable Life Assurance Society of the United States v. Reed, 1914 Appeal Cases 587, which laid down that there could be no estoppel against statute. Equity usually, follows law. Therefore that which is statutorily illegal and void cannot be enforced by resorting to the rule of estoppel. Such extension of rule may be against public policy. What then is the nature of right conferred by Section 9 of the Act? Equity usually, follows law. Therefore that which is statutorily illegal and void cannot be enforced by resorting to the rule of estoppel. Such extension of rule may be against public policy. What then is the nature of right conferred by Section 9 of the Act? In Bishen Singh v. Khazan Singh, AIR 1958 SC 838 this court while approving the classic judgment of Mahmood J., in Gobind Dayal vs. Inayatullah, (1885) ILR 7 All 775 (FB), that the right of pre-emption was simply a right of substitution observed that, Courts have not looked upon this right with great favour, presumably, for the reason that is operated as a clog on the right of the owner to alienate his property. In Radha Kishan vs. Shridhar, AIR 1960 SC 1368 , this Court again while repelling the claim that the vendor and vendee by accepting price and transferring possession without registration of sale deed adopted subterfuge to defeat the right of pre-emption observed that, there were no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means. Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy. The distinction between validity and illegality or the transaction being void is clear and well known. The former can be waived by express or implied agreement or conduct. But not the latter. The provision in the Act requiring a vendor to serve the notice on persons having right of pre-emption is condition of validity of transfer, and therefore, a pre-emptor could waive it. Failure to serve notice as required under the Act does not render the sale made by vendor in favour of vendee ultra vires. The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter then it may be difficult to put estoppal as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct. The Act does not private that in case no notice is given the transaction shall be void. The objective is to intimate the pre-emptor who may be interested in getting himself substituted. The Act does not debar the pre-emptor from giving up this right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot, therefore, be said to involve any interest of community or public welfare so as to be in mischief of public policy. 6. Even otherwise on facts found that the respondent knew of the sale deed, assisted the appellant in raising the construction and after the construction was completed in the month of June he gave the notice in month of July for exercise of the right and filed the suit in January would itself demonstrate that the conduct of the respondent was inequitable and the Courts in this country which are primarily the Courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appellant and invoke a right which has been called a weak and inequitable right." 11. Learned counsel for the appellant has also relied on the decision of the learned Single Judge of this court in the case of Bhanwar Lal vs. Shanker Lal & Ors. reported in RLR 2000(2) 374, wherein the learned Single Judge has held that where oral consent has been given by plaintiff for purchase of suit property by defendant No. 1 from defendant No. 2, the plaintiff waived his right as pre-emptor and no notice under Section 8 of the Act was required to be served on the plaintiff and the plaintiff could not re-assert right of preemption by instituting the suit. Though in the instant case, even if it is held that the plaintiffs father never gave consent, the question which requires consideration is whether from the conduct on the side of the plaintiffs, a decree can be passed by setting aside the sale transaction by upholding the right of preemption. Facts and circumstances of the case narrated above, clearly shows that the plaintiffs father had never objected at the relevant time when the portion of the property in question was purchased by the defendant No. 2, who admittedly had no share in the suit house at the relevant time. The conduct of the plaintiffs and their father would be relevant for finding out whether the plaintiffs had any intention to purchase the portion of the house in question or whether he had sufficient money for the same or whether he was not interested in purchasing this portion. The fact that the plaintiffs failed to prove that at the relevant time sufficient fund was available with them to purchase this portion of the house and the fact that they filed the suit, though within limitation period, but after 8 months from the sale transaction, even though they were aware about the sale transaction in question and the fact that the defendant No. 1 was residing in the portion of the house in question and put some expenditure for improving the same as per the say of the defendant No. 1 in his evidence and even subsequently under-valued the said suit, wherein according to them, the real price of the portion of the house should have been only Rs. 5100/- and not Rs. 15000/-, would indicate that the plaintiffs were not in position to purchase the property in question for Rs. 15000/- and subsequently after receiving some amount after the death of their father, the plaintiffs put proper valuation and accepted the valuation of the house at Rs. 15000/-. Considering the aforesaid scenario and background of the matter, in my view, the plaintiffs can be said to have waived their right as preemptor and it was not necessary for the defendants to give any written notice to the plaintiffs asking from them whether they were willing to purchase the property in question. The facts and circumstances of the case itself speaks that the plaintiffs had impliedly waived their right. 12. Learned counsel for the respondent Mr. The facts and circumstances of the case itself speaks that the plaintiffs had impliedly waived their right. 12. Learned counsel for the respondent Mr. Garg has further relied upon the decision of the learned Single Judge of this court in the case of Smt. Satya Narayani Alias Jhamli Devi vs. Hanuman Prasad & Smt. Asha Devi reported in 1999(3) WLC (Raj.) 242, wherein the learned Single Judge held that when the plaintiff has admitted that offer of sale was made by the defendant, but she was not ready and willing to purchase the property, the plaintiff deemed to have surrendered her right and in such cases, Section 8 of the Rajasthan Preemption Act, 1966 is not attracted. Of course, in my view, this judgment is not relevant in the present case as the plaintiffs have never admitted that the offer of sale was made and that they were not ready to purchase the property in question. However, the plaintiffs willingness is to be considered from the surrounding circumstances and evidence on record and in this case, looking to the facts and circumstances of the case, it is clear that the plaintiffs had impliedly abandoned or waived the right to purchase the property in question. Learned counsel for the appellant also relied upon the decision in the case of Thakur Mad ho Singh & Anr. vs. Lt. James R.R. Skinner & Anr. reported in AIR 1941 Lahore 433, wherein the Full Bench of the Lahore High Court has taken the view interpreting the Punjab Pre-emption Act that the vendee can defeat the right of the pre-emptor by improving his status at any time before the passing of the decree in the preemption suit and that the date of sale is not the only crucial date for the purpose of determining the right of the preemptor to oust the vendee. Learned counsel for the appellant also relied upon the decision of the Kerala High Court in the case of M/s. Mooken Devassy Ouseph and sons vs. Rajappan Pillai reported in AIR 1984 Kerala 91, wherein it has been held by the Kerala High Court that when the plaint itself shows that the court cannot entertain it for want of jurisdiction, it cannot be said to have been filed with due care and attention. Relying on this judgment, learned counsel for the appellant argued that when the plaintiff has deliberately put the valuation less even though admittedly the transaction was of Rs. 15000/-, the suit subsequently filed before the competent court, can be said to be beyond limitation as after return of the plaint, the suit was filed admittedly after a considerable period and not within one year, which is prescribed period of limitation. 13. Learned counsel for the appellant has made reference of the decision of this court in the case of Smt. Rukmani Devi vs. Prabhu Narayan & Ors. decided on 25.05.2007, wherein the learned Single Judge of this court has held as under: "It is also well settled that rule of estoppel applies in such cases. This Court from the evidence on record finds that the plaintiff had full knowledge of the sale transaction in question and he in fact actively participated in the same and gave up his right of preemption after allowing the registration of the sale deed in favour of defendant No. 1 without any demur or objection raised during the contemporary period. He was ready and willing to purchase the suit property only for the sum of Rs. 11,000/- and the bare perusal of the plaint shows that he kept his right of preemption hanging in balance and left to the court that if the court comes to the conclusion that the real sale consideration was Rs. 14,999/- and not Rs. 11,000/- then also he would purchase the suit property at Rs. 14,999/-. The Scheme of the Act shows that once the pre-emptor is put to the notice, he has to exercise this right of preemption within two months by paying the price for which the transaction in question is going to take place. DW. 4 Shanker Lal, vendor himself has stated before the learned trial court that he informed the plaintiff about the said transaction and he in fact he was pursuing the plaintiff for the last one year to purchase the suit property but he refused to do so and adopted a dilly-dallying approach towards the same. Thereafter when the transaction with defendant No. 1 also was finalized at Rs. Thereafter when the transaction with defendant No. 1 also was finalized at Rs. 14,999/- the plaintiff acquiesced in the matter and actively participated in the said sale transaction and there mere fact that he was present at the time of registration of the sale deed in the Collectorate, which fact has never been disputed and denied by him, shows that he had no objection to the said sale taking place in favour of defendant No. 1. In view of the legal position that the right of preemptor if he waives or gives up his right without raising any objection to the sale taking place in favour of third party, the court should not allow substitution in the sale deed at the instance of such plaintiff pre-emptor who has already given up his right." 14. On behalf of the respondents-plaintiffs, learned counsel Mr. Agarwal had made reference to the decision of the Division Bench of this court in the case of Gouri Shanker vs. Madan Mohan & Ors. reported in RLR 1994(1) 33, wherein it is held that when the plaintiff is co-sharer with the vendor in the house, as a co-sharer, he is entitled to preemption under Section 6 of the Rajasthan Preemption Act, 1966. Relying on this decision, learned counsel for the respondents-plaintiffs submitted that when the defendant No. 2 purchased the house, the plaintiffs were co-sharers with him and, therefore, they can certainly challenge the subsequent transaction made by the defendant No. 2 and his right of preemption is not lost. It is no doubt true that the plaintiff can certainly challenge the subsequent transaction made by the defendant No. 2 in favour of defendant No. 1, however, as pointed out earlier, from the facts and circumstances of the case and evidence on record, It can certainly be inferred that such rights were abandoned by the plaintiffs and plaintiffs had waived right as the father of the plaintiffs had never tried to assert such right. Not only that, after a considerable period, the suit was filed, which also was filed in a wrong court and was under-valued and ultimately the valuation was enhanced and the plaint was presented before proper court. Not only that, after a considerable period, the suit was filed, which also was filed in a wrong court and was under-valued and ultimately the valuation was enhanced and the plaint was presented before proper court. This aspect of the matter is required to be considered in order to find out whether the plaintiffs had any genuine interest in connection with the purchase of the portion of the house in question and whether they were having sufficient means to purchase the same. In the light of this evidence, it is required to be appreciated whether the plaintiffs can be said to have waived and abandoned their right and whether now he is estopped from challenging the transaction in question. In the light of this, it is also required to be noted that at the relevant time when the respondent No. 2 purchased the portion of the house, the plaintiffs father, who was alive at that time, very well knew about the said transaction, but he had not shown any willingness for purchasing the house in question at that time. Under these circumstances, the oral evidence of the defendants is required to be accepted to the effect that the offer was made to the plaintiffs father, but he had declined to purchase the portion of the house in question and the said aspect is also mentioned in the registered document, i.e. the sale deed. It is more probable to accept the say of the defendants that the plaintiffs had no money to purchase this portion and even in the past also when the defendant No. 2 purchased the same property, because of the poor financial condition, the father of the plaintiffs might not have shown his willingness to purchase the portion of the house and never tried to enforce his right, though as stated earlier, it would not mean that he cannot challenge the subsequent transaction. However, this aspect is required to be considered on the basis of evidence and circumstances of the case. 15. Learned counsel for the respondents-plaintiffs has also relied upon the decision of the Allahabad High Court in the case of Mangi Ram vs. Jyoti Prasad reported in 1977 All. However, this aspect is required to be considered on the basis of evidence and circumstances of the case. 15. Learned counsel for the respondents-plaintiffs has also relied upon the decision of the Allahabad High Court in the case of Mangi Ram vs. Jyoti Prasad reported in 1977 All. L.J. 441, wherein it has been held by the Allahabad High Court that a co-owners right to preemption cannot be said to be lost merely because an earlier sale deed in favour of a stranger by another co-owner is not challenged by the other co-owner. It is, however, required to be noted that the defendant No. 2 was never a co-owner when he purchased the portion as in the earlier partition suit, he was not given any share in the suit house and therefore, this decision, in my view, has no application in the facts of the present case. 16. Learned counsel for the respondent-plaintiffs has also relied upon the decision of the Supreme Court in the case of Prema (dead) through LRs vs. Surat Singh & Ors. reported in 2003(2) WLC (SC) Cri. 97 : (2003) 3 SCC 46 , wherein while considering the provisions of Section 21-A and 28-A of the Punjab Pre- emption Act, 1913, the Honble Supreme Court has held in para 7 and 8 as under: "7. It would be appropriate to note that in the Act, Section 28-A was inserted by the Punjab Pre-emption (Amendment) Act, 1928 and Section 21-A was inserted by the Punjab Pre-emption (Amendment) Act, 1944. Section 21-A of the Act is in the following terms : "21-A. Any improvement, otherwise than through inheritance or succession, made, in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor plaintiff in such suit." 8. A plain reading of the provision, extracted above, would show that it nullifies the effect of acquisition of any right by the defendant in a pre-emption suit for the purpose of improvement of his status pendente lite, except by way of inheritance or succession. A plain reading of the provision, extracted above, would show that it nullifies the effect of acquisition of any right by the defendant in a pre-emption suit for the purpose of improvement of his status pendente lite, except by way of inheritance or succession. On the clear language of the provision, it is difficult to accede to the contention that Section 21-A of the Act would be attracted only in a case where one of the co-owners as a defendant in a pre-emption suit loses his status by virtue of being a co-vendee with a stranger and subsequently improves his status by acquiring pendente lite the right of the stranger vendee." 17. Learned counsel for the respondents-plaintiffs has also relied upon the judgment in the case of Vijay Kumar Rampal & Ors. vs. Diwan Devi & Ors. reported in AIR 1985 SC 1669 , wherein while considering Section 14 of the Limitation Act, it has been held by the Supreme Court that error in valuing the suit or wrong computation of court fee cannot be grounds for denying benefit of Section 14 to plaintiff. The said judgment is relied upon by the learned counsel for the respondents in order to substantiate his argument that when the earlier suit was filed, wherein there was an error in valuation of the suit property, if proper valuation is made subsequently, the subsequent suit cannot be dismissed. However, in the present case, circumstances existing in the case are required to be taken into account to find out whether the plaintiffs had waived their right or whether estoppel is applicable against them. The said aspect is required to be considered taking into account the surrounding circumstances and the fact that even though the plaintiffs knew that the sale transaction is of Rs. 15000/- as per the registered sale deed, they filed the suit by valuing the property at Rs. 5100/- and subsequently accepted the valuation at Rs. 15000/- and for which they subsequently amended the plaint also and paid additional court fee. The said conduct of the plaintiffs is required to be considered in view of the submissions of the other side that the plaintiffs were not having sufficient amount to purchase the house at the relevant time and that they were not having Rs. 15000/- and for which they subsequently amended the plaint also and paid additional court fee. The said conduct of the plaintiffs is required to be considered in view of the submissions of the other side that the plaintiffs were not having sufficient amount to purchase the house at the relevant time and that they were not having Rs. 15000/- sale consideration at that time nor were they having sufficient money to pay the proper court fee and, therefore, impliedly they waived their first right to purchase the property. 18. Considering the evidence on record as a whole, both the oral and documentary, and considering the factual background of the matter that in the past also, the defendant No. 2, who was a stranger to the family, purchased another portion of the house and at that time, the plaintiffs father never tried to assert his right in the matter of purchasing that portion and subsequently also, during his lifetime, he never tried to enforce his right of pre-emption nor wrote any letter during his lifetime to the effect that he was willing to purchase the property in question. In my view, it can safely be said that the plaintiffs had no sufficient means at the relevant time to purchase the house in question and by their conduct, they waived their right. Therefore, the trial Judge has committed an error in holding that no written notice was given by the defendants to the plaintiffs asking their willingness about the purchase of the house. In view of the law laid down by the Supreme Court, the defendants were not required to serve any notice to the plaintiff in writing and the question whether the plaintiffs had genuine desire to purchase the property, can be considered from the circumstances of the case and evidence on record. As pointed out earlier, in the instant case even though the property was sold for Rs. 15000/- by registered sale deed, the plaintiffs had never shown their willingness to purchase the same as they were not having sufficient means to purchase the same. As pointed out earlier, in the instant case even though the property was sold for Rs. 15000/- by registered sale deed, the plaintiffs had never shown their willingness to purchase the same as they were not having sufficient means to purchase the same. In a given case, as per the Preemption Act, the plaintiff can legitimately point out that the property is sold for a higher amount and the actual value of the property should be less, but in the instant case, the plaintiffs have themselves subsequently accepted the said sale consideration by putting the value of the property at Rs. 15000/- and correcting the valuation of the suit. Considering the aforesaid aspect, in my view, the trial court has erred in decreeing the suit filed by the respondent-plaintiffs. 19. Considering the evidence on record and the case law cited at the bar, in my view, the respondents-original plaintiffs are not entitled to get the decree and the trial court has, therefore, committed an error in passing the decree in favour of the plaintiffs. The suit of the plaintiffs is, therefore, dismissed by reversing the decree of the trial court and this appeal is accordingly allowed with no order as to costs.