SMT. DHANPATI Vs. RATIA

JUDGEMENT

(1.) THIS is an appeal filed by Smt. Dhanpati, minor -plaintiff, through Ram Saran, her next friend, against the judgment dated 3rd February, 1969, of Additional District Judge, Karnal, by which he dismissed her appeal against the decree dated 4th June, 1968 of the Sub -Judge 1st Class Panipat dismissing her suit for possession by pre -emption of the land in suit. The facts of this case are that the land in suit measuring 168 kanals and 8 marlas, situate in village Madhlauda, Tehsil Panipat, District Karnal, belonging to Darbari, defendant No. 2, was sold by him for Rs. 10,000/ - to Ratia, defendant No. 1, on the basis of registered sale -deed dated 4th May, 1966. Smt. Dhanpati, minor -daughter of the vendor Darbari, filed that suit for possession by pre -emption, through Ram Saran, her next friend on payment of Rs. 7,100/ -, on the allegations that she being the daughter of the vendor had a preferential right of preemption than the vendee, who is a stranger, that sale took place for Rs. 7,100/ - only and the same was the market value of the land. This suit was contested by the vendee, defendant No. 1. It was alleged that the plaintiff was not born at the time of the sale and, therefore, she had no locus standi to file the suit and the same may be dismissed on this very ground. It was pleaded that the sale took place for Rs. 10,000/ - and the same was the market value of the land. On these pleadings of the parties, the following preliminary issue was framed by the trial Court:

(2.) THE Subordinate Judge held that since the plaintiff was not born at the time of the sale and, therefore, she had no right of preemption and the suit was not maintainable. As a result, the suit of the plaintiff was dismissed, but the parties were left to bear their costs. Feeling aggrieved, the plaintiff filed an appeal against this decree in the Court of District Judge, Karnal, which was dismissed by the Additional District Judge on 3rd February, 1969. Thereafter the second appeal was filed by her as mentioned above. The registered sale deed in suit was executed by the Vendor Darbari, in favour of Ratia, on 4th May, 1966. This suit was filed by the minor -plaintiff on 7th June, 1967. There is no mention either in the plaint or in the written statement about the date of birth of the plaintiff. However, Mst. Sunehri, mother of the plaintiff, made an application on 29th April, 1968 for removing Ram Saran, the next friend of the minor -plaintiff and to appoint her as next friend, as she was the natural guardian of the minor. In this application it was mentioned that the age of Dhanpati minor plaintiff was one and half years. Therefore, Dhanpati was born on or about October, 1966. It was a common case of the parties before the Courts below that Dhanpati, minor -plaintiff, was born after the sale but she had been conceived before the sale. Shri U. D. Gaur, the learned counsel for the appellant, quoted some rulings to show that a child not born at the date of the sate but conceived at the time of the sale, has got a locus standi to challenge the alienation by the father and to file a suit for pre -emption. In Bayava Shiddappu Desai v. Parvateva Basavaneppa Bellad, A I R 1948 Bom. 126, it was held:

(3.) IT was observed in this ruling that the Pre -emption Act confers a peculiar right by statute law and this is a highly technical right hedged round by technical restraints, and the wording of the Section conferring and limiting the right must be read and interpreted in strictest and the most technical way. If we read Sections 14, 15 and 19 together, (sic) find that the Act contemplates the existence of certain rights at the same an alienation takes place and the automatic creation of a cause of action which entitles the pre - emptor to step into the shoes of the aliened from the moment of the alienation. Therefore, he should not only be in existence, but it must be possible to treat him as a concrete person and it must be possible for him to play his part from the very instant when the transfer takes place. Therefore, it cannot be said that an unborn child is capable of playing his part.