MT HANKAR KUNWARI Vs. BISHWAR DAYAL SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption of shares in villages Pakri and Tengri transferred under a sale deed dated 12 February 1927 by the plaintiff's sister. The plaintiff alleged that under a deed of gift from her mother, Mt. Sunraj Kunwari, she was the sole owner of the property, and her sister had no interest in the major part of the property; as regards the rest she admitted her title. She claimed pre-emption of the property admittedly belonging to her sister, and also of the rest of the property, in the alternative, if her own title was not established. She offered to pay the amount to the Court which was found to be the true consideration. The claim was resisted on various grounds, but not on the ground that the fact that the plaintiff had asked for pre-emption in the alternative was fatal. The learned Munsif decreed the claim for pre-emption on payment of Rs. 230 in cash, and subject to the charge of a mortgage deed dated 9 September 1913. Three appeals arose out of the connected suits, but the plaintiff did not raise the question of consideration afresh before the District Judge, and submitted to the amount ordered to be paid. The vendees in their appeal for the first time raised the plea that because of the alternative grounds on which the claim for pre-emption was based, the suit ought to fail.

(2.) The learned District Judge has acceded to this contention. He noted that there were authorities of this Court under which the plaintiff was not disqualified from claiming pre-emption merely because she had set up an alternative claim of title, but he felt himself bound by the pronouncement of their Lordships of the Privy Council in the case of Abdul Wahid Khan V/s. Shahika Bibi [1894] 21 Cal. 496 In our opinion, the ruling of their Lordships of the Privy Council does not at all decide the point which arises in this case. There, on the death of one Muradi Bibi, her mother Shaluka Bibi sold half of her legal share to certain purchasers, and they brought a suit for possession against Muradi Bibi's husband, Abdul Wahid Khan. The defendant resisted the claim on the grounds (1) that Mt. Shaluka Bibi had before the sale relinquished all her rights in the property, and (2) that the defendant had a right of pre-emption in respect of the property and that no notice as required by law was issued. Their Lordships of the Privy Council, in dealing with the second plea, referred to the provisions in the Oudh Laws Act relating to the right of pre- emption and the suits brought to enforce such a right and then remarked: This law is not applicable where the person who would be entitled to pre- emption denies the title of the person who proposes to sell and alleges that they are not-cosharers and that he is entitled to the whole of the property.

(3.) It is this observation which is relied upon by the lower appellate Court. It seems to us that their Lordships had before them the contention that a defendant is entitled to resist a claim for recovery of possession based on title on the ground that he himself had a right of pre-emption and that no notice had been served upon him which took away that right. Such a plea obviously could not prevail as a defence to a suit for recovery of possession where the defendant had not exercised his right of pre-emption by suit as required by law. We do not think that their Lordships have laid down that in the converse case where the plaintiff's property has been included in the sale deed, he cannot claim his own property and, in the alternative, claim pre-emption. When such a case arises, the plaintiff can maintain a suit for recovery of possession and can also independently maintain a suit for pre-emption. There seems to be no reason why he cannot be allowed to combine both the suits in one and base his claim on alternative grounds. In the case of Bhagwati Saran V/s. Parmesha Das A.I.R. 1914 All. 271 it was held by a Bench of this Court that there is nothing in law to prevent a plaintiff in a suit for pre-emption from also setting up a claim for possession of property as owner, and his suit ought not to be dismissed on the ground that he has put his case in the alternative. This case was followed by another Bench in Abdul Aziz V/s. Mariam Bibi in which two other cases where the plaintiff was trying to set up the title of a third party were distinguished. A pre-emptor is not allowed to put the vendee to the proof of the title of the vendor, which will be the case if he is asserting that some other person is entitled to a part of the property transferred. That difficulty does not arise where the plaintiff is asserting that his own property has been included in the sale deed. In our opinion, the view taken in the subsequent case of this Court can not be said to be contrary to the opinion expressed by their Lordships of the Privy Council in Abdul Wahid Khan's case [1894] 21 Cal. 496.