LAKSHMI DEVI Vs. RAM CHANDRA AGARWAL AND OTHERS

JUDGEMENT

(1.) This is a defendants second appeal in a suit for pre-emption of the sale of a house situate in Mohalla Ali Nagar patti Zanoobi at Gorakhpur made by a deed dated 29th April, 1953 of which registration was completed on 8th May, 1953.

(2.) The un-disputed facts are that one Narain Dass died leaving him surviving three sons, namely, the plaintiff Ram Chandra Agarwal, defendant No. 2 Mahadeo Das and defendant No. 3 Radhey Shyam, as also widow Smt. Lakhpat Bibi, who was originally impleaded as defendant No. 4 but whose name was struck off on her death during the pendency of the suit; and that the family held ancestral property in the nature of houses and Zamindari etc., including the house in suit. The plaintiff pleaded that there was a partition in the joint family of the parties after the death of Narain Dass that Smt. Lakhpat Bibi surrendered l/4th share and relinquished it in favour of sons with the result that the plaintiff and defendant Nos. 2 and 3 became owners of a l/3rd share each in the ancestral property; that there was an ancient custom of pre-emption in Mohalla Ali Nagar according to which a co-sharer had a right to preempt the sale of property by the other cosharers to strangers, that defendants Nos. 2, 3 and 4 executed a sale-deed dated 29th April, 1953 in favour of the first defendant Smt. Laxmi Devi, the appellant who has since died during the pendency of the appeal in this Court, and is now represented by her heirs and legal representatives; that she was the wife of defendant No. 3 and 3/4th share of the house in suit was transferred to her by defendants Nos. 2, 3 and 4 although defendants Nos. 2 and 3 alone had together a ⅔rd share only in the house, Smt. Lpkhpat Bibi, the fourth defendant having had no share; that though the consideration for the sale shown in the sale-deed was Rs. 4,854.00, it was fictitious, the real consideration being only Rs. 2000.00. It was also pleaded that Smt. Lakhpat Bibi, who was old and infirm and did not execute the sale-deed intelligently but was defrauded into doing so by defendants Nos. 2 and 3, and that the property had not been divided by metes and bounds and, therefore, the plaintiff was a co-sharer and had a right to pre-empt the sale on payment of the real consideration. It was then pleaded that the plaintiff asserted the right of the pre-emption as soon as he came to know that the property was going to be sold. The first relief claimed was a decree for possession and pre-emption of the sale of ⅔rd portion of the house on payment of Rs. 2000.00 which was the real consideration for ' the sale or such amount as may be found by the court to be the real consideration for the same. The second relief claimed was that the sale-deed dated 29th April, 1953, registered on 8th May, 1953 executed by defendants Nos. 2 and 3 and Smt. Lakhpat Bibi in favour of defendant No. 1, in respect of l/12th share in the house in suit be cancelled. The third relief claimed was that if for any reason it was found that the first defendant was the owner of a 3/4th share in the house in suit and the plaintiff was not entitled to the whole of reliefs Nos. 1 and 2, then in that case a decree for pre-emption of the said sale of 3/4th share in the house in suit may be passed on payment of Rs. 2000.00 which was the real consideration for the sale or on payment of such amount as may be found to have been paid as the real consideration, for the sale.

(3.) The defendants contested the suit by denying the alleged custom of preemption in Mohalla Ali Nagar at Gorakhpur. They pleaded that the 4th defendant had not relinquished her share in the property and defendants Nos. 2, 3 and 4 were thus entitled to a 3/4th share in the house which they had the right to transfer as the brothers were living separately and the family was no longer joint although the house had not been divided by metes and bounds. It was further pleaded that 3/4th share in the house had been sold to the wife of the third defendant; that she was not a stranger, rather she was a member of the joint family and, therefore, there was no right to pre-empt the sale in her favour. As many as 18 issues were framed by the trial Court. It is not necessary for the purpose of the case to set out all the issues or the findings thereon. The material findings arrived at by the trial court were on issues Nos. 1 and 7, that Smt. Lakhpat Bibi had surrendered her share in the joint family properties in favour of the three sons and that, therefore, the plaintiffs share in the house in suit at the time of the execution of the sale-deed in question was 1/3; on issue No. 2 that the custom of pre-emption has existed in Mohalla Alinagar at Gorakhpur under which a co-sharer has the right to pre-empt a sale to a stranger but the making of demands in accordance with Muslim Law of pre-emption was not an essential part of the custom; on issue No. 3 that the sia custom of pre-emption was not void for being unconstitutional; on issue No. 15 that although it was not an essential part of the custom of pre-emption as prevalent in Mohalla Alinagar at Gorakhpur, the plaintiff did perform the Talab-i-mowasibat and Ta-lab-i-ishhad in accordance with Muslim Law: on issues Nos. 4 and 14 that the plaintiff was entitled to pre-empt the sale in favour of the first defendant inasmuch as she had no interest in the property and was not a co-owner having equal right with the plaintiff and also because defendants Nos. 2 and 3 had sold their specific shares in the property which they could not have done if they had been the members of a joint Hindu family of which the first defendant may have been a member when the family was joint; and on issue No. 6 that the real consideration for the sale was Rs. 4,854 as mentioned in the sale-deed; and in the result the trial court decreed the suit for cancellation of the sale-deed in question in respect of the sale in excess of ⅔rd share in the house and for pre-emption of the sale of the ⅔rd share on payment of Rs. 4,854 to the first defendant within two months with the direction that if the amount was paid in the court within that period, the plaintiff shall be put into possession of the house failing which the suit for pre-emption of the sale shall stand dismissed.