TARA CHAND Vs. RADHA SWAMI SAT SANG SABHA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption of properties in village Babadurpur Khaspur which consists of five mahals. The sale deed was executed on 9 December 1927 and was registered on 9 June 1928. The plaintiff alleged that the defendant-purchaser was a stranger and that the plaintiff was a co-sharer in three out of the five mahals. The claim was contested by the defendant on the ground that the defendant was company and had purchased the lands for a the purposes of a manufacturing industry and the property therefore was not pre-emptible. It was further pleaded that under a deed of exchange dated 24thOctober 1927 the defendant had acquired shares in two out of the five mahals which put him on the same footing as the plaintiff. The plaintiff accordingly got his plaint amended and para. 5-A added under which the deed of exchange was challenged as being null and void and fictitious by reason of the fact that the property of Shambhu Dayal which had been taken in exchange by the vendee was the ancestral joint property of himself, his sons and grandsons. It was further urged that the secretary of Radha Swami Sat Sang Sabha, the defendant, had no authority to execute the deed of exchange The plea that the transfer made by the secretary of the Sabha was without authority, has not been pressed in appeal.

(2.) The learned Subordinate Judge has come to the conclusion that the deed of exchange was real and valid and the plaintiff was not entitled to challenge it on the ground that it transferred joint family property. He has further held that the land in question was acquired for the purposes of a manufacturing industry and was therefore not pre-emptible under Section 8(c), Pre-emption Act. It seems to us that the findings of the learned Subordinate Judge are unsatisfactory and it is not possible to dispose of this appeal finally without clear findings on certain questions of fact.

(3.) The learned Subordinate Judge has conceded that in the case of a deed of gift of an ancestral property by a member of a joint Hindu family it would be totally invalid, but he has considered that a deed of exchange stands on a totally different footing. No case on the point had bean reported which would have been a guide to him on the interpretation of Section 20, Pre-emption Act The learned Subordinate Judge accordingly thought that: if the deed of exchange in question is not abinitio void it does not lie in the mouth of the plaintiff, a stranger to the said deed, to question it...but the invalidity of the deed of exchange can only be questioned by his sons and not by strangers like plaintiff.