AMBIKA PRASAD Vs. MTNAZIRAN BIBI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit in which the plain-stiff prayed for a decree for specific performance of a contract of sale with respect to a share in village Mathia and in the alternative for a decree for possession of that share by right of pre-emption. The facts on which the plaintiff based his right to the reliefs mentioned above are no longer in controversy and are as follows: One Munshi Birj Mohan Lal was the owner of the entire village Mathia. By means of a written agreement dated 5 December 1889, Birj Mohan Lal divided the village between himself, his sons and his wife. Thereafter Birj Mohan Lal sold the share allotted to him by the agreement referred to above to one Ibarat Husain. On 22 December, 1897, all the cosharers of the village including Ibarat Husain entered into an agreement to the effect that if any cosharer was desirous of selling his share in the village he should sell the same to the other cosharers and only in the event of their refusal to purchase the same he could sell his share to a stranger. Chandi Prasad, defendant 2, who was a cosharer in village Mathia, sold his share to Mt. Naziran, defendant 1, by means of a sale-deed dated 27 November 1933. The plaintiff-appellant, who is a cosharer in the village, then brought the suit in which the reliefs mentioned above were prayed for by him. His claim was based on the allegation that the agreement dated 22 December, 1897 was binding on all the cosharers and that, in enforcement of that agreement, he -was entitled to a decree for specific performance of contract of sale and that in any case he was entitled to treat the covenant mentioned above as an agreement giving him the right to exercise the right of pre-emption. Further, in the course of the trial reliance was placed by the plaintiffs on two decrees in two rival pre-emption suits as a basis for the argument that a custom of pre- emption prevailed in the village in dispute. The defendant-vendee contested the suit. She denied the existence of a custom of pre-emption in the village and maintained that the agreement embodied in the deed dated 22 December, 1897 was not enforceable at law, and as such, the plaintiff was not entitled to either of the reliefs prayed for by him. Both the Courts below gave effect to the pleas raised in defence and dismissed the plaintiff's suit.

(2.) In second appeal before me, it is contended on behalf of the plaintiff-appellant that the agreement dated 22 December, 1897 was binding on all the cosharers and as defendant 2 sold the property to defendant 1 in violation of that agreement, the plaintiff was entitled to a decree either for specific performance of that agreement or; in the alternative to a decree for pre-emption. In support of this contention, reliance has been placed on the Full Bench decision of this Court in Aulad Ali V/s. Ali Athar . In that case it was held that an agreement between the cosharers of a village to transfer their respective shares to the other cosharers before transferring the same to a third person was neither void for uncertainty nor offended against the rule as to perpetuities, but, on the contrary was a perfectly good agreement in law and that a suit for pre-emption on the basis of such an agreement was maintainable. In my judgment this case has no application to the case before me. The Full Bench had to deal with cases in which a right of pre- emption was claimed with respect to certain sale deeds that were executed prior to the coming into force of the Agra Pre-emption Act. Tha Agra Pre-emption Act came into force on 17 February 1923, and a perusal of the paper-books of the appeals that were dealt with by the Full Bench shows that the Sales sought to be pre-empted in those cases were sales that had taken place before 1923. The Full Bench was not called upon to consider the question whether or not the Agra Pre- emption Act had in any way affected the binding nature of agreements of the description noted above. Section 3, Agra Pre-emption Act, inter alia provides that: No right of pre-emption shall be enforced in respect of any transfer made after the commencement of this Act of an interest in land in any area to which this Act applies, except in accordance with the provisions of this Act.

(3.) It is not diputed that the share sold to defendant 1 is in an area to which the Agra Pre-emption Act applies and it therefore follows that a right of pre-emption with respect to the sale in favour of defenant 1 could be enforced only in accordance with the provisions of the Act. Section 5(1) of the Act, exhaustively sets forth the circumstances in which a right of pre-emption can be deemed to exist. It runs as follows: A right of pre-emption shall be deemed to exist only in mahals or villages in respect of which the wajibularz prepared prior to the commencement of this Act records a custom, contract or declaration: (a) recognizing, conferring or declaring a right of pre-emption, expressly or by necessary implication, whatever its extent and in whatever form it may be expressed, or (b) imposing on a cosharer desiring to transfer his interest in land an obligation to offer in the first instance to another cosharer or to a relative, or (c) forbidding cosharers to transfer their interest in land to persons other than cosharers or relatives, and in mahals or villages in respect of which a right of pre-emption has been recognized by a final decree of a competent Court passed after contest prior to the commencement of this Act.