CHANDI DEVI Vs. DEOKI NANDAN

JUDGEMENT

(1.) This is a deft.'s appeal in a suit for pre-emption. On 5-2 1949, defts. 2 to 6 sold a house situate within the municipal limits of Shahjahanpur to the appellant Mt. Chandi Devi for Rs. 7000. The suit for pre-emption was filed by Deokinandan, who is a junior member of the joint Hindu family, along with his unoles Kedar Nath & Raja Ram, & it is said that Kedar Nath is the Karta of the family. The plff. heard of this sale & it was claimed on his behalf that immediately on coming to know that the property had been sold he performed the first talab & then took out a sum of Rs. 4000 which he had been informed was the sale price, & went to the house in suit & in the presence of Kanhai, Badhey Shyam, Raja Ram & Goberdhan performed the second talab. He said in his deposition that he had said on the spot : "I had already performed the first demand & that I was the pre-emptor & am performing the second demand & am ready to pay the price & that the witnesses were to bear testimony to the above facts." To the same effect is the evidence of Badhey Shyam & Kanhai, the two persons who went along with him at the time when the second demand was performed. It was not denied in the lower Court that the plff, is a shafi-e-khalit & shafi-e-jar. It was, however, said that the suit must fail as the second demand was not validly performed, the plff. offering, to pay only Rs. 4,000 & not the real price of Rs. 7000. That argument has been repeated before us, though the finding on the point is against the appellant. It has been further argued before us that Eedar Nath & Raja Ram, the two elder members of the family, had refused to purchase the property when it was offered to them & the plff. was, therefore, estopped from claiming pre-emption. Lastly, it has been urged that a junior member of a joint Hindu family has no right to file a suit for pre-emption on behalf of the joint family. The other two points that had been raised in the lower Court have not been pressed before us & we need not, therefore, consider the same.

(2.) As regards the first point, it is true that the plff. was informed, as he has said in his statement in Court, that the sale price was Rs. 4000 & that it was not till two months after the second demand that he came to know, when he got a copy of the sale deed, that the price entered in the sale deed was Rs. 7000. But from that it does not follow that the plff. offered to purchase the property for Rs. 4,000 only & not for the real sale consideration, if the sale consideration was more than Rs. 4000. The plff. stated in his examination in chief that "he had said that he was ready to pay the price." There was no cross examination on the point on behalf of the deft. The demands have to be performed according to the rules of Mohammedan Law & according to this law if a person performing a demand states that he is willing to pay the price the demand is valid, even if he did not know that he had been misinformed about the correct amount of the sale consideration. If on the other hand, the plff. had while performing the demand, said that he would pre-empt the property on payment of Rs. 4000 the second talab might have been defective. In the absence of any cross examination about the statement made in the examination in chief that the plff. had said that he was ready to pay the price, the mere fact that he had been misinformed & at that time he believed that the price was Rs. 4,000 would not invalidate the second demand.

(3.) As regards the second point that Kedar Nath & Baja Bam had refused to purchase the property, in the written statement on behalf of the appellant, it was pleaded that the other members of plff's family knew that the property was going to be sold but they did not show "any willingness to purchase". This does not amount to refusal to purchase. A pre-emptor is not bound to show his willingness, or to go to the vendor & the vendee & warn them that he has a right to pre-empt. He would not be estopped from preempting the property unless the property was offered to him at the price settled & he had refused to purchase the same. On the pleadings, there fore, no question of refusal arises. In a notice given to Rajaram on 8-3-1943, on behalf of the vendee it was said.