BALAJI Vs. BALKRISHNA

JUDGEMENT

(1.) MACNAIR , A.J.C. 1. The main ground urged before me is that the defendants' father Vishwanath, although a trustee of the plaintiff, was not bound to pre empt certain lands on behalf of the plaintiff Vishwanath purchased several fields for Rs. 2,200 under a registered deed of sale dated 17th June 1918. The plaintiff had a right of pre-emption with regard to one of the fields, but the defendants' father who was his trustee did not exercise this right of pre-emption on his behalf. The learned Additional District Judge has held that, as the plot in dispute adjoins a plot of the plaintiff and both are recorded as parts of one field, it was convenient and desirable that the plaintiff should pre-empt the plot in dispute and it was therefore obligatory on the trustee to have acquired the land as a man of ordinary prudence would have done so. The suit was dismissed in the trial Court. The learned Additional District Judge, remanded the case for a finding whether the plaintiff's financial position was such that he could in the period allowed for pre-emption have made the purchase from his surplus funds The Judge has ad led that even if he could not, it might have been advisable for Vishwanath to borrow in order to effect the purchase.

(2.) NOW , in my opinion, it cannot be said that it is always advisable for a person in possession of land to purchase neighbouring land when it comes into the market. There is a finding by the lower appellate Court that Vishwanath paid a full price for the land he purchased. The learned Judge of first appeal has referred to a Lahore case Partab Singh v. Hakim Singh A.I.R. 1923 Lah. 480. I do not think that ruling has much application to the facts of the present case. In the Punjab it may be desirable not to allow a stranger to the village to purchase land therein, the ground presumably being that such purchase might prevent peaceable enjoyment of the neighbouring lands. In the present case there was no reason to think that the plaintiff's enjoyment of his plot would be prejudiced by the possession by a relation of the plaintiff of a neighbouring plot. In Shankar Sahai v. Rechu Rarn , it was held that, where there was no evidence that the pre-emption of neighbouring plot was required for the protection of the estate already held, the purchase could not possibly be regarded as a benefit to the estate or a legal necessity. Again, there were clearly reasons why it would not have been been prudent for Vishwanath as trustee to purchase the land for himself as owner. The plaintiff in this suit has said that Rs. 850 was the proper price, while the learned appellate Judge gives finding which show that Rs. 1,000 should have been paid. I can see no reason why it was the duty of Vishwanath to purchase for the plaintiff land, for which a full price had to be paid, merely because the plaintiff had an option of purchase and the land adjoined a field of the plaintiff. It was for the plaintiff to show that the defendant committed a breach of duty in failing to purchase the field. He has not shown that he had large surplus sums, investment of which was eminently desirable: he has not shown that the purchase of the trustee was likely to be challenged on the ground that an excess price had been paid. I thorefore set aside the order of the lower appellate Court and restore the order of the original Court. Costs in all Courts will be borne by the respondent. Counsel's fee in this Court Rs. 75.