BALAJI KOSHTI Vs. RAMBILAS

JUDGEMENT

(1.) A somewhat interesting question of law arises in the present case. The minor plaintiff-respondent brought the present suit against the defendant-appellant Balaji for possession of absolute occupancy field No. 37 in mouza Kinhi (Nagpur) on the following allegations. His estate was being looked after by his mother, Mt. Rukmabai, and she entered into an agreement to sell the field to a third party for Rs. 3,400 on 15th May 1924. In accordance with Sub-section (2), Section 6, Ten. Act, 1920, she gave notice to the defendant of her intention to sell. The defendant claimed the right to purchase the field in exercise of his pre emptive title. In the revenue proceeding, the question of valuation alone was contested. The plaintiff's case is that there was no legal necessity for his mother to have made the transfer to the third party, Sheoram, and that, therefore, the possession of the field by the defendant is illegal and the plaintiff is entitled to retain possession. The defence was that the plaintiff's remedy, if any, lay under the Tenancy Act; that the suit was barred under Section (105) thereof; that the defendant had entered into possession, not by virtue of a transfer but by enforcement of his statutory right; and that the suit did not lie. The Subordinate Judge accepted the defendant's contentions and held that the question of legal necessity did not arise and could not arise with regard to the proceedings under Section 6, Ten. Act. The suit was accordingly dismissed.

(2.) THE plaintiff appealed to the Court of the 'District Judge, Nagpur, and succeeded in that appeal. As a result, the defendant has come up on appeal to this Court against the remanding judgment of the District Judge, dated 28th September 1927. The District Judge was of opinion that the suit contemplated only the setting aside by a minor of a transaction on the general ground that it was not for his benefit and, in arriving at the decision he did, he relied on a judgment of this Court passed in Deoram Gujar v. Biju Gujar A.I.R. 1927 Nag. 226.

(3.) THERE is another reason, moreover, why the present suit could not possibly lie. It was open to the minor plaintiff in the revenue proceedings to offer any plea he liked, viz., that there had been no intention to transfer or that the intended transfer to Sheorani was not in his interests. No such plea was offered; on the contrary, the jurisdiction of the revenue Court was accepted and only the question of valuation was agitated. His very position in that Court was that there was an intention to make a valid transfer and he now indeed seeks to come to this Court on a diametrically opposite position. Some argument has been offered by the pleader for the respondent ion the strength of the word "purchase" in Sub-section (2), Section 6, but I do not think that the statutory right of pre-emption given to the landlord under this provision can be regarded as an ordinary transfer. What the law in this connexion lays down in the Tenancy Act is that the malguzar, as the ultimate or superior owner of the village, has, in any case of intended transfer, a statutory right of pre-emption. That right has been duly exercised in the present case, and having regard to Section 105(a), Ten. Act, it seems to me that the jurisdiction of the civil Court is necessarily excluded. I may add that the Tenancy Act makes no special exception in favour of a minor tenant and that, in my opinion, therefore, it is not open to the plaintiff in the present case to come to Court, as he does, on the alleged cause of action of want of legal necessity for the intended transfer.