BAPURAO KHUSAL Vs. BALIRAM KOLBAJI

JUDGEMENT

(1.) THIS is an appeal by the original defendants Nos. 1 and 2 against a decree passed in favour of the plaintiffs awarding them possession of the suit land in enforcement of their right of pre -emption. The suit land admeasures 21 acres 29 gunthas out of survey No. 141 of village Nanded Buzruk, Taluq Daryapur, District Amravati. It was owned by one Nathu. It appears that Nathu was Indebted to some creditors and there were debt proceedings in respect of his debts and these terminated in framing of a scheme dated July 15, 1940, under Section 11 of the C.P. and Berar Relief of Indebtedness Act, 1939, which I will hereafter refer to as the Debt Relief Act. Under that scheme there were two creditors of Nathu, one Eknath who was to be paid Rs. 1,096, and another Sitaram who was to be paid Rs. 450. The last instalment payable to Sitaram was in 1949 and that payable to Eknath was in 1952. On May 16, 1947, Nathu sold to the plaintiffs 8 acres out of survey No. 141 by a sale -deed which is exh. P -3. The land thus purchased by the plaintiffs has no concern with the land in suit and forms a different portion of survey No. 141. On June 2, 1949, Nathu gave on lease the suit land in favour of Rajaram Bapurao, the present appellant No. 2, for a period of ten years, the lease to commence from the year 1950 -51. On January 3, 1951, Nathu sold the suit property which was leased to Rajaram, to Bapurao, the father of Rajaram, for a consideration of Rs. 9,000 and that sale -deed is exh. P -2. The sale was subject to the registered lease effected in favour of Rajaram. By virtue of this sale, the plaintiffs claimed to exercise their right of pre -emption on the basis that they were co -occupants in survey No. 141 by reason of their purchase of 8 acres of land in the same survey number from Nathu on May 16, 1947 (exh. P -3). They also claimed to exercise their right of pre -emption free from the liabilities of the registered lease created in favour of Rajaram in 1949. On these allegations the plaintiffs filed their suit to enforce their right of pre -emption on November 16, 1951. The defendants Bapurao and his son Rajaram resisted the suit on the ground that the plaintiffs had no right of preemption as they were not co -occupants in survey No. 141, their sale -deed being void as they had purchased 8 acres of land from the said survey number from Nathu while the scheme of repayments of his debts had not been exhausted, and they relied for this purpose on the provisions of Section 15(2) of the Debt Relief Act. The defendants also denied the plaintiffs' allegation that the lease executed in favour of Rajaram was intended to defeat any rights of pre -emption of the plaintiffs but was a valid transaction, and, therefore, even assuming that the plaintiffs were entitled to pre -empt, the registered lease in favour of Rajaram could not be said to be nominal and void and the plaintiffs would have to take possession of the land subject to the provisions of the lease.

(2.) ON these pleadings the trial Court raised several issues and held that the lease transaction dated June 2, 1949, was a nominal transaction without any consideration and was brought about to put an obstruction to the plaintiffs' right of pre -emption. It also held that the scheme framed by the Debt Relief Court in respect of Nathu's debts was not pending at the time of the plaintiffs' sale transaction dated May 16, 1947, the debt of Bknath as well as that of Sitaram having been satisfied. It also came to the conclusion that the transaction in favour of the plaintiffs was not void under Section 15(2) of the Debt Relief Act. Consequently, it gave a finding that the plaintiffs were co -occupants of the land in suit and were entitled to enforce their right of pre -emption. That is why it passed a decree in favour of the plaintiffs awarding them possession of the suit land on the plaintiffs' depositing in Court the amount of Rs. 9,000 minus the costs of the suit for payment to defendant No. 1. Both the defendants challenge the correctness of this decision in this appeal.

(3.) I am strengthened in this view by an unreported decision of the Nagpur High Court in Kisanlal v. Zumki (1947) C.R.580 of 1945. That was a case where the creditor himself purchased certain property from the debtor after the scheme under the Debt Relief Act was prepared and a part of the consideration was the satisfaction of his debt. No sanction of the Deputy Commissioner was obtained to this transfer; and Mr. Justice Vivian Bose held on these facts that the transfer was void under the provisions of Section 15(2) of the Debt Relief Act.