MOHIB ALI KHAN Vs. BALDEO PRASHAD

JUDGEMENT

(1.) This is a second appeal by a plaintiff whose suit for pre-emption has been dismissed by the two lower Courts. The suit was brought in regard to a sale deed dated 25 November 1932 executed by defendant 3, Hira Lal, in favour of defendant 1, Baldeo Prasad, who is a co-sharer in the village, and defendant 2, Ram Chandra, who is not a cosharer. The son of Baldeo Prasad is married to the sister of Ram Chandra. The sale deed was for certain property of which one quarter was sold-jointly to defendants 1 and 2 for Rs. 3750 as set out in the sale deed, and the remaining three, fourths to other persons. The plaintiff was about to bring a suit for pre-emption which was actually filed on 25 November 1933 although it was not registered until a later date, 25 February 1935. A deed of gift was executed by defendant 1 to defendant 2 of a minute share of the zamindari with a revenue of Rs. 1-8-0 stated to be worth Rs. 45, bearing the date 30 October 1933 and registered on 18 December 1933. It was contended that the date of the deed was not correct and that it was really executed after the suit was filed, but the Courts below have found that the date of the deed of gift, 30th October 1933, was the correct date of execution. The claim of the plaintiff was that as the sale deed was in favour of two persons jointly against one of whom only there was a right of pre-emption, namely defendant 2, then the right might be claimed against both under Section 22, Agra Preemption Act, 11 of 1922. The claim of the defence was that defendant 2 had acquired an indefeasible interest in the mahal prior to the institution of the suit by the execution of the deed of gift of a small share in his favour. In regard to this defence which has been accepted by the Courts below, the appellant brings forward two points. Firstly, that Section 20 cannot be applied to a person who comes under Section 22, and secondly, that as the deed of gift was by Baldeo Prasad, the manager of a joint Hindu family, the deed of gift is liable to be defeated by a suit brought by other members of the family, one of whom at least, a grandson is a minor and therefore the interest acquired under it is not an indefeasible interest in the mahal within the meaning of the second part of Section 20.

(2.) As regards the first point learned Counsel for the respondents relies on a ruling Badri Pandey V/s. Parsotam Singh . In that case there was a suit for pre- emption of a sale deed in favour of defendants 2 and 3 who were brothers and defendant 3 was a recorded cosharer and defendant 2 was not a recorded cosharer. Before the suit was brought, defendant 2 transferred his interest in the sale deed to defendant 3. A Bench of this Court held that the first part of Section 20, Pre-emption Act, applied although the claim of the plaintiff was brought under Section 22, Preemption Act, and therefore the claim could not be decreed. This ruling is an authority for the proposition that Section 20 can be applied as a defence in a suit brought relying on Section 22. No authority to the contrary has been shown. We consider that there is nothing in the wording of Section 22 which indicates that other provisions of Chap. 4 in which it occurs are not to be applied. The language of Section 22 is merely as follows: Where property is jointly purchased or foreclosed lay two persons against one of whom only there is a right of pre-emption, such right may be claimed as against both.

(3.) The wording in this Section is that a right "may be claimed." The Section does not say that a decree may be granted or shall be granted. Obviously, the wording of Section 22 leaves it open to the defence to take advantage of any defence which may be brought under any portion of the Preemption Act. We consider therefore that the defence of Section 20 is not technically barred in the case of a suit brought under Section 22.