ABDUL Vs. KISAN

JUDGEMENT

(1.) 1. This appeal arises out of a suit for recovery of Rs. 2,000 as damages for breach of a covenant for title. Kisan Tukaram, who was defendant 2 in the first Court and is respondent 1 here, had executed a sale deed on 5th February 1923 in favour of defendant 1(respondent 2) Nathu Akaji in respect of field No. 16/2 for Rs. 1,500. The appellants who were plaintiffs in the lower Court brought a suit for pre-emption and obtained a decree against Nathu Akaji in Civil Suit No. 57 of 1924. They deposited Rs. 1,500 on 30th October 1924 for payment to Nathu Akaji who withdrew the sum on 21st July 1925. Then the: plaintiffs discovered that there was a decree for sale already passed in respect of the field in Civil Suit No. 240 of 1921 on the basis of the mortgage. In execution of the decree in that suit the pre-empted field was sold. The plaintiffs consequently filed the suit out of which this appeal, arises for recovery of damages. The-trial Court decreed the plaintiffs' claim against Kisan only. In appeal it was held that the plaintiffs were not entitled to any relief of compensation for the breach of the covenant of title for the reason that the pre-emption was not a. voluntary sale.

(2.) IT is contended for the appellants that a pre-emption sale could not be regardel as a compulsory sale. I have therefore to determine in the first instance whether pre-emption sale is a voluntary or a compulsory sale. A compulsory sale is defined as a sale which is forced upon an unwilling vendor and in which neither the purchaser is a man of his choice, nor the term's of the sale including the price are fixed by any contract with him, the sale being ordered by Court conducted, by its officer and subject to its approval before being treated as final: see Tagore Law Lectures 1913, p. 4. The sales such as those for public purposes under the Land Acquisition Act, those in execution of decrees or those made to equalize a partition or those made for recovery of arrears of revenue, rent or some public demands, can certainly be characterised as involuntary or compulsory sales. A voluntary sale on the other hand is a transfer effected by the owner of the property with his free consent in favour of another person chosen by himself and on terms mutually agreed, the price being immediately paid or promised or part paid and part promised: see ibid p. 1. Whether pre-emption sale is voluntary or compulsory depends upon whether the vendor is free to sell or not to sell.

(3.) THE view enunciated here that right of pre-emption is simply a right of substitution and not a right of repurchase was accepted by this Court in Mt. Raijat v. Irbhan 1909 5 N.L.R. 136. It is therefore evident that the pre-emption sale is in reality a voluntary sale. The learned Tagore Law Lecturer of 1913 also characterises a pre-emption sale to be a voluntary sale. He observes as follows: The sale is not forced upon an unwilling vendor indeed the price and the terms are determined by a contract with whom it is merely a substitution of one purchaser for another: see ibid p. 4.