CHAMRU LAL Vs. SHYAM SUNDAR LAL

JUDGEMENT

(1.) It appears that the plaintiff and his seven brothers were maliks of Mahal Nayagaon, each of them having a two annas share in the mahal. On 16 October 1936, one of the plaintiff's brothers sold his two annas interest to the appellant. On 18 October 1936, the plaintiff learnt of the sale, and he forthwith made the first demand for preemption purchase and on the same day he made the second demand (Talab-i-istishhad) also. On 24 November 1936, the appellant sued for partition, basing his title upon the sale deed of 16 October 1936.

(2.) On 8 October 1937, the plaintiff instituted the pre-emption suit which has given rise to this appeal, and on 29 March 1937, he filed a written statement in the partition suit in which he pleaded, among other things, that that suit could not proceed. On 26 May 1937, the partition suit was decreed ex parte, and on 25th February 1938, the suit for pre-emption was also decreed. The purchase money, which the plaintiff was directed to deposit under the pre-emption decree, was duly deposited by him soon after the decree, The first point raised on behalf of the appellant in the appeal was that the plaintiff had lost his right of pre-emption by reason of the preliminary decree passed in the partition suit, and in support of his argument reliance was placed by him on an observation made by the Judicial Committee in Hans Nath V/s. Ragho Prasad AIR (32) PC 19 . The observation is as follows: So it has been held in several oases that where between the dates of what may be called for convenience the pre-emption sale and the institution of the suit, the pre-emptor has lost his status as a cosharer by the partition of the village, Janki Prasad V/s. Ishar Das (99) 21 All 374 or the stranger purchaser has resold to another cosharer, Seri Mal V/s. Hukam Singh (98) 20 All 100 or has become himself a cosharer by an undisputed purchase or by a gift, Ram Hit Singh V/s. Narain Kai (04) 26 All 389 the right of pre-emption is lost. It is contended that this observation supports the view that a preemptor loses his right by the partition of the village, and in this particular case the partition was complete as soon as the preliminary decree in the partition suit was passed. As the observation of their Lordships of the Privy Council was based entirely upon the decision of the Allahabad High Court in (99) 21 All 374 Janki Prasad V/s. Ishar Dasit is necessary to refer to the facts of that case which were briefly these.

(3.) In February 1895 defendants 3 to 5 of the suit which was before their Lordships, had sold a share in an estate known as thoke Ishar Das to the defendant-appellant Janki Prasad, a stranger to the village. The plaintiff, respondent was at that time a cosharer with the vendors in thoke Ishar Das. At the time of the sale, proceedings for perfeot partition of the village had been commenced and were still pending. After the sale the partition was completed, and it became operative on 1 July 1895, when the sanction of the Collector was given. By the partition thoke Ishar Das was divided into several separate mahals. 5. The property sold fell within one of the mahals shown as mahal Ganga Prasad. In that mahal neither the plaintiff nor the vendees owned any share, and it was not until 1896 that the suit for pre-emption was brought. In these circumstances, it was held that as the plaintiff had ceased to be a cosharer as a result of the collectorate partition at the date of the suit, that suit could not be maintained by him. The principle underlying this case is quite intelligible. The right of pre-emption arises as between a cosharer and a stranger. 6. If the cosharer ceased to be a cosharer befora the suit is decided, he loses the very right upon which a suit for pre-emption can be founded, and he there, fore cannot oust the stranger purchaser from the property purchased by him. The same consequences follow, if before the decision of the suit the stranger purchaser becomes a cosharer by reason of an undisputed purchase or gift from another cosharer. In the present case neither of these events has happened. Here the appellant brought the suit for partition on the strength of his having purchased two annas from a brother of the plaintiff, that is to say on the strength of the very transaction which was in question in the preemption suit. The pre- emption suit being decided in favour of the plaintiff, the property became his property, and as the appellant ceased to have a share in the estate he was no longer entitled to continue the partition proceedings. 7. I do not see how, in these circumstances, the mere fact that the appellant had a preliminary decree for partition in his favour can help him. The preliminary decree in a partition suit merely amounts to an adjudication that the plaintiff is entitled to a separate share in the property sought to be partitioned. If however before the share is separated the plaintiff ceases to have a right in that property, his suit must automatically fail. In my opinion therefore instead of the decree in the partition defeating the right of the plaintiff, it was the appellant who lost his right to partition as a result of the pre-emption decree. 8. Another point which was raised by the learned advocate for the appellant was that inasmuch as the plaintiff did not intervene in the partition proceedings as soon as the decree was passed in his favour in the preemption suit and object to the continuance of the proceedings, it must be held that he had elected to waive the right acquired by him under that decree. The argument appears to me to be a novel one. The plaintiff had deposited the purchase money in pursuance of the pre- emption decree, and he did appear in the partition suit before the final decree was passed and ask the Court to stay proceedings. 9. The learned advocate for the appellant says that he should have done so much earlier; but he also concedes that in law there was no limitation for his making such an application. He says that the application should have been made within a reasonable time; but he was not able to define what would have been reasonable time in the circumstances of the pre- sent case. It is admitted that no final decree has been passed in the partition suit, and in my opinion all that the plaintiff was required to do was to see that no final decree was passed in that suit after he had obtained a decree in his suit for pre-emption. In my opinion there was no waiver in the case and the argument that the waiver should be presumed from the circumstances of the case must be negatived. As no other points were urged, I would dismiss this appeal with costs. Harries, C.J. 10. I agree.