Mir Mohd. vs Mehta Bhagwan Das and Another

K.V. Gopalakrishnan Nair, J.—This second appeal arises out of a suit for pre-emption instituted by the appellant against the Respondents in

the Court of Subordinate Judge at Poonch.

Two brothers, Chand Lal and Bhimsen executed a sale deed dated 26th March, 1958 in favour of Mir Mohd. (first Respondent) and one

Abdul Karim. Each of the vendors purported to sell his own separate property: land of an extent of 6 kanals and 5 marlas which belonged to

Chand Lal was sold by him to Mir Mohd., and a parcel of land measuring 4 kanals and 4 marlas which was owned by Bhimsen was sold to Abdul

Karim.

Although different parcels of land were sold by two different vendors to two different vendees, the transactions were embodied in a single sale

deed and the sale price was stated to be a consolidated sum of Rs. 2,500/-. The plaintiff, Bhagwan Das who is a brother of the vendors brought a

suit to pre-empt the sale of 6 kanals and 5 marlas of land by Chand Lal to Mir Mohd. The defendant, Mir Mohd., pleaded, inter alia, that the suit

was not maintainable, being one for partial pre-emption.

The trial Court tried this as a preliminary issue and came to the conclusion that the suit was incompetent as it was one for partial preemption. It,

therefore, dismissed the suit. On appeal to the Addl. District Judge at Poonch, the decision of the trial Court was reversed on the finding that the

suit was not for partial pre-emption. Mir Mohd., the vendee-defendant, has now come up in second appeal challenging the correctness and validity

of the decision of the Addl. District Judge.

The only question that falls for determination in this appeal is whether the suit is hit by the rule against partial pre-emption. A right of pre-emption

is not a right of re-purchase either from the vendor or the vendee but is one of substitution for the vendee in the original sale. The pre-emptor-

plaintiff can only seek to step into the shoes of the original vendee: he has, therefore, to take the bargain in its entirety or not at all.

If he does not ask for the same property purchased by the vendee for the same price paid by the vendee, he cannot succeed in his action to pre-

empt the sale. The principle of denying the right of pre-emption, except as to the whole of the property sold, is that by breaking up the bargain the

pre-emptor would be at liberty to take the best portion of the property and leave the worst part of it with the vendee.

The rule therefore applies only to those transactions which, while contained in one deed, cannot be broken up or separated; it cannot be applied to

a case where two distinct and separate transactions of sale are embodied in one sale deed. When each of the transactions is an independent sale

by itself, a pre-emptor must be able to pre-(sic) each such sale or one of them only as he may choose. This will not involve any attempt on the part

of the pre-emptor to seek to take the best portion of the property sold and leave the worst part of it with the vendee.

The reason of the rule would not therefore exist in a 1 case where a single deed contains two distinct and separate bargains of sale. To illustrate: if

A sells half of his land to B and the other half to C and it is stipulated that each of them is to pay a thousand rupees as sale price of his share, there

will be two different sales to two different persons by A, and a pre-emptor will be entitled to pre-empt the sale in favour of either B or G and take

half of the land on payment of the sum of Rs. 1000/- specified as the price therefore.

There can be no doubt or difficulty in such a case. But difficulty arises when A sells specified shares of his land to B and C but does not stipulate

the price to be paid by each of them and is content to stipulate that the sale price of the entire property sold to both of them is Rs. 2000/-. Here,

the shares of the land sold are specified but the purchase money payable by each of the vendees remains unspecified. Could pre-emptor in this

case seek to pre-empt the share sold to B alone? Would he be offending against the doctrine of partial pre-emption if he seeks to do so? A Full

Bench of the Allahabad High Court) in Ram Nath v. Badri Narain ILR All 148, has held that it is immaterial whether the proportion of the

purchase money found or to be found by each of the vendees is or is not specified in the sale deed and that when the share of each vendee in the

property sold is specified, the actual property to which the right of pre-emption is attached is earmarked and specified in the sale deed.

But the Punjab Chief Court and later the Lahore High Court have consistently held for several decades that unless there is specification of shares

qua land as well as qua purchase money the sale cannot be counted as divisible and that a pre-emptor is obliged to take the bargain in its entirety.

It is necessary to ascertain the reason on which the strict view has been founded. In Kesar Singh v. Panjab Singh 66 Pun Re 1896, it is pointed

out that:

the solution of the question depends upon the intention of the parties at the time of sale, and this can only be gathered by a careful consideration of

the contents of the deed.

If it can be gathered that the intention of the vendor was to effect two or more distinct and separate sales, any one of those sales can well be

pre-empted without coming within the mischief of the rule against partial pre-emption. But the Punjab view has been that distinct and separate sales

cannot reasonably be predicated when the sale deed specifies only the share of each vendee in the property sold but not the share of the purchase

money payable by him. The argument in support of this view has been well put in Mohd. Shafi v. Allah Din AIR 1934 Lah 429, as follows:

It is no doubt true that it is mentioned in the sale deed that the two vendees were to take the property in equal shares, but this does not make any

difference, for there was no specification of (sic) amount contributed by each vendee, and a erusal of the deed shows, that so far as the venor was

concerned it was a single and indivisible argain, and not two distinct and divisible transactions which for the sake of convenience had been written

on one piece of paper. It has been held (sic) a long series of cases, decided by the Punjab (sic) Court and this Court during the last 50 (sic), that

for purposes of pre-emption a sale (sic) is regarded is indivisible in those cases, where the purchase money is paid in one lump (sic) without any

specification of the amount paid (sic) the various vendees, and the mere fact that (sic) shares to be taken by the vendees respectively (sic)specified

in the sale deed does not alter the (sic) of the transaction, it being at most an (sic) among the purchasers inter se, which (sic) not affect the vendor.

The same position has been further (sic) by a Full Bench of the Lahore High Court (sic) Ghulam Qadir v. Ditta AIR 1945 Lah 184, thus:

It would make no difference if the shares (sic) the various vendees, if they happened to be (sic) than one, were specified as long as the sale (sic)

for a consolidated price and it was open to the (sic) to call upon all the intending purchasers (sic) perform their contract jointly and to recover (sic)

whole of the price from any one of them. Specification of shares in such a case could not (sic) such a contract of sale to be divisible or to (sic) of a

number of transactions embodied in single document. The position might be (sic) different if the price of all the specified (sic) is also separately

fixed and the vendor is (sic) to recover the price mentioned for each (sic) from each vendee separately.

It will be seen that one of the reasons (sic) in support of the Punjab view is that so far (sic) the vendor is concerned, the transaction of sale (sic)

one and indivisible, the specification of shares (sic) the property purchased by the vendees being (sic) a matter of arrangement among the (sic) inter

se with which the vendor is in no way (sic) concerned. The other reason given is that it is open to (sic) vendor to recover the whole of the (sic)

price from any one of the vendees, it being matter of indifference to him as to which (sic) or which combination of vendees actually pays (sic) price

stipulated in a lump in the sale deed. (sic) same reasons would seem to avail if there are (sic) than one vender, provided the interest of the (sic) in

the property sold is joint. In that case, the vendors will be taken to (sic) a single entity even as the several vendees (sic) be taken to constitute a

single entity when, (sic) the point of view of the vendor, it could be (sic) that there has been only a single transaction (sic) sale. The position would

seem to be the same instead of merely specifying the shares the area (sic) the land sold to each of the vendees by a (sic) is specified in the sale

deed which however (sic) not specify the proportionate share of the (sic) money to be borne by each of the vendees.

But none of the reasons which have been (sic) in support of the Punjab view can apply (sic) a case where it cannot reasonably be said by the

vendor that the bargain is a single transaction of sale and that the specification of the share or extent of the property purchased by each of the

vendees is a matter of mere arrangement among the vendees inter se, or where the vendor cannot call upon any of the vendees to pay up the price

of the entire property sold under the sale deed. These reasons have been put forward in the process of ascertaining the intention of the parties at

the time of the sale and to show that the intention could not have been to make distinct and separate bargains of sale although they are all

incorporated in one sale deed.

But if from a careful consideration of the contents of the sale deed it can be predicated that the intention of the parties at the time of the sale was to

make as many bargains of sale as there are vendees, none of the Punjab rulings can come in the way. When the intention of the parties at the time

of the sale can be clearly gathered in a given case it may not be necessary for deciding that case to choose between the Allahabad view and the

Punjab view. We may, therefore, turn to the contents of the sale deed in question.

The sale is of two different plots of land by two persons, Chand Lal and Bhimsen. Chand Lal has no interest in the property sold by Bhimsain,

nor has the latter any interest in the property sold by the former. Thus, each of the vendors has sold his own separate property. Except their

junction in a single sale deed, there is no other community relevant for the purposes of this case between them. The same is the case with the

vendees.

The property of Chand Lal is sold to Mir Mohd, first Respondent and the property of Bhimsain is sold to Abdul Karim. The two vendees are

absolute strangers. One of them is certainly not interested in paying the price of the land purchased by the other, nor can any one of the two

vendors call upon any of the vendees to pay the price of the entire property sold under the sale deed. In fact, Chand Lal can only look for payment

to Mir Mohd., to whom his property was sold. Likewise, Bhimsain, the other vendor, can call upon only Abdul Karim to pay him the price of his

property.

There is no vendor-vendee relationship between Chand Lal and Abdul Karim, nor is there any such relationship between Bhimsain and Mir Mohd.

Each vendor in this case has his separate property and his own separate vendee. All this goes to establish that there have been two sales embodied

in a single sale deed: one sale of 6 kanals and 5 marlas of land by Chand Lal to Mir Mohd. and another sale of 4 kanals and 4 marlas of land by

Bhimsain to Abdul Karim. But the only complicating circumstance is that one consolidated price of Rs. 2500/- has been fixed for the sale of the

parcels of land of both the vendors.

Though the subject-matter of the sale to each vendee is distinct and separate, the price payable by each vendee has not been separately specified.

This circumstance has been seized upon by the appellant's learned Counsel to urge that the bargain contained in the sale deed is not divisible. We

are not satisfied that this contention ought to prevail. Every other circumstance and recital in the sale deed point to the existence of two separate

and distinct sales in favour of two different vendees by two separate vendors.

Merely because the price of the property sold to both the vendees is mentioned in a lump, the transaction does not seem to become single and

indivisible. It might well have been that there was an understanding between the vendors and the vendees as to what portion of the consolidated

price each one of them should receive and pay. The omission to embody that arrangement in the sale deed might have been actuated by an attempt

to over-reach or forestall a prospective pre-emptor.

As we already stated, the crux of the matter we have to get at is what really was the intention of the parties at the time of the sale and once we are

clear in our mind that the intention was to effect two distinct and separate sales, the manipulation contrived by the parties in the form of a

consolidated sale price cannot dissuade us from holding that there have been two different bargains of sale.

The facts of the Punjab cases cited before us on behalf of the appellant are far removed from the facts of the case before us. The reasons given

in the Punjab cases do not apply to the facts of the instant case. We are of the opinion that in a case like the present it is not only open but also

necessary in the interests of justice for a Court to ascertain the price payable in respect of the separate sale sought to be pre-empted by the

plaintiff. Our conclusion, therefore, is that the suit is not one for partial pre-emption and we agree with the conclusion arrived at by the Addl.

District Judge, Poonch, though for reasons different from his.

In the result, the appeal is dismissed, but without any order as to costs in view of the somewhat uncertain state of the law when this appeal was

preferred.

S. Murtaza Fazl Ali, J.

I agree.