NATHI LAL Vs. DHANI RAM

JUDGEMENT

(1.) THIS appeal is connected with First Appeal No. 242 of 1915 and arises out of a suit for pre-emption. It appears that one Brahma Shankar sold certain property. In the present suit three brothers Dina Ram, Chunni and Nand Kishore were the plaintiffs seeking to per-empt the property sold. In the other suit which was instituted sometime afterwards, Girwar is the plaintiff. He is also a brother of Dina Ram and Chunni. Both suits were tried together, each set of plaintiffs being made defendants in the other suit. The Court below has made a decree in favour of the pre-emptors, providing that if one pre-emptor does not take then the others might. One-fourth was decreed to Girwar and three-fourths to Chunni, Dina "Ram and the representatives of Nand Kishore, who died whilst the litigation was pending. The custom as proved by the entry in the wajib-ul-arz is the ordinary custom that when a co sharer wishes to sell, he must first offer the property to his co-sharers. Amongst the pleas taken was one that the property had been sold after the plaintiffs had refused to buy. It seems to us that if the evidence shows that the vendor was ready and willing and offered to sell the property to the plaintiffs and that they were unable or unwilling to take the property, he was at liberty to sell it to an outsider so far as they are concerned. Of course we do not moan by this that the vendor would be entitled to offer the property to the plaintiffs at one price and then to go and sell it to a stranger for a substantially smaller price without informing all persons entitled to. pre-emption. In the present case the vendor Brahma Shankar was examined as a witne Sections He proved that he had actually settled with Chunni, Dina Ram and Girwar for the sale of the property to them at the rate of 7 annas 6 pies per cent, of the profits, and that they had given him Rs. 500 as earnest money, that subsequently they being unable to find the rest of the money took back the Rs. 500 from him and that thereupon he sold the property to the present vendees, the witness was hardly cross-examined on this point. Neither Girwar nor Chunni have given any evidence in the case and Dina Ram did not deny what had been stated. The statement of Brahma Shankar is corroborated by the production of the receipt for the Rs. 500 earnest money, bearing an endorsement that it had been returned with the thumb impression of Chunni. It seems to us under these circumstances that we must deal with the case on the assumption that the property was offered to the plaintiffs and that they were unable to find the balance of the purchase-money and that accordingly the negotiations for the sale to them fell through. It seems to us that under these circumstances it would be most inequitable (and contrary to the custom itself) that the sale of the property to the defendants-vendees should be set aside. The learned District Judge himself finds that there were negotiations for the sale of the property and seems to have come to the conclusion) that the negotiations fell through because, the plaintiffs were not prepared to give the price the vendor wanted. Even if we accept this finding as correct, it shows that the plaintiffs were not ready to give the price which the stranger was willing to give, and, if this be so, the vendor was entitled to sell to the stranger. The Court has no doubt found (we think upon somewhat slender grounds) that the price was inflated, but nevertheless the true price according to his finding was more than the plaintiffs were ready to give. We allow the appeal, set aside the decree of the lower Appellate Court and dismiss the plaintiffs suit with costs in all Courts.