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HIGH COURT OF RAJASTHAN
RANAWAT, SHARMA, JJ.
Gopichand and Prabhu Dayal
Versus
Meenalal
Second Appeal Nos. 24, 44 and 45 of 1949,
Decided On : 24-07-1951
PRE-EMPTION - RIGHT OF PRE-EMPTION - ACQUISITION OF PROPERTY BY VENDEE AFTER SALE - EFFECT ON RIGHT OF PRE-EMPTION - VENDOR BECOMING CO-SHARER WITH PRE-EMPTOR BEFORE DECREE - NO PREFERENCE TO PRE-EMPTOR.
Fact of the Case:
Two suits for pre-emption of a property sold by Hanuman Prashad to Mina Lal were filed by Prabhoo Dayal and Gopichand, claiming preferential rights as co-sharers, participators in immunities and appendages, and owners of adjoining immovable property. The vendee denied their right to pre-empt and asserted his own preferential right. The trial court dismissed the suits for properties X and Y, finding that the vendee had adjoining houses and joint walls with these properties, but decreed the suits for properties A and B to the extent of one-half each, as the pre-emptors had adjacent properties with joint walls. On appeal, the District Judge dismissed the vendee's appeals and partly allowed the pre-emptors' appeals, granting them full decrees for properties A and B, respectively, upon payment of additional sums. The vendee and the second pre-emptor appealed to the High Court.
Finding of the Court:
The High Court held that the vendee's purchase of property C after the disputed sale did not confer upon him any right of pre-emption, as the right arises from ownership, not possession as a mortgagee. However, the vendee became a co-sharer in the disputed property before the suit was brought and the decree of the first court was passed, due to the joint wall between property C and the disputed property B. Therefore, he was equally entitled to pre-emption with the second pre-emptor. Similarly, the vendee and the first pre-emptor had joint walls between their properties and the disputed property A, making them equally entitled. The court rejected the argument that the vendee's acquisition of property C after the sale would not help him, as pre-emption rights should be determined at the date of sale. The court reasoned that pre-emption is a weak right that can be defeated by legitimate means, and that allowing the vendee to become a co-sharer before the first court's decree would not result in a stranger thrusting himself upon the co-sharers against their will.
Issues: 1. Whether the vendee's purchase of property C after the disputed sale conferred upon him any right of pre-emption. 2. Whether the vendee's status as a co-sharer in the disputed property before the suit and the first court's decree gave him equal entitlement to pre-emption with the pre-emptors. 3. Whether the pre-emptor's right to pre-emption is defeated by the vendee's acquisition of property C after the sale.
Ratio Decidendi: 1. The right of pre-emption arises from ownership, not possession as a mortgagee. 2. A vendee who becomes a co-sharer in the disputed property before the suit is brought and the first court's decree is passed is equally entitled to pre-emption with the pre-emptors, as the policy of pre-emption is to prevent strangers from becoming sharers in a village. 3. The pre-emptor's right to pre-emption can be defeated if the vendee acquires equal status with the pre-emptor between the date of sale and the date of the first court's decree.
Final Decision: The High Court dismissed the appeal of the second pre-emptor and allowed the two appeals of the vendee. The decree of the lower appellate court was modified, and the decree of the original court was restored. The vendee was awarded the costs of all three appeals from the contesting pre-emptors.
SHARMA, J. :- These are three appeals which arise out of two suits for pre-emption of a property situated in Chowkri Bisheshwarji Rasta Gopalji Jaipur City sold by Hanuman Prashad defendant in favour of Mina Lal (hereinafter to be called the vendee) as per sale-deed, dated 7th December 1942 and registered on 16th June, 1943. One of the suits namely 149 of St. 2,000 was filed by Prabhoo Dayal who hereinafter will be referred to as the first pre-emptor and the other that is 150 of St. 2000 was filed by Gopichand who will hereinafter be referred to as the second pre-emptor. Both the suits were filed in the Court of City Sub-Judge, Jaipur on the 1st July, 1944. The sale consideration was Rs. 2,599/- and the property sold is represented by letters A and B on the ground floor and letters Y and X on the second and third floor respectively in the sketch map Ex. A-3 filed in the suit No. 160 and is coloured red. It is the part of a big Haveli.
2. The claim of each of the pre-emptors is that he has preferential right as compared to the vendee on account of being co-sharer in the property, participator in immunities and appendages and owners of adjoining immoveable property.
3. The vendee denied both the pre-emptors right to pre-empt and asserted that he himself had the preferential right as compared to the pre-emptors.
4. The learned Sub-Judge dismissed the suits of both the pre-emptors so fur as properties X and Y are concerned holding that the vendee had is houses adjoining these two properties on the north and the walls between these two disputed properties on one side and the property of the vendee on the other were joint. This property of the vendee is shown in Ex. A 3 in yellow colour and is marked M and N. He also gave an additional ground for dismissal of the suit with respect to property Y that property K adjoining towards south belonged to the vendee and had a joint wall and stair case with property Y. He however, decreed first pre-emptors suit with respect to property A and the second pre-emptors suit with respect to property B to the extent of one-half each on the ground that they had their properties adjacent to these properties and the walls between them were joint. He dismissed the suits with respect to these two properties to the extent of other half holding that property C shown in Ex. A 3 had been purchased by the vendee after the sale-deed in dispute and the said property had joint walls with properties A and B.
5. Against this decree of the learned Sub-Judge the vendee filed 2 appeals contending that the two pre-emptors ought not to have been given a decree to the extent of half in the properties A and B. Each of the pre-emptors also filed an appeal contending that his suit should have been decreed in full. The learned District Judge, after hearing all these appeals disposed them of by one judgment, dated 23rd March, 1948. He dismissed both the appeals of the vendee and partly allowed the appeals of the pre-emptors inasmuch as the 1st pre-emptor was given a decree for the whole of the property A on payment of an additional sum of Rs. 137/9/- and the second pre-emptor was given a decree for the whole of property B on payment of an additional sum of Rs. 281/4/. The reason for this modification of the decree as given by the learned District Judge is that the purchase of property C by the vendee after the disputed sale conferred upon him no right of pre-emption.
6. The second pre-emptor and the vendee have come in second appeal to this Court. Two appeals Nos. 44 and 45 of 1949 have been filed by the vendee in suits Nos. 149 and 150 respectively while the second pre-emptor has filed appeal No. 24 of 1949 in suit No. 150 of St. 2000. We have heard all the 3 appeals and they can be disposed of by one single judgment.
7. Taking up the appeal of the second pre-emptor first, his learned counsel did not challenge the lower Courts finding so far as property X was concerned. His only argument was that this pre-emptor should ha
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