DURGA DEVI Vs. JAMNA DEVI

JUDGEMENT

(1.) - This is a Civil Second Appeal in a suit for pre-emption.

(2.) MST. Goran, who was Defendant No. 1 in the trial court and who after her death is represented by her daughters MST. Durga Devi and MST. Dhapan Devi, sold certain house property detailed in the plaint, situated at Jaipur to her son-in-law Sunder Lal by the sale-deed dated the 16th of April 1948. The sale was for a sum of Rs. 999/ -. On this Roopnarayan, who is also dead and is now represented by his widow MST. Jamna Devi filed a suit for pre-emption in the court of the Munsiff, West, Jaipur City on the 24th of November, 1948. On the 25th of July, 1950 MST. Durga and MST. Dhapan instituted another suit, Civil Original No. III of 1950, for a declaration that the sale of the disputed house by their mother to Sunderlal was null and void. Roop Narayan was made a party to this suit but after his death the matter was not pursued and his legal representatives were not brought on record. MST. Dhapan and MST. Durga obtained an ex parte decree against MST. Goran and Sunderlal in the suit for declaration on the 25th of May, 1951 by which it was declared that the sale was valid for the lifetime of MST. Goran and was null and void as against the plaintiffs in that suit after the death of MST. Goran. In the preemption suit after MST. Goran's death her two daughters MST. Dhapan and MST. Durga were brought on record as her legal representatives. These two ladies filed the written statement raising the plea that the sale-deed had become ineffective by virtue of the declaratory decree already referred to and the suit for pre-emption was not maintainable. The learned Munsiff did not accept this plea and decreed the suit on the 14th July, 1955, In the appeal filed by MST. Durga and MST. Dhapan against the judgment and decree of the Munsiff West decreeing the suit for pre-emption, it was urged that the learned Munsiff was wrong in holding that the plaintiff's suit was maintainable in spite of the fact that the sale had become ineffective by virtue of the declaratory decree dated the 25th of May, 1951. The lower appellate court came to the conclusion that the ex parte declaratory decree was nothing but the result of the active collusion on the part of the parties in the declaratory suit and could not be of any avail against MST. Jamna Devi in the present suit for pre-emption and that to hold otherwise would be to allow them to take advantage of their own fraud and would amount to injustice against MST. Jamna Devi. The appeal was therefore dismissed.