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Kamta Prasad Misir v. Chait Narain Singh
Factual and Procedural Background
This appeal arises from a suit for pre-emption involving property sold by Bans Gopal to Chet Narain on 24th August 1928. Two suits for pre-emption were filed: Suit No. 435 of 1929 by Kamta Prasad and his son Chandi Prasad, and Suit No. 436 of 1929 by Beni Madho (represented by respondent No. 3). Both suits were heard together. The trial Court held the total consideration was Rs. 1,500 and decreed each suit for half share of the property, directing the plaintiffs to deposit their respective shares of the purchase money within thirty days. Appeals were filed by the plaintiffs in both suits. Beni Madho’s appeal was dismissed for default, while Kamta Prasad and Chandi Prasad’s appeal was dismissed on merits, holding them bound by their pleader’s statement that they were entitled to only half the property and confirming the consideration of Rs. 1,500.
Kamta Prasad and Chandi Prasad have now appealed, challenging the division of the property share between them and seeking an extension of time to pay the purchase money. The respondent contends that the appellants’ failure to deposit the purchase money renders their appeal non-maintainable.
Legal Issues Presented
- Whether the appeal by the plaintiffs who have not deposited the purchase money can be entertained when they challenge the correctness of the price fixed by the lower Court.
- Whether Kamta Prasad and Chandi Prasad, being members of a joint Hindu family, should be treated as one pre-emptor entitled to one-half share or as two separate pre-emptors entitled to two-thirds share of the property.
- Whether the statement of the plaintiffs’ pleader regarding their share is binding on the plaintiffs.
- Whether the lower appellate Court should have extended the time for payment of the purchase money.
Arguments of the Parties
Appellants' Arguments
- Kamta Prasad and Chandi Prasad contend that they are entitled to pre-empt two-thirds of the property, not merely one-half as held by the lower Courts.
- They argue that the statement of their pleader limiting their claim to one-half share does not bind them.
- They seek an extension of time to deposit the purchase money.
- They rely on precedent that a plaintiff pre-emptor’s appeal challenging the price is maintainable even if the purchase money has not been deposited.
Respondent's Arguments
- The respondent contends that since the appellants have not deposited the purchase money as directed, their suit stands dismissed and the appeal is not maintainable.
- They rely on cases involving execution proceedings to argue that late payment does not entitle the appellants to maintain the appeal or execute the decree.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jhandi Lal v. Shiam Lal | Where a plaintiff pre-emptor appeals and challenges the correctness of the price fixed, the appeal is not liable to be dismissed for non-deposit of purchase money. | Supported the appellants’ contention that non-payment of purchase price is not a bar to hearing the appeal. |
| Khurshedunnissa v. Alimunnissa | Same principle as in Jhandi Lal v. Shiam Lal regarding appeal maintainability despite non-deposit of purchase money. | Reinforced the position that appellants are not bound to deposit the purchase money before appeal hearing when challenging price. |
| Jaggar Nath Pande v. Jokhu Tiwari | Discussed appeal and execution proceedings; a plaintiff can appeal within limitation period even if payment was not made on time; appellate Court may extend time for payment. | Found not directly applicable but some remarks supported appellants’ position on appeal maintainability and extension of time. |
| Hidey Narain v. Alam Singh | Late payment of purchase money does not entitle plaintiff to execute decree. | Distinguished as a case on execution proceedings, not relevant to appeal maintainability on price challenge. |
| Umrao Singh v. Kanwal | Where no extension of time given, late payment does not entitle recovery of possession. | Not relevant to appeal maintainability question; concerned execution and possession recovery. |
Court's Reasoning and Analysis
The Court first addressed the preliminary issue of whether the appeal was maintainable given the appellants’ failure to deposit the purchase money. The Court relied on precedents Jhandi Lal v. Shiam Lal and Khurshedunnissa v. Alimunnissa, which held that a plaintiff pre-emptor challenging the correctness of the price fixed by the lower Court is not barred from appealing for non-payment of the price. The Court distinguished cases cited by the respondent as arising from execution proceedings, which do not govern the present appeal.
On the merits, the Court examined whether Kamta Prasad and Chandi Prasad should be treated as one pre-emptor or two separate co-sharers under the Agra Pre-emption Act of 1922. The Court interpreted the Act’s definition of co-sharer to include individual members of a joint Hindu family as separate owners, noting that the Act does not mention joint Hindu families as a single owner for pre-emption purposes. Consequently, the appellants are entitled to pre-empt two-thirds of the property, corresponding to their individual shares, rather than one-half as a single claimant.
Regarding the pleader’s statement that the appellants were entitled to only half the property, the Court found it was an expression of legal opinion rather than a binding admission or a request to limit the decree. Since the appellants later challenged this statement on appeal, they are not bound by it.
The Court granted the appellants sixty days to deposit Rs. 1,000 (two-thirds of Rs. 1,500) as purchase money, failing which their suit would be dismissed with costs. It also adjusted the share of Beni Madho accordingly to one-third.
Holding and Implications
Appeal allowed.
The Court held that Kamta Prasad and Chandi Prasad are entitled to pre-empt two-thirds of the property as separate co-sharers under the Agra Pre-emption Act, overruling the lower Courts’ finding that they were entitled to only one-half as a single claimant. The appeal is maintainable despite non-payment of the purchase money, and the appellants are granted sixty days to deposit Rs. 1,000. Failure to deposit will result in dismissal of their suit and costs. The share of the other claimant, Beni Madho, is correspondingly reduced to one-third.
No new precedent beyond the application of existing principles was established. The decision directly affects the parties by reallocating the shares of the property and clarifying the treatment of joint Hindu family members as separate co-sharers for pre-emption rights.
1. This appeal arises out of a suit for preemption which was tried with another suit for the same purpose in the following circumstances: Bans Gopal sold to Chet Narain, the respondent No. 1 in this Court, certain amount of property on 24th of August 1928. Thereupon, two suits were filed to preempt the said property. Kamta Prasad and his son Chandi Prasad filed suit No. 435 of 1929 and Beni Madho, whose legal representative is one of the respondents in this appeal, filed suit No. 436 of 1929 also for pre-emption. The suits were heard together. The learned Munsif held that the total consideration was Rs. 1,500 and that the plaintiffs in both the suits were of equal status and were entitled to preempt, as against Chet Narain. On the question whether Kamta Prasad and Chandi Prasad were entitled to be treated as two pre-emptors or as only one pre-emptor for the purpose of division of property among the pre-emptors, the counsel for the plaintiffs in suit No. 435 stated that
“as Kamta Prasad and Chandi Prasad formed a joint Hindu family, they were entitled to one-half of the property.”
2. The Court accordingly directed that both the suits should be decreed each for half a share. It gave the plain tiffs of each suit thirty days' time to deposit one half of the purchase money and directed that in case one party failed to deposit his share of the purchase money, the other party would be entitled to deposit the same within thirty days of the expiry of the time originally granted. The plaintiffs of both the suits filed appeals, and there was a cross-objection filed by the plaintiff in at least one of the appeals. Kamta Prasad and his son Chandi Prasad's appeal was numbered as 202 of 1930 and Beni Madho's appeal was numbered as 240 of 1930. Kamta Prasad and his son Chandi Prasad contended in their appeal that as between them father and son they were entitled to pre-empt two-thirds of the property and that the statement of the prodder did not bind them. They also impugned the finding that the total consideration was Rs. 1,500 as found by the Court of first instance. Beni Madho's appeal was dismissed for default of prosecution. The appeal of Kamta Prasad and Chandi Prasad, who are the appellants before this Court, was also dismissed on the merits. It was held that the plaintiffs were bound by the statement of their pleader as to the amount of share to be pre-empted by them and that the sale consideration was Rs. 1,500. In the result the appeal and the plaintiffs' cross-objection were both dismissed.
3. Kamta Prasad and his son Chandi Prasad have appealed and they contend that as between them they were entitled to pre-empt two-thirds of the property and not merely one-half. They further contend that the lower appellate Court should have extended the time to pay the purchase money. On behalf of the respondent Chet Narain it has been contended that the appellants, not having made any deposit of the purchase money so far, their suit stood dismissed and the appeal is not maintainable. A preliminary point, therefore, arises for determination and it is this. Whether in the circumstances of this case the appeal should not be heard? The learned counsel for the appellant has cited two cases which are directly in point, namely Jhandi Lal v. Shiam Lal(1) and Khurshedunnissa v. Alimuiinissa(2). The case in Jhandi Lal v. Shiam Lal followed the case in Khur shedunnissa v. Alimunnissa. Both the cases laid down that where a plaintiff pre-emptor appeals and impugns the correctness of the price found by the lower Court, his appeal is not liable to be dismissed on the ground that he has not complied with the decree of the Court of first instance by depositing the price.
4. On behalf of the respondent 1, three cases have been cited. The first case is Jaggar Nath Pande v. Jokhu Tiwari(3), being a decision of three learned Judges of this Court. This case arose out of execution proceedings, and the learned Judges were not called upon to decide the question that I have to decide in this case. Indeed, some remarks made in this case support the decision in the two cases cited on behalf of the appellants. The remarks would be found at p. 226. They are as follows:
“Now there is no doubt that a plaintiff who has obtained a decree under Section 214 of the CPC, can appeal within the period prescribed by the Limitation Act 1877, for his appeal, whether or not be has made the payment on or before the day fixed, and on his appeal the appellate Court, if it see fit so to do, may extend the time within which the pre-emptive price is to be paid and fix a day itself.”
5. What had happened in the case before the learned Judges was that the plaintiff never deposited the money and there was no extension of time by the Court of appeal. The appeal itself had been filed not by the plaintiff but by the defendant. Yet the plaintiff having deposited the money after the period fixed had expired, sought execution of the decree on payment and his application was allowed by the Court below. The High Court allowed the appeal and, dismissed his application for execution. It will be noticed that although this was a Full Bench case decided so far back as in 1896, it was never cited as an authority before the Benches which decided the cases in Jhandi Lal v. Shiam Lal and Khurshcdunnissa v. Alimunnissa.
6. The next case relied on by the respondent's counsel is Hidey Narain v. Alam Singh(4). The learned Judges who decided the case were the same as decided the case of Khurshedunnissa v. Alimunnissa, relied on by the appellant's counsel. This case in 16 Allahabad Law Journal was again a case that arose out of execution of decree, and all that was held was that a late payment by the plaintiff of the purchase money did not entitle him to execute the decree.
7. The last case was decided by a Bench of which I was a member and is that of Umrao Singh v. Kanwal (A.I.R 1933 All p. 113). There were two appeals before this Court One arose out of the suit and the other from execution proceedings. In that case what had happenad was that there was no extension of time by the lower appellate Court, and yet the plaintiff sought to recover possession of the property on payment made beyond the time fixed for payment by the Court of first instance. This case again is not relevant. What I have to decide is whether a plaintiff, who does not accept the correctness of the finding as to the preemptive price and has not paid it, is bound to pay the decretal amount in accordance with the terms of the first Court as a condition precedent to the hearing of this appeal. That question must be answered in the negative as it was answered in the two cases cited on behalf of the appellants.
8. On the merits, the question is whether the two plaintiffs, father and son, are to be treated as two claimants for pre-emption, or whether as one because the family is joint. As a question connected with this I have to find whether the statement of the pleader recorded at p. 42 C of the record amounted merely to an admission on a point of law which is not binding on the plaintiff or whether it amounted to a request to the Court that whatever might be the legal title, of the plaintiffs, they would be satisfied if a decree was made for one half of the property in favour of the two plaintiffs.
9. I have read the original statement in vernacular, and my opinion clearly is that it was a mere statement of the opinion of the learned counsel for the father and son as to the share they were in law entitled to. If the statement was meant to be a request to the Court to confine the decree in plaintiffs' favour to a half share, it would not have been necessary for the plaintiffs' pleader to give his reasons for the request. Evidently the learned Munsif was not certain as to how much the plaintiffs were entitled to, and the plaintiffs' pleader conceded that the two plaintiffs being father and son and being members of the joint Hindu family, were entitled to one half only being treated as one claimant. The plaintiffs did not accept this position and impugned the statement of the pleader in their appeal to the lower appellate Court. If it had been a request of the plaintiffs' pleader, there would have been no question of dissatisfaction with the statement. The language of the pleader indicates that what he stated was an expression of his opinion. It is none the less an expression of the pleader's opinion, although the Munsif thought that it relieved him from the necessity of deciding the point. I hold that the plaintiffs are not bound by the statement of their pleader.
10. Now the question is whether the plaintiffs are enticed to pre-empt one half or two-thirds. The claim for pre-emption is based on the Agra Pre-emption Act of 1922. The right to pre-empt is given to co-shares (S. 12). By S. 4, clause (1), a co-sharer means any person other than a petty proprietor entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors. Every member of a joint Hindu family owning property is as much an owner of the property as any other member of the same, even though the latter be the father of the family. A joint Hindu family consists of several owners so far as the outside world is concerned. The fact that they form a joint Hindu family, indicates only this that for certain purposes they prefer to live together and enjoy property together. In matters of representation very often the head of the family represents not only himself but the rest of the family. But there is nothing in the constitution of a Hindu joint family which enables one to say that they are not owners of property. In this view, each member of a joint Hindu family would be a co-sharer within, the meaning of Section 4 of the Agra Pre-emption Act. It is important to notice that the Agra Pre-emption Act does not mention anywhere a joint Hindu family and gives no indication that the people, who form a joint Hindu family, are to be treated as a single person for the purposes of pre-emption. In this view, there is nothing to bar the right of the present appellants to claim two-thirds of the property where one more person has claimed the right of pre-emption. As between the two appellants before me they claimed the whole property for themselves. If by reason of the fact that there is a third claimant to the property, their share is to be cut down, there is no equity in favour of the third person which would compel us to hold that the two plaintiff appellants in this case are to be treated as one person and as not two persons. The point is really so simple that it does not require any further consideration. I hold that the appellants are entitled to preempt two-thirds of the property sold as against the vendee and Beni Madho or the latter's representative in interest, respondent No. 3.
11. The result is that the appeal succeeds and I direct that on condition of payment of Rs. 1,000, being two-thirds of the entire consideration money found by the Courts below, the appellants' claim do stand decreed for two thirds of the property claimed by them. I allow sixty days' for payment. In case of failure to pay, the suit of the appellants will stand dismissed with proportionate costs throughout. The appellants having succeeded in respect of two-thirds share, the claim of Beni Madho, who is now represented by the respondent No. 3, is reduced to a third share in the property. The respondent No. 1 will pay his own costs throughout, except in the case of, the failure of the appellants to pay the sum of Rs. 1,000 within the time allowed, in which case, as already directed, the respondent No. 1 will have his costs throughout. The affidavit, which has been filed on behalf of the respondent No. 1, indicates that Beni Madho has already deposited the sum of Rs. 750 within the period limited by the decree of the Court of first instance. In case it turns out that he has made no deposit, the appellants will be entitled to pay the sum of Rs. 500 over and above the sum of Rs. 1,000 mentioned above within sixty days of this date. In case of their failure to make this additional deposit, the whole suit will stand dismissed with costs.
B.M
12. Appeal allowed.
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