LIAQAT KHAN Vs. ABDUL MAJID KHAN

JUDGEMENT

(1.) This is an appeal by four plaintiffs whose suit for pre-emption was dismissed by the Civil Judge of Ghazipur. He held that the vendors, Sohrab Khan and others, had sent to the plaintiffs by registered post a notice under Section 14, Agra Pre- emption Act of 1922 stating what property was to be sold, the names of the vendees and the price settled and that the plaintiffs Liaqat Khan and Muhammad Khalil Khan took delivery of the notice but Liaqat Khan alone replied while the other two plaintiffs Raja Khan and Arif Khan refused to take delivery of the notice. As regards the reply sent by Liaqat Khan the learned Judge held that it did not indicate his intention to purchase the property so that none of the plaintiffs had communicated any such intention and, therefore, in view of Section 15, Agra Pre- emption Act, their right to pre-empt had become extinguished. In any case, even if Liaqat Khan had not lost his rights under Section 15, he sued jointly with others who had and he could not succeed either, in view of section 21.

(2.) Learned Counsel for the appellants had urged that Liaqat Khan's reply communicated an intention to purchase the property and that the disqualification under Section 21 arises only when one of the plaintiffs had never had any right of pre-emption under the Act, that is to say, when he was not one of the persons enumerated in Section 12 of the Act. Further, he has argued that the notice was not a proper notice under Section 14, so that the rights of none of the plaintiffs were extinguished under Section 15. Learned Counsel says that the notice is not a notice under Section 14 because a share in the property sold belonged to a minor, Mt. Askari Bibi, whose property the vendors could not sell and the sale consideration, Rs. 17,500 was composed of Rs. 14,500 for the property sold and Rs. 3000 for abandoning exproprietary rights, a transaction which was illegal under the Tenancy Act, and Rs. 14,500 should have been the figure in the notice. For the proposition that Liaqat Khan, at any rate, should have had the suit decreed in his favour, the learned Counsel relies on two decisions of this Court, Lal Behari Misra V/s. Equeen Mohammad Hajjam and Suraj Prasad V/s. Oudh Behari . In the first case it was held that Lal Behari a plaintiff had agreed to the sale deed in question, was present at the time of registration and accepted the amount which was left with the vendee for payment to him and was, therefore, estopped. Section 15, Agra Pre-emption Act, was not referred to. It was, however, stated in that decision that in the opinion of the learned Judges, Section 21 was not intended to alter the previous law and reference was made to Chotu V/s. Husain Bakhsh ( 93) 1893 A.W.N. 25. The learned Judges stated that before the Preemption Act was passed where one cosharer had joined another cosharer in the suit but this cosharer was disqualified from pre-empting by reason, for instance, of not having performed the necessary demands required by the Mahomedan law, it used to be held that the first cosharer was not disqualified from maintaining the suit merely because he had joined the second cosharer in it. In the second case the learned Judges held that it was not necessary for them to consider the effect of the statutory provision of Section 15 of the Act as to the extinction of the right of pre-emption on failure to reply to a notice served under Section 14, but as to estoppel under Section 115, Evidence Act, they held that such an estoppel merely operated as a bar to the suit and did not necessarily extinguish the right. This strongly suggests that had the learned Judges found that there was an extinction of the right of preemption they would have held that none of the plaintiffs in that case were entitled to preempt. Both these cases are therefore authority for holding that the relief of plaintiff by suit is barred by something outside the Pre-emption Act, such as estoppel, but do not decide whether if that plaintiff has lost his rights by a provision of the Act a co- plaintiff can succeed in the suit.

(3.) Section 21 is to the effect that where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right; and where a pre-emptor of a higher class sues jointly with a pre-emptor of a lower class, he shall have no higher right than the person with whom he so sues. It is clear that the rights of a person having a right of pre-emption are affected whenever he joins a plaintiff who has a lesser right under the Act for his right is reduced to the right of the person with lesser right; and so in my judgment, if he joins with him a person who once had rights under Section 12 but had lost them under Section 15 the right of the person who had not himself lost it under Section 15 should not be greater than those of a co-plaintiff who no longer had any. Therefore if a person who has a right of pre-emption is a co-plaintiff with a person whose rights have been extinguished by the provisions of Section 15, his rights are similarly extinguished.