MAHABIR PRASAD Vs. CHANDA DEVI

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for pre-empting the sale of a house at Etawah for Rs. 1,200/- by a sale deed dated 29th April, 1968 made by defendant No. 2 in favour of defendant No. 1. The defendant No. 2 is the uncle of the plaintiff. The right of pre-emption was claimed on the basis of a condition contained in a registered award dated 14th July, 1946, whereby the immovable properties of the joint family to which the plaintiff and the second defendant belonged, were partitioned. The condition was in these words. "Agar koi Shaks fariken apne kure ki jaidad farokhat karna chahe to badast hissedar bai kare ba Surat Karne inkar badast gahir bai jaiz hoga."

(2.) THE trial Court held that the award was valid and it contained the said condition, that Yogya Swarup and Kishan Swarup the sons of defendant No. 2, were born after the making of the award and consequently the fact that they were not parties to the reference to arbitration did not vitiate the ward, that it was not necessary to get the award made a rule of court as it was made prior to the coming into force of the Arbitration Act, 1940. However, holding that it was not competent for the arbitrators to incorporate the said condition in the award and that at any rate the condition was only directory and not mandatory, and was vague and did not confer any right to sue for pre-emption, the learned Munsif dismissed the suit on the ground that the condition was not enforceable. THE learned Munsif also held that it could not be said that the first defendant had no notice of the condition in the award as it was made by a registered instrument and she could not, therefore, be a purchaser without notice. It is not necessary to refer to the other findings of the learned Munsif.