THAN SINGH Vs. LAKHAPAT SINGH

JUDGEMENT

(1.) The sole point for determination in this second appeal is whether on a true interpretation of the provisions of the Agra Pre-emption Act, 1922, a right of pre- emption accrues on the basis of a sale deed executed by the Collector in pursuance of the provisions Section 28, U.P. Encumbered Estates Act, 1934.

(2.) The facts are undisputed. One Mt. Um-mat-uz-zohra Begam was the owner of the disputed property which was mortgaged to the ? defendants. She made an application to the Collector under Section 4, Encumbered Estates Act. In due course, the Collector forwarded the application to the Special Judge. On 3-6-1939, the "Special Judge passed a decree under Section 11 of the Act. This was followed by decrees for money in favour of creditors under Section 14 of the Act. The Special Judge then sent the decrees under Section 19 of the Act to the Collector for execution in accordance with the provisions of chapter V of the Act. The Collector proceeded under Chapter V. He made an award which became final on 9- 4-1942. Acting under Section 28, Encumbered Estates Act, he ordered that the unprotected property of the debtor should be sold. The sale deed was accordingly executed by him on 81-7-1943, in favour of the defendants. It is this sale on the basis of which the plaintiffs-appellants brought the suit for pre-emption.

(3.) After the award of the Collector had become final and the instalment value of the debtor's property had been determined, she deposit, ed the total amount of the instalments which she had to pay under the award and the protected property was released. She then executed three sale deeds on 16-6-1943, which were registered on 19-6-1943, in favour of the plaintiffs. It will be noted that these sales were prior to the one in dispute by about six weeks. Under these sale deeds the plaintiffs had become cosharers in the Mahal and there is no dispute that they would have the right of pre-emption if not prohibited by the Agra Pre-emption Act.