BABAN Vs. SURYABHAN KALYANJI

JUDGEMENT

(1.) 1. This appeal arises out of a suit for pre-emption. Field No. 24 of Mouza Lodhipur, Taluq Murtizapur, District Akola, which has an area of 32 acres and 32 gunthas consists of 3 pothissas. Defendants 3 to 5 were the occupants of pothissa No. 1 having an area of 21 acres and 11 gunthas, while the plaintiffs were the occupants of pothissa No. 3. On 22nd February 1928 defendants 3 to 5 sold a half share of their pothissa No. 1 to the first two defendants for Rs. 787 without giving to the plaintiffs a notice as required by Section 206 of the old Berar Land Revenue Code, 1896. The plaintiffs therefore' instituted a suit for pre-emption on 20th February 1929. They also alleged that the market value of the land was Rs. 587 only and not Rs. 787 for which it was apparently sold.

(2.) THE claim was resisted by the defendants on various grounds one of which was that the plaintiffs had no subsisting right of pre-emption on the data of the suit as the property in dispute-was re-conveyed by the first two defendants to the original vendors, defendants 3 to 5, on 29th November 1928, under an express agreement to that effect. This defence prevailed in the-trial Court with the result that the plaintiffs' suit was dismissed. On appeal by the plaintiffs the Additional District Judge having held that the reconveyance had not the effect of extinguishing the plaintiffs' right of preemption set aside the decree of the trial Court and decreed the plaintiffs' claim holding however that the price mentioned in the sale deed was the market value of the land. Against this decree-defendants 3 to 5 have come up to this Court on second appeal. The only question for decision in the appeal is whether the re-conveyance by the stranger purchasers to the original vendors who had not completely lost their right of co-occupancy in the field, had the effect of extinguishing the plaintiffs' right of pre-emption since the re-conveyance was admittedly made before the suit for pre emption was filed. Mr. Kathalay for the appellants argued that the answer to the question at issue must be in the affirmative while the respondents' counsel maintained the contrary., It was conceded by the appellants' counsel that there was no direct authority available on the point. But he relied upon the following observations of Batten, A. J. C., in Ganpatsa Mahadsa v. Joomabhai (1906) 2 NLR 150: (at pp. 154 and 157 of 2 N. L. R. Under Section 205 of the Code all co-occupants in the same survey number have a right of preemption and the spirit of the above rulings is that if previous to the institution of a suit the land has passed by re-sale into the hands of a subsisting co-occupant the plaintiff has no subsisting cause of action, for the last vendee has as good a right of pre-emption as he has. But to hold that a co-occupant who has voluntarily parted with the whole of his share and who has thus voluntarily constituted himself a stranger, and has by introducing another stranger brought about the state of things which the law of pre-emption is designed to prevent, can defeat a pre-emptor by obtaining a re-conveyance from his vendee, would be to hold that a person who has once been a co-occupant is in as good a position as a person who is still a co-occupant.... On the other hand, at any time before a decree is passed the right of the pre-emptor may be defeated by his losing his pre-emptive tenement, or by the stranger vendee re selling to a person having equal rights of pre-emption with the plaintiff, or by the stranger vendee himself acquiring such rights. But there is no authority for the view that whether before or after the institution of the suit, the vendee can defeat the preemptor's right by re-conveying to the vendor who has parted with the whole of his share; and there is direct authority for holding that such re-conveyance if made after the institution of the suit does not dissolve the right of pre-emption.

(3.) THE right of pre-emption owes its orgin to a desire to prevent the introduction of a stranger among cosharers. If therefore before pre-emption proceedings are instituted the property has found its way into the hands of the vendors cosharers as is the case here, the main cause of complaint is removed and the right of pre-emption falls with il. In Ganpatsa Mahadsa v. Joomabhai (1906) 2 NLR 150, Mt. Raijai v. Irbhan (1909) 5 NLR 136 and Lataji v. Krishnaji relied on for the respondents the facts were entirely different. In each one of the cases the transferring cosharer had parted with all his rights of co-ownership in favour of a stranger purchaser and it was therefore held that the re conveyance by the latter in favour of the former did not defeat the pre-emptive right of the plaintiff cosharer. The case of Ramchandra v. Rupchand AIR 1927 Nag 296 is also easily distinguishable on facts from the present case. All that was held in that case was that a Berar co-occupant having a right of pre-emption does not lose that right if the vendee, before a suit for preemption is filed, acquires a pre-emptive-right inferior to that of the co-occupant.