LAWS(PVC)-1913-12-39

KAMTA PRASAD Vs. RAM JAG

Decided On December 03, 1913
KAMTA PRASAD Appellant
V/S
RAM JAG Respondents

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption. The sale in respect of which the plaintiffs brought their suit took place on the 2nd of May, 1910. The suit was instituted on the 2nd of May, 1911. On the 4th of May, 1911, the vendee re-sold the property to Kamta Prasad the appellant. For the purposes of the present appeal it must. be assumed that a custom of pre-emption as set forth in the plaint (paragraph 2) prevails in the mahal in which the property is situated. The original vendee was a stranger. The plaintiff is a co-sharer with the vendor, but the appellant, Kamta Prasad, is not only a co-sharer but a relative. We must take it, therefore, that Kamta Prasad had a superior right of preemption at the time of the sale over the plaintiffs. The real question in the appeal is whether or not the mere fact that the property was resold to Kamta Prasad on the 4th of May, 1911, defeats the right of the plaintiffs to preempt this property.

(2.) We think that the question really depends upon what was the custom prevailing in the mahal. In ordinary language the custom was to the effect that the vendor was bound, when he contemplated selling the property in the first place, to offer it to Kamta Prasad. I Kamta Prasad refused to purchase, he should offer it to the plaintiffs. If the plaintiff refused to purchase, then he was at perfect liberty to sell it to a stranger. In our opinion Kamta Prasad having taken no steps of any kind to enforce his rights until after the period of limitation had expired, is in no better position than he would have been had the property been expressly offered to him and be had refused to buy it. We think it can hardly be contended that if this bad taken place it would be in accordance with the custom that be could afterwards have changed his mind and defeated the claim of the plaintiffs.

(3.) Reliance has been planed on the case of Manpal v. Sahib Ram (1) (1905) I L. B. 27 All. 644 In that case the circumstances were very similar to the circumstances of the present case, but the appeal had been referred to a Fall Bench on a question arising under Section 52 of the Transfer of Property Act. This question was never decided by the Full Bench. The learned Chief Justice says at page 546: "This appeal was referred to a Full Bench by two of us on the representation that it involved the determination of the vexed question of the true construction of Section 52 of the Transfer of Property Act. At the close of a lengthy argument Pandit Sundar Lal on behalf of the respondent raised a point which appears to us to ho fatal to the appeal, and it is not necessary having regard to the view which we take upon that point, to determine the main question, which has been discussed before us at very great length."