ALIMULLAH Vs. MOHAMMAD KHALIL

JUDGEMENT

(1.) This is an appeal by Alimullah, defendant-vendee, arising out of a pre-emption suit. The vendee contested the suit inter alia on the ground that Mohammad Khalil, plaintiff respondent, had no preferential right of pre-emption as against him. This contention of the vendee was overruled by both the Courts below and Mohammad Khalil's suit was decreed in part. In order to appreciate this contention of the vendee, it is necessary to state the following facts: On 1 July 1935, Mohammad Yakub vendor entered into a transaction of exchange with Alimullah. The transaction was effected by a registered instrument. By the deed of exchange, Yakub transferred a one pie share to Alimullah in the village in which the pre- empted property is situated, and Alimullah in exchange gave to Yakub two specific plots in another village called Nagaria. Thereafter, on 22 July, 1935, Yakub sold a four pies share to Alimullah for an ostensible consideration of Rs. 374. Mohammad Khalil, plaintiff-respondent, then brought the suit for pre-emption giving rise to the present appeal. In the plaint he alleged that the exchange and the sale were parts of one and the same transaction and that the actual consideration paid by Alimullah with respect to both the transactions was only Rs. 300. It was also stated in the plaint, that Alimullah had no right to transfer the two plots in village Nagaria. On these allegations Mohammad Khalil prayed for a decree for possession of the five pies share by right of pre-emption on payment of Rs. 300.

(2.) The allegation that the exchange and the sale were parts of the same transaction was denied by Alimullah and he asserted that the exchange was a separate transaction and, by virtue of the exchange, he became a cosharer in the village, and, as such, the plaintiff had not a preferential right of pre-emption as against him. He also contended that the consideration entered in the sale deed was correct. The findings of both the Courts below on these questions are in favour of Alimullah vendee and there is no dispute about these points in the present appeal. It appears that Mohammad Yakub was not able to get possession over the two plots given to him in exchange by Alimullah; Mohammad Yakub then brought a suit for return of the one pie share given by him in exchange to Alimullah. This suit, though contested by Alimullah, was decreed by the trial Court, and the decision of that Court was, on appeal, affirmed by the District Judge. It is, therefore, clear that, during the pendency of the suit for pre-emption giving rise to the present appeal, Yakub had obtained a decree for the return of the one pie share given by him in exchange to Alimullah. The contention put forward by Alimullah in the Court below was that, as on the date of the sale sought to be pre- empted as also on the date of the institution of the suit for pre-emption he was entitled to the one pie share given to him by exchange, Mohammad Khalil had not a preferential right of pre-emption as against him. The argument put forward on behalf of Mohammad Khalil, on the other hand, was that as the suit of Yakub for the return of one pie share was decreed it must be held that the exchange was void from the very outset and Alimullah had never any title to one pie share. This contention of Mohammad Khalil, as already stated, prevailed in the Courts below. I am unable to agree with the decisions of the Courts below. It was held by a Full Bench of this Court in Tara Chand V/s. Radha Sami Satsang Sabha that a vendee can be a cosharer within the meaning of Section 4(1), Pre- emption Act, at the time of the sale-deed in his favour if he possesses merely a defeasible interest in the mahal.

(3.) The case is an authority for the proposition that a suit for pre-emption does not lie against a vendee who, on the date of the sale, sought to be pre-empted had an interest in the mahal, even though that interest is defeasible. The only exception to this rule, according to the Full Bench decision, is furnished by cases in which there are successive sales in favour of the vendee and each of those sales is pre-empted by the pre-emptor. In such a case the vendee is not entitled to defeat the suit for pre-emption as regards the second sale deed in his favour on the basis of the defeasible title acquired by him under the first sale deed. The reason for this rule is stated to be that where a pre-emptor pre-empts the first sale deed in favour of the vendee he destroys the very foundation on which the vendee could base his defence in bar of the suit for pre-emption of the second sale in his favour. In the case before me, there is no question of successive sale deeds in favour of Alimullah, defendant-appellant, and the exception to the rule noticed above has, therefore, no application to the case. It cannot be disputed that by the exchange Mohammad Yakub had transferred a one pie share to Alimullah. The exchange was effected by means of a registered instrument and, therefore, conveyed good title to Alimullah to the one pie share. It is, however, a fact that Alimullah was not solely entitled to the two plots given by him in exchange to Mohammad Yakub. In view of the defect in the title of Alimullah to the two plots Mohammad Yakub had by virtue of Section 119, T.P. Act, a right to claim damages from Alimullah or to sue for the return of the one pie share. It is this latter right that Yakub exercised by bringing the suit referred to above against Alimullah. That suit, as stated before, was decreed and Yakub got back his one pie share. This, however, happened after the date of the institution of the suit for pre-emption filed by Mohammad Khalil.