LAWS(PVC)-1929-2-202

BASIRA BIBI Vs. SHEIKH ATA ULLAH

Decided On February 27, 1929
BASIRA BIBI Appellant
V/S
SHEIKH ATA ULLAH Respondents

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The only ground on which the suit has been dismissed is that the plaintiff refused to make the purchase before the sale-deed. The evidence led by the defendant indicated the refusals on two occasions. A month prior to the sale deed it was stated that the vendee had declined to make the purchase unless the vendor's sister, the present plaintiff, agreed that she would not pre-empt the property. The parties went to the village where the plaintiff is stated to have said that she would not pre-empt the property and that it might be sold to the vendee. The evidence does not go on to show fully that at that time the exact extent of the vendor's share or the exact price at which the transaction was settled had been disclosed to the lady. The other occasion was when the sale-deed was registered. She was brought in person to the registration office. She attested the sale-deed and put her thumb mark on it. It is, however, a fact that in the sale deed the price mentioned was Rs. 1,500 whereas at the trial the vendee had to admit that the true consideration was only Rs. 1,250.

(2.) The first Court found that there was no refusal on her part. The learned District Judge has found that there was an absolute refusal on her part which estopped her. If the refusal had rested merely on her attestation of the sale deed I would have had considerable difficulty in accepting the finding that it amounted to an estoppel. The price put down in the sale-deed was an inflated price. The refusal to purchase the property at that price cannot be deemed to be also a refusal to purchase it at a lower price. But the learned District Judge has believed the oral evidence as regards the instances which happened in the village prior to the execution of the sale-deed.

(3.) No doubt in some earlier cases, Subhagi V/s. Mohammad Ishaq [1884] 6 All. 463, Kanhi Lal V/s. Kalka Prasad [1905] 27 All. 670 and Munawar Husain V/s. Khadim Ali [1908] 5 A.L.J. 331 it was laid down that before there could be a final refusal there must be a definite contract entered into with the purchaser as regards the specific share of the property and its definite sale price. It seems to me, however, that there may be a personal estoppel against the pre-emptor which under Section 115, Evidence Act, would preclude her from pre-empting. It must be conceded that Secs.14 and 15, Agra Pre-emption Act, do not lay down in an exhaustive manner the principles of estoppel applicable to a pre-emption suit: Ranjit Singh v. Bhagwati Singh . If a pre-emptor has previously expressed her clear intention not to pre-empt the property on any account and has waived her objection in unequivocal language to the property being sold to the vendee I would hold that she would be estopped personally from pre-empting afterwards, even though the exact share or price at which it was going to be sold was not mentioned to her. It was her duty before she spoke in an unconditional manner to find out the price of the transaction in case she was making any mental reservation in her favour. One is entitled to say that the vendee's position has been compromised and that he has been led to purchase the property on account of the conduct of the plaintiff, and her admission precludes her from suing. I would therefore accept the finding of the learned District Judge and dismiss the appeal. Sen, J.