RAMESHWAR KASUDHAN Vs. SHEODIN KASUDHAN

JUDGEMENT

(1.) This is an appeal by the plaintiff against the decree of the lower appellate Court by which the plaintiff's suit for pre-emption was dismissed. It appears that on 19th October 1948, a sale deed in respect of anna 0-1-3 and odd share of zamindari in Mauza Mundela Misir was executed by defendant 2, in favour of defendant 1. The sale consideration mentioned in the deed was Rs. 2 500. Subsequently, defendant S, who is the own brother of defendant 2, and also a co-sharer in the property sold, managed to secure a sale deed from defendant 1, in lien of the same consideration, viz., Rs. 3,500. The plaintiff instituted a suit for pre-emption with the allegation that the second transfer executed by defendant I, the vendee under the sale deed of 19th October 1948, in favour of defendant 3, was made without obtaining the necessary permission of the Assistant Collector under Section 24, United Provinces Regulation of Agricultural Credit Act (XIV [14] of 1940) The plaintiff went on to assert that by reason of the provisions of Section 25 of that Act the second sale deed would have the effect in law only of a mortgage and thus it would not adversely affect his right of pre-emption so far as the sale deed dated 19th October 1943, was concerned. The suit was contested only by defendant 3, who inter alia contended that the sale deed in his favour put an end to the right of the plaintiff to claim pre-emption. He claimed to have obtained a re-conveyance of the property to him in enforcement of a preferential right of pre-emption available to him but out of Court. It was claimed that the plaintiff's suit for preemption was consequently not maintainable. The learned Munsif found in favour of the plaintiff so far as the other issues were concerned, but on the issue, whether the plaintiff's claim for preemption could be maintained, he held that defendant 3, having obtained the property in exercise of a right superior to that of the plaintiff, the plaintiff's claim as against him could not stand. In this view of the matter, the suit was dismissed. On appeal, the learned Civil Judge held that the plaintiff had no subsisting right of pre-emption inasmuch as the second sale deed dated 19th February 1944, by defendant l, in favour of defendant 3, was good as a sale deed in the eye of law. In this view of the matter the decree of the Court of first instance was affirmed and the appeal was dismissed.

(2.) The plaintiff has flow come up in second appeal to this Court and learned counsel for the appellant has contended that the Courts below have taken a wrong view of the law in holding that the sale-deed dated 19th February 1944, executed by defendant l in favour of defendant 3, was valid and was not a "voluntary alienation" within the meaning of that expression as given in Section 12 of the Act. On the strength of the provisions of Sections 24 and 25, U. P. Regulation of Agricultural Credit Act, 1940, learned counsel has contended that the sale-deed dated 19th February 1944, would have the effect of only creating a possessory mortgage of the character dealt with by Section 13, Clause (a) of the Act with the result that the proprietary right obtained by defendant 1 from defendant 2 under the sale, deed dated 19th October 1943, would still remain vested in defendant 1. I have heard Mr. Kedar Nath Singh, learned counsel for the respondents. He has contended that in the circumstances of the case the transfer made by defendant 1 in favour of defendant 3 on 19th February 1944, was not really a "voluntary alienation" of "protected land". His contention is that it was an alienation effected by defendant 1 under a sense of necessity inasmuch as defendant 3 bad a right superior to that of the plaintiff and also to that of defendant l to purchase the property. In these circumstances, defendant 1 executed the sale deed in February 1944, and thereby virtually re-conveyed the property not to his vendor but to his vendor's brother, viz., defendant 3, simply to avoid a suit for pre-emption to which he could have no possible defence. Learned, counsel has contended that in these circumstances the second sale-deed, viz., the sale-deed' executed on 19th February 1944, should not be considered to be a "voluntary alienation" in any sense of that term. If that view is correct, so contends the learned counsel, Sections 12, 24 and 25 would have no application with the result that the sale-deed of 19th February 1944, would remain intact and the plaintiff would thus be deprived of his right of pre-emption on the simple ground that he had no subsisting right of pre-emption ' at the date of the decree.

(3.) The relevant provisions of the Act maybe briefly noted here. "Permanent alienation" is defined in Section 2 (9) of the Act :