Rajayya and Others vs Sangareddy and Others

Srinivasa Chari, J.—This appeal arises in a suit brought for the exercise of the right of pre-emption on the basis of the statutory right under the Shikmidari Law. The Appellants are the vendees. Sangareddy, Raja Reddy and Narayan Reddy are members of a Hindu joint family of which Narayan Reddy is the manager and Sangareddy his brother. These are Plaintiffs 1, 2 and 3 respectively. Dangu Chinniga and Dangu Durga are Plaintiffs 4 and 5 being brothers and members of a Hindu joint family of which Chinniga is the manager. All these five persons brought a suit for their right of pre-emption as against the vendees of the suit property against Rajiah and Sangiah and the vendor Sivamma.

It may be mentioned that Sivamma sold her 1/3, share in the property to Rajiah and Sangiah on 25-8-1951 by means of a sale deed. This pertains to survey No. 71. Plaintiffs 1 to 3 are entitled to 1/3 share while Plaintiffs 4 and 5 are entitled to another 1/3 in the suit property. The property was sold for Rs. 1500/- as mentioned in the sale deed. The Defendants viz. the vendees while admitting that the Plaintiffs were shikmidars denied that they were entitled to the right of pre-emption on the ground that Plaintiff 3 as the manager of the joint family of Plaintiffs 1 to 3 refused to buy the property when offered and Plaintiff 4 as the manager of the joint family of himself and Plaintiff 5 also refused to purchase the property when offered.

The Defendants, therefore, contended that inasmuch as Plaintiff 3 for his family and Plaintiff 4 for his family refused to purchase the property when offered their previous refusal destroyed their right of pre-emption under the law. Evidence was led both the parties and the trial Court dismissed Plaintiff''s suit holding that it was proved that Plaintiffs 3 and 4 refused to purchase the property their refusal was binding upon the other members of their respective families.

On appeal the lower appellate Court allowed the appeal. With regard to the refusal of Plaintiffs 3 and 4 it agreed with the trial Court. But it allowed the appeal holding that the refusal of Plaintiff 3 and the refusal of Plaintiff 4 could not affect the rights of Plaintiffs 1 and 2 or Plaintiff 5 as this was a personal right and no manager of a joint Hindu family could extinguish the rights of the other members by his refusing to purchase the property.

Hence this appeal by the vendees. I heard the arguments of the learned advocates for the Appellants and the Respondents. Inasmuch as there was difference of opinion between the Courts below I allowed the advocates to take me through evidence.

It may be said at the outset that it is now established that in cases of pre-emption arising under the Shikmidari Law the previous refusal by the pre-emptor would destroy the right of pre-emption. For this I might refer to the decision of this Court reported in 11 Nazair-e-Osmania 447(A). The question that has to be decided is as to whether the refusal of Plaintiff 3 in the one case and Plaintiff 4 in the other case would destroy the rights of the other members.

So far as the refusal of Plaintiff 3 is concerned, the Courts are concurrent and with regard to the refusal of Plaintiff 4 the trial Court, clearly and the lower appellate Court though not in explicit terms have concluded that there was a refusal. The evidence in the case is that Plaintiff 4 was present when there was the offer to sell and Plaintiff 3 refused to buy. The question is as to whether mere reticence on the part of a person could be regarded as a refusal to buy when the land is offered.

I am of the opinion that the law contemplates an express refusal. There must be an overt act on part of the person declining to buy the property when offered. Where the right to get the property is extinguished by reason of refusal to buy, the fact of refusal must be proved by strong evidence and silence of a party at the time when the property offered cannot be regarded as a refusal on his part. This in my opinion is supported by the decision referred to above by me. I am, therefore, of the opinion that the refusal of Plaintiff 4 cannot be held to have been established.

With regard to Plaintiff 3 it was urged by the learned advocate for the Appellant that his refusal would bind the other Plaintiffs because he must be regarded as representing the family of himself and his brothers and my attention was drawn to Section 7, Limitation Act under which a discharge given by the manager would be effective and binding upon the other members.

On this analogy it is argued by the learned advocate that where a manager could give a valid discharge and such a discharge would be binding on the others, the act of refusal to buy the property when offered by the manager should also be binding upon the other members. With regard to this 1 should say that the right of pre-emption is a peculiar right to which every member of the family becomes entitled. It is not a joint right in which case alone could the manager bind the family by his action.

The right of pre-emption is not an incident relating to the property but is an option to be exercised by a Mahomedan owner, and a Hindu by virtue of customary law after the sale of the property of his neighbour. It may be said that the right of preemption under the Muslim Law flows from status and not from contract. The position of a Manager of a Hindu joint family is clear and his powers are well defined. He represents the joint family as a whole.

He has no greater proprietary interest than any other coparcener, except that by reason of his position as ''manager'', he has certain powers in relation to management and disposition of property. He is neither an agent nor a trustee of the family. He can act without the express consent of the other members when the act is within his legal authority.

He may act without their consent where the act is necessary or incidental to the management of the joint family property. The act of the Manager in the case before me would not come under that category. I am, therefore, of the opinion that the right of preemption being an individual right, the manager''s act cannot bind the other members. Therefore neither on account of the refusal of Plaintiff 3 nor on account of Plaintiff 4 could the rights of Plaintiffs 1 to 3 or Plaintiff 5 be jeopardised.

It is conclusively proved that Plaintiff 3 refused and there cannot therefore be a decree in his favour because he had refused to take the property. The result of this will be, there will be a decree in favour of Plaintiff 1 and 2 and Plaintiffs 4 and 5. As this is a pure question of law involved in this case, I direct that each party do bear his own costs of this appeal.