BASANTILAL Vs. RANVIR SINGH

JUDGEMENT

(1.) THE following question has been referred by Modi J. to a Division Bench - "whether the sale of the property in suit by the President of the Somvanshi Kshatriya Sabha, Alwar, being the vendor, to the defendant cannot be made the subject-matter of pre-emption on the ground that the plaintiff (pre-emptor) being a member of the Sabha, was also one of the co owners of the suit property, and, therefore, held the position of a co-vendor thereof [within the meaning of S. 10 of the Act of 1946. " THE Act to which reference has been made in this question is the Alwar State Pre-emption Act, 1946 (Act No. VII of 1946 ). Section 10 of it runs, as follows: - "in the case of a sale by joint owners, no party to such sale shall be permitted to claim a right of pre-emption. " THE property in dispute is a house which belonged to the Somvanshi Kshatriya Sabha, Alwar and it was sold by its the then President Ram Swaroop to Ranvir Singh defendant-respondent for Rs. 1,300/- on the 19th of December, 1949. On this, Basanti Lal plaintiff-appellant filed a suit for pre-emption on the ground that he was a co-sharer of the disputed property. One of the defences taken up was that the plaintiff was a member of the Somvanshi Kshatriya Sabha, Alwar, at the time of the sale in question and as the sale was made by the President of the said Sabha on behalf of the Sabha, it must be taken to have been made on behalf of the members of the Sabha at the time of the sale who must be taken to be owners of the property sold and under section 10 of the aforesaid Pre-emption Act, the plaintiff, who must be taken to be such co-owner, could not be permitted to claim a right of pre-emption.

(2.) THE constitution of the aforesaid Sabha has been placed before us and it shows that the Sabha is an association meant for the social uplift of a particular community. THE nature of the right which the members of the aforesaid Sabha enjoyed in the properties of the aforesaid Sabha is difficult to define. If the analogy of a club is to be applied, it may be said that the property Vests in all the members of the association but as pointed out by Paton in his text book of Jurisprudence, Second Edition (1951): - ". . . it is a very special form of co-ownership, for the co-owners are a changing body of persons, a member's share is not alienable, neither can it be seized by his creditors nor transmitted on death - it is merely the right to enjoy the club property so long as he is a member and to share in the distribution of the property if the club be dissolved during his membership. On resignation all rights disappear, and there is no power for a member to demand a dissolution ). " Moreover the analogy of a club cannot directly be applied to this case. THE Sabha was a society meant to look after the social uplift of Somvanshi Kshatriyas. THE position of a member of the Sabha was more of a trustee of the property of the Sabha than that of an owner. Now the ownership of a trustee over the property is merely nominal. "the trustee is destitute of any right ofbeneficial enjoyment of the trust property. His ownership, therefore, is a matter of form rather than of substance, and nominal rather than real. If we have regard to the essence of the matter than to he form of it, a trustee is not an owner at all, but a mere agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. In legal theory, however, he is not a mere agent but an owner. . . . " (Salmond on Jurisprudence, 11th Edn. p. 307)