KAMTA PRASAD MISIR Vs. CHAIT NARAIN SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption which was tried with another suit for the same purpose in the following circumstances : Bans Gopal sold to Chet Narain, the respondent No. 1 in this Court, certain amount of property on 24 of August 1928. Thereupon, two suits were filed to pre-empt the said property. Kamta Prasad and his son Chandi Prasad filed suit No. 435 of 1929 and Beni Madho, whose legal representative is one of the respondents in this appeal, filed suit No. 436 of 1929 also for pre-emption. The suits were heard together. The learned Munsif held that the total consideration was Rs. 1,500 and that the plaintiffs in both the suits were of equal status and were entitled to pre-empt, as against Chet Narain. On the question whether Kamta Prasad and Chandi Prasad were entitled to be treated as two pre-emptors or as only one pre-emptor for the purpose of division of property among the pre-emptors, the counsel for the plaintiffs in suit No. 435 stated that as Kamta Prasad and Chandi Prasad formed a joint Hindu family, they were entitled to one-halt of the property.

(2.) The Court accordingly directed that both the suits should be decreed each for half a share. It gave the plaintiffs of each suit thirty days time to deposit one half of the purchase money and directed that in case one party failed to deposit his share of the purchase money, the other party would be entitled to deposit the same within thirty days of the expiry of the time originally granted. The plaintiffs of both the suits filed appeals, and there was a cross-objection filed by the plaintiff in at least one of the appeals. Kamta Prasad and his son Chandi Prasad's appeal was numbered as 202 of 1930 and Beni Madho's appeal was numbered as 240 of 1930. Kamta Prasad and his son Chandi Prasad contended in their appeal that as between them father and son they were entitled to pre-empt two-thirds of the property and that the statement of the pleader did not bind them. They also impugned the finding that the total consideration was Rs. 1,500 as found by the Court of first instance. Beni Madho's appeal was dismissed for default of prosecution. The appeal of Kamta Prasad and Chandi Prasad, who are the appellants before this Court, was also dismissed on the merits. It was held that the plaintiffs were bound by the statement of their pleader as to the amount of share to be pre-empted by them and that the sale consideration was Rs. 1,500. In the result the appeal and the plaintiffs cross-objection were both dismissed.

(3.) Kamta Prasad and his son Chandi Prasad have appealed and they contend that as between them they were entitled to pre-empt two-thirds of the property and not merely one-half. They further contend that the lower appellate Court should have extended the time to pay the purchase money. On behalf of the respondent Chet Narain it has been contended that the appellants, not having made any deposit of the purchase money so far, their suit stood dismissed and the appeal is not maintainable. A preliminary point, therefore, arises for determination and it is this. Whether in the circumstances of this case the appeal should not be heard? The learned Counsel for the appellant has cited two cases which are directly in point, namely Jhandi Lal V/s. Shiam Lal A.I.R. 1920 All. 134 and Khurshedunnissa v. Alimunnissa (1912) 17 I.C. 868. The case in Jhandi Lal V/s. Shiam Lal (1912) 17 I.C. 868 followed the case in Khurshedunnissa V/s. Alimunnissa (1912) 17 I.C. 868. Both the caaea laid down that where a plaintiff pre-emptor appeals and impugns the correctness of the price found by the lower Court, his appeal is not liable to be dismissed on the ground that he has not complied with the decree of the Court of first instance by depositing the price.