SOMESHWAR RAJARAM LINGHE Vs. PANNALAL BIRDICHAND MEHESARI

JUDGEMENT

(1.) THIS is an application in revision against an order in a pre-emption suit that the sons of the vendor are not necessary parties and should be discharged from the suit.

(2.) THE plaintiff is a co-occupant of survey No. 111, of mauza Shendurjana. Another portion of this survey number described as 111/1 has been transferred by Balkrishna defendant 2, to Pannalal defendant 1, who has given his field survey No. 65/2 in exchange to Balkrishna and has also paid a sum of Rs. 2500 in cash. Balkrishna has made this transfer in his capacity as manager of the joint family consisting of himself and his sons: field No. 111/1 being ancestral property in his hands. The plaintiff made Balkrishna's three sons defendants 3-5 parties to the suit for pre-emption on an allegation that he being a stranger was not aware of the real state of affairs of the defendants' family and did not know if the transfer would be binding on the sons of defendant 2. He claimed to pre-empt field No. 111/1, if it was found that defendant 1, had tried to convey the whole of it and the trans, action was binding on defendants

(3.) IT is contended for the plaintiff-applicant that the sons of Balkrishna as members of a joint family were co-occupants in the field. That is no doubt correct in view of the definition of 'occupant' in Section 173, Berar Land Revenue Code. But the transfer upon which the plaintiff bases his claim for pre-emption has not been effected by the sons. It has been effected by the father Balkrishna alone and in a suit for pre-emption proper parties are only the vendor and the vendee. If the sons had claimed a right of pre-emption against their father on the ground that they were co-occupants of the field transferred they could also join in the suit and claim that the transfer was not in fact binding on them because it was not for legal necessity. In Rambhau v. Ganesh A.I.R. (35) 1948 Nag. 32 the plaintiffs claimed that the vendor had no right to make a transfer and the plaintiffs were therefore entitled to possession unconditionally and if it was found that the transfer was good for legal necessity then they had a right to pre-empt as co-occupants of the field.