KUNDAN GIR Vs. JASWANT SINGH

JUDGEMENT

(1.) The facts of this case are briefly these. One Gulab Rai sold the property in suit to the appellant Kundan Gir on 24 August 1925 for the sum of Rs. 400. The respondent Chaudhri Jaswant Singh brought a suit for pre-emption. After the suit was filed Gulab Rai purported to make a gift of one kachwansi share of property in the same village in which the pre-empted property was situated, in favour of Kundan Gir. Having obtained this gift, Kundan Gir's contention is that he is in a position to defeat the claim of Jaswant Singh because Jaswant Singh has no better title than himself in the matter of purchase. The suit having succeeded in both the Courts below, this second appeal has been filed by the purchaser. In this Court, it is contended that in view of the Full Bench case of Ram Saran Das V/s. Bhagwati Prasad Section 19 is the section of the Pre-emption Act which applies to this case and the plaintiff cannot succeed. On the other hand, the case of Deonarain Singh V/s. Ajodhya Prasad is relied upon and it is contended that in order that the vendee may defeat the pre-emptor's claim the former should possess an "indefeasible" title to the property acquired by him, subsequently to the purchase of the property, sought to be pre-empted.

(2.) We have to decide whether we should follow the case in Deonarayan Singh V/s. Ajodhya Prasad or whether we should dissent from it, for if the case in Deo Narain Singh V/s. Ajodhya Prasad applies, the decrees of the Courts below are correct. There can be no doubt that the Full Bench case quoted above, held that Section 19 had substantially reproduced the law, as it stood before the Agra Preemption Act was enacted; but it is also certainly the case that the Full Bench had not to decide the exact point that is before us. In order to find out what was the meaning of Section 19, the learned Judges looked into the state of the previous law and considered whether that law had been departed from or not. In arriving at the conclusion already mentioned, the learned Judges had no occasion to consider what should be the character of the subsequent acquisition of property, by the vendee, so as to enable him to defeat the pre-emptors claim. That being the case, the Full Bench case of Ram Saran V/s. Bhagwati Prasad has no bearing on the case before us.

(3.) The Full Bench held that Section 20 did not apply where the vendee acquired property after the institution of the suit, and that to such a case Section 19 would apply. They decided nothing more. Mr. Malik has contended that Section 19 does not contain the word "indefeasible" which has been used in Section 20 and, therefore, it would not be right to bring in that word in the interpretation of Section 19. There is some force in this contention, but if we accept that contention, we shall be interpreting Secs.19 and 20 in a way which will make them entirely inconsistent, in principle. If we accept Mr. Malik's contention, we shall be holding that, while title, which is, itself, liable to be defeated, would be good enough to entail the dismissal of the pre-emptor's suit, if that title be acquired by the vendee after the institution of the pre-emption suit, but it would be of no avail to the vendee if the said title is acquired before the institution of the pre-emption suit. The language of Section 19 is as follows: No decree for pre-emption shall be passed in favour of any person, unless he has a substantial right of pre-emption at the date of the decree....