NARSINGH NARAIN Vs. RAM CHANDRA PANDEY

JUDGEMENT

(1.) The point that has been referred to the Full Bench is as follows: Whether a person, who has purchased a share in a village, can maintain a suit for pre-emption against a stranger who has subsequently purchased another share, although 12 months from the date of the registration of the plaintifi 3 deed of purchase have not expired and he himself is still liable to be pre-empted by other cosharers.

(2.) The only facts that are necessary to be stated for the decision of this point are as follows : One Mt. Atraji executed a sale deed to one Narsingh Narain on 23rd February 1926. It was by virtue of this purchase that Narsingh Narain became a cosharer in village Jiwa and by virtue of this purchase he claimed pre-emption of a subsequent transfer to be mentioned presently. On 1 May 1926 two persons Lakhpat and Mt. Kanika, sold, among other properties, a share in village Jiwa to one Ram Chander. Two suits for preemption were brought, one against Narsingh Narain by Ganpat which was instituted on 21 February 1927 being suit No. 174 of 1927, and the other suit was filed by Narsingh Narain, seeking to preempt the second sale. This was instituted on 3 May 1927, being Suit No. 418 of 1927. The question now is whether by virtue of his purchase dated 23 February 1926 Narsingh Narain is entitled to maintain his suit instituted on 3 May 1927, although his own purchase has not been of 12 months standing when the second sale was held. The case is governed by the Pre-emption Act of 1922 (Local). Secs.11 and 12 of the Act lay down in what cases a right of pre-emption accrues and who are the persons entitled to pre-emption. In Section 12 in Class 4 are cosharers in the mahal. If Narsingh Narain is a cosharer in the mahal, he would be entitled to pre-empt the property in suit. A cosharer is defined in Section 4(1) of the Act as follows: Cosharer means any person, other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors.

(3.) It will be noticed that to be a cosharer within the meaning of this definition it is not necessary that the cosharer should be of any particular standing. If he made a purchase one day earlier than the day on which the sales he proposes to preempt took place he would be entitled to take the step as a cosharer. Under Section 11 of the Act, his right to pre-empt accrues as soon as the sale takes place. As the sale took place in this case subsequent to the purchase, the right to pre-empt accrued to Narsingh Narain on 1 May 1926. The argument however on behalf of Ram Chander is as follows. The cases have laid down that under Section 19, a purchaser who obtains a transfer in his favour, in order to defeat the plaintiff's right of pre-emption, must obtain a transfer which is indefeasible. This was held in Kundan Gir V/s. Jaswant Singh . It is therefore argued that if the defendant should possess an indefeasible title in order to be able to defeat the plaintiff's right to pre-empt, it is but fair that the plaintiff himself should possess an indefeasible title in order to pursue his remedy. This argument no doubt sounds plausible, but it is not in keeping either with the language of Section 19 or with the spirit of it. Section 19 runs as follows: No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the date of the decree.