BHOLA NATH Vs. SHIV SINGH

JUDGEMENT

(1.) These are three connected second appeals brought by defendants (1) Bhola Nath and (2) Sri Thakur Radha Krishnaji Maharaj through Bhola Nath against the plaintiffs. The plaintiff brought three suits for pre-emption and those suits were dismissed by the trial Court but decreed by the lower Appellate Court. The suits were brought on the following three sale deeds by Nanhay, Dhandoo, Kundan and others in favour of Bhola Nath, appellant 1, and zamindari shares were sold in mahal Sookha of mauza Jagnair : (1) sale deed dated 22 May, 1933, for Rupees 400, (2) sale-deed dated 1 June 1933 for Rs. 200 and (3) sale deed dated 29th June 1933 for Rs. 200. The plaintiffs brought their three suits for pre-emption on 12 May 1934, against the vendee, Bhola Nath, who was admittedly a person who has no zamindari share in mauza Jagnair. The plaintiffs have zamindari shares in mauza Jagnair but in another mahal. The defendant Bhola Nath pleaded in his written statement that prior to the suit on 30 April 1934, ho had made a deed of gift of the three zamindari shares to appellant 2, the Thakurji, who is under his management and that the Thakurji is the owner of. a zamindari share in mahal liookha, mauza Tagnair, in which the three zamindari shares lie and therefore the suits wore not maintainable. The plaintiffs there-fore impleaded the idol as defendant 2 and Bhola Nath filed written statements on behalf of the idol that as the idol was impleaded after the expiry of one year from the dates of the sale- deeds, the suits were tune-barred. The plaintiff replied by pleading that the sale deed to the idol was fictitiously antedated and that the real date of that sale deed was the date of registration, 19 May 1934, and therefore as the sale flood was executed during the pendency of the suits, the sale deed could not affect the rights of the plaintiffs as provided by Section 52, Transfer of Property Act. In the Courts below the cases was contended on the question of fact as to whether the sale deed in favour of the idol was during the pendency of the suit or prior to the suit. On that question of fact the trial Court held that the sale deed was prior to the suits and dismissed the suits and the lower Appellate Court has held that the sale deed was executed during the pendency of the suits and has decreed the suits for pre-emption. When the second appeals were filed in this Court, it was this question of fact which was contended, and some other points were raised.

(2.) Mr. Dar on behalf of the appellants did not argue any of these grounds but he argued the appeals on the ground that assuming the finding of the Court below that the sale deed by Bhola Nath to the Thakurji was executed during the pendency of the suit, still the plaintiffs had no right to pre-empt. He based his case on certain rulings and his point was that the transfer had been made to a cosharer, the Thakurji, who had a superior right of pre-emption to the plaintiffs as the Thakurji had a share in the same mahal as the vendors and the plaintiffs had a share in the same village hut in another mahal. He asserted that for these reasons the plaintiffs had no longer a subsisting right of pre-emption as soon as the deed of gift was made and that as this has taken place before the decree of the trial Court, the plaintiffs therefore were not entitled to a decree for pre-emption. Learned Counsel for the appellants has relied on the following rulings. In Manpal v. Sahib Ram (1905) 27 All. 544 there was a Full Bench ruling in the year 1905 in which this question was raised under the customary law of preemption which was then in force in these provinces. But the question was decided on the pleadings in that particular suit as is shown on p. 548. On p. 547 their Lordships observed: It is unnecessary in this view of the case to consider the difficult question which arises upon the construction of Section 52 (T.P. Act) and we abstain from offering any opinion upon that question.

(3.) After this ruling there was the Agra Pre-emption Act passed (Act 11 of 1922), which came into force with the sanction of the Governor-General on 2nd February 1923. This Act is stated to be "an Act to consolidate and amend the law relating to pre-emption in the Province of Agra." Secs.19 and 20 of this Act originally provided as follows: 19. No decree for pre-emption shall he passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree, but where a decree for pre-emption has been passed in favour of a plaintiff, whether by a Court of first instance or of appeal, the right of such plaintiff shall not be affected by any transfer or loss of his interest occurring after the date of such decree. 20. No suit for pre-emption shall lie where the purchaser has, prior to the institution of such suit, transferred the property in dispute to a per- son, having a right of pre-emption equal or superior to that of the plaintiff, or has acquired an indefeasible interest in the mahal which if existing at the date of the sale or foreclosure would have barred the suit.