Smt. Dhanpati vs Ratia

Pritam Singh Pattar, J.—This is an appeal filed by Smt. Dhanpati, minor-plaintiff, through Ram Saran, her next friend, against the judgment dated 3rd February, 1969, of Additional District Judge, Karnal, by which he dismissed her appeal against the decree dated 4th June, 1968 of the Sub-Judge 1st Class Panipat dismissing her suit for possession by pre-emption of the land in suit. The facts of this case are that the land in suit measuring 168 kanals and 8 marlas, situate in village Madhlauda, Tehsil Panipat, District Karnal, belonging to Darbari, defendant No. 2, was sold by him for Rs. 10,000/- to Ratia, defendant No. 1, on the basis of registered sale-deed dated 4th May, 1966. Smt. Dhanpati, minor-daughter of the vendor Darbari, filed that suit for possession by pre-emption, through Ram Saran, her next friend on payment of Rs. 7,100/-, on the allegations that she being the daughter of the vendor had a preferential right of preemption than the vendee, who is a stranger, that sale took place for Rs. 7,100/- only and the same was the market value of the land. This suit was contested by the vendee, defendant No. 1. It was alleged that the plaintiff was not born at the time of the sale and, therefore, she had no locus standi to file the suit and the same may be dismissed on this very ground. It was pleaded that the sale took place for Rs. 10,000/- and the same was the market value of the land. On these pleadings of the parties, the following preliminary issue was framed by the trial Court:

Whether the plaintiff has a right to pre-empt this sale, when she was admittedly not born at the time of the sale?

The Subordinate Judge held that since the plaintiff was not born at the time of the sale and, therefore, she had no right of preemption and the suit was not maintainable. As a result, the suit of the plaintiff was dismissed, but the parties were left to bear their costs. Feeling aggrieved, the plaintiff filed an appeal against this decree in the Court of District Judge, Karnal, which was dismissed by the Additional District Judge on 3rd February, 1969. Thereafter the second appeal was filed by her as mentioned above. The registered sale deed in suit was executed by the Vendor Darbari, in favour of Ratia, on 4th May, 1966. This suit was filed by the minor-plaintiff on 7th June, 1967. There is no mention either in the plaint or in the written statement about the date of birth of the plaintiff. However, Mst. Sunehri, mother of the plaintiff, made an application on 29th April, 1968 for removing Ram Saran, the next friend of the minor-plaintiff and to appoint her as next friend, as she was the natural guardian of the minor. In this application it was mentioned that the age of Dhanpati minor plaintiff was one and half years. Therefore, Dhanpati was born on or about October, 1966. It was a common case of the parties before the Courts below that Dhanpati, minor-plaintiff, was born after the sale but she had been conceived before the sale. Shri U. D. Gaur, the learned counsel for the appellant, quoted some rulings to show that a child not born at the date of the sate but conceived at the time of the sale, has got a locus standi to challenge the alienation by the father and to file a suit for pre-emption. In Bayava Shiddappu Desai v. Parvateva Basavaneppa Bellad A I R 1948 Bom. 126, it was held:

The theory of the plaintiff being in existence at the time of conception can equally be extended to a daughter and the plaintiff, if she is the legitimate daughter though posthumous, is entitled to succeed.

In AIR 1934 290 (Lahore) , it was held:

A reversioner, though not born at the time of the alienation has a locus standi to dispute the alienation and that the time begins to run from the date of alienation and a reversioner born subsequent to this date cannot avail himself of an extension of time u/s 6 of the Limitation Act.

Similar was the law laid down in Jawala v. Hira Singh 55 P R 1903 (F B). The law down in these authorities does not show that the plaintiff, who was born after the date of sale, has got a right to pre-empt the same, even though she was conceived at the time of the sale.

As against this, the learned counsel for the respondent relied on (sic) Mohammad v. Gulam AIR 1925 Lah. 359, where in it was held:

A child begotton but not born at the time of a sale does not acquire rights enforceable later under the Pre-emption Act, 1913.

It was observed in this ruling that the Pre-emption Act confers a peculiar right by statute law and this is a highly technical right hedged round by technical restraints, and the wording of the Section conferring and limiting the right must be read and interpreted in strictest and the most technical way. If we read Sections 14, 15 and 19 together, (sic) find that the Act contemplates the existence of certain rights at the same an alienation takes place and the automatic creation of a cause of action which entitles the pre-emeter to step into the shoes of the aliened from the moment of the alienation. Therefore, he should not only be in existence, but it must be possible to treat him as a concrete person and it must be possible for him to play his part from the very instant when the transfer takes place. Therefore, it cannot be said that an unborn child is capable of playing his part.

With due respect I agree with the law laid down in this authority. It is well settled law that the pre-emptor must have a right of preemption against the vendee at the time of sale and at the time of institution of the suit and at the time of the passing of the decree by the trial Court. This view is further fortified by observations made in some ratings of the Supreme Court. In Bishan Singh and Others Vs. Khazan Singh and Another, was held:

The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary inherent right. The pre-emptor has a secondary right or a remedial right to follow the thing sold. It is a right of substitution but pot of re-purchase i.e. the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. It is a right to acquire the whole of the property sold and not a share of the property sold. Preference bring the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place.

In (sic) Bhratar Chanbasappa Deshmukh v. Mallappa Chanbaiappa it was held:

The existence of a son in embryo of a co-widow does not invalidate the adoption made by a widow. It is now well settled that the main object of adoption is to secure spiritual benefit to the adopter, though its secondary object is to secure an heir to perpetuate the adopter''s name. Such being the significance of adoption, its validity shall not be made to depend upon the contingencies that may or may not happen. The contention that an adoption cannot be made Unless there is certainty of not getting a son and that if the wife is pregnant, there is a likelihood of the adopter begetting a son and, therefore, the adoption made is void cannot be accepted as correct. There are no texts, of Hindu Law imposing a condition of non-pregnancy of the wife or son''s widow or a grand son''s widow for the exercise of a person''s power to adopt.

In T.S. Sirinivasan v. Commissioner of Income Tax, Madras A I R 1946 S C 984, it was observed that the doctrine that Hindu undivided family comes into existance from the date a son is conceived is not of universal application and it applies mainly for the purpose of determining such rights to property and safeguarding such rights of the son. This doctrine does not fit in with the scheme of the income tax Act and it could not be justifiable to introduce uncertainties and anomalies in the working of the Act, by introducing this doctrine for the purposes of Section 3 of that Act. It is, therefore, manifest from the aforesaid authorities of the Supreme Court that the doctrine of the Hindu Law that a son in embryo has got the right to inherit the property of his father, even though born after his death, is not of universal application and this doctrine applies only for the purposes of determining rights to property and safeguarding such rights of the after-born son. This doctrine does not have any thing common with the scheme of the Punjab Pre-emption Act. 1913, which requires that the pre-emptor must have a preferential right on the date of the sale, on the date of the institution of the suit and at the time of the passing of the decree by the trial Court. A child begotten, but not born on the date of the sale has got no right to pre-empt the sale under the Punjab Pre-emption Act. The son in the embryo at the time of the sale cannot have preferential right to that of the vendee on the date of the sale.

For the above reasons, it is held that Mst. Dhanpati, minor-plaintiff, who was be gotton, hut not horn, at the time of the sale has no locus standi to file the suit for pre-emption. The preliminary issue was rightly decided by the lower Courts. There is no force in this appeal and the same is dismissed. In view of the point of law involved, I leave the parties to bear their own costs, throughout.