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1949 (8) TMI 26
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....hat the latter (Defendant 1) purchased survey No. 7/1 on that representation of the former and so the former was estopped' from asserting his right of pre-emption. 2. Both the lower Courts have found against the Defendant 1, on point No. 1 holding that the transaction between the Plaintiff and Defendant 2, dated 6th September 1941, was one of sale and not of mortgage and so the Plaintiff was a co-occupant. On point No. 2 the trial Court held that the Plaintiff had made no such representation to the Defendant 1, and decreed the suit for pre-emption. The Court of first appeal, however, held that the Plaintiff had made suoh a representation and so he was estopped from asserting his right of pre-emption and dismissed the Plaintiff's suit. The Plaintiff has, therefore, come up to this Court. 3. The learned Counsel for the Appellant has shown no ground on which the finding of fact that the Plaintiff had made the representation that he did not want to pre-empt could be interfered with. It is, therefore, final The learned Counsel has, however, raised an important point of law. His contention is that it is clear from the provision of Sub-section (3) of Section 174 of the Berar....
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....viously obtained. There will be no waiver of right. * * * * The object of consolidation of that survey number will be borne out from what the Select Committee said on this proviso: We have added a provision providing for a case where several occupants in a survey-number have consented, but subsequently one or other of the occupants in the Survey-number refuses to consent. We consider that in these cases the consent already given should not bar the occupants giving it from enforcing their rights of pre-emption. These rights should only be barred if all the occupants in the survey-number consent. * * * * Law, therefore, recognizes no waiver except by a written consent of all or under Section 180. * * * * In Berar Section 174(3) lays down the only rule of estoppel. 6. I am inclined to think that Sub-section (3) of Section 171, Berar Land Revenue Code was enacted to avoid false pleas of oral consent and consequent delays in litigation. There would be some cases where co-ocoupants might give oral consent and then deny it and br....
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.... not a case of subsequent waiver of the right after it had arisen but a case of permitting the sale. This would be clear from the following part of the judgment: This amounts to a clear and unequivocal waiver of his rights to pre-empt. He knew what was being sold. He took an active interest in the sale, and the inevitable deduction is that he permitted the sale with full knowledge of what he was doing. It also follows that but for the activities of the Plaintiff in recovering the dues which were owing to the Society the vendor would not have sold and the vendee would not have purchased the property. Consequently an estoppel arise, and the decision of the lower appellate Court is correot. Vikrama v. Bhawarmal S.A. No. 162 of 1944, D/. 3-12-1947, was followed by Pollock J. in Anandrao v. Kisan S.A. No. 584 of 1944, D/- 5-4-1948. Therein Pollock J. observed: Section 174(3) does not state that there can be no estoppel without a written consent, and Grille C.J. in Vikrama v. Bhawarlal S.A. No. 162 of 1944, D/-3-12-1947 held that there is a waiver of a right to pre-empt if the would-be pre-emptor has taken an active interest in the sale with....
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....ge referred the case to the Honourable the Chief Justice under Sub-rule (1) and (3) of Rule 9, Chapter 1 of part 1 of the Rules of the High Court with a recommendation that it be placed before a Bench of two Judges for hearing and decision of the appeal. The learned Judge, however, gave no indication about the answers to the questions raised. Accordingly the appeal comes up before us under the orders of the Honourable the Chief Justice. 11. The appeal is by the Plaintiff Govindsa, hereinafter referred to as the pre-emptor. He instituted this suit to pre-empt survey No. 7/1 of village Virpur, taluq Ellichpur. Sk. Ismail (hereinafter referred to as the purchaser) bought Survey No. 7/1 from Chandu, Defendant 2, hereinafter referred to as the vendor. The sale was effected under a gale-deed registered on 17th April 1942. The purohaser took possession of the field the same day. The purchaser resisted the suit on two grounds: Firstly, the pre-emptor was not an occupant of Survey No. 7 as the trans-action between him and the vendor by which the pre-emptor alleged to have bought Survey No. 7/2 was really a mortgage and made the pre-emptor a mortgagee and not an occupant. Secondly, the pr....
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....erefore hold that by virtue of the sale-deed dated 6th September 1941 the pre-emptor became the occupant of Survey No. 7 within the meaning of Section 173, Berar Land Revenue Code. Accordingly the pre-emptor had the right to pre-empt the sale dated 17th April 1942. 15. We will now consider the Appellant's arguments. The learned Counsel for the Appellant referred to the diecrepanoies in the evidence on behalf of the purchaser about the occasion which gave rise to the representation by the pre-omptor. The learned Counsel challenged the correctness of the findings of the learned appellate Judge that the pre-emptor had assured the purchaser that the former would not pre-empt and he had thus consented to the sale. These are however findings of fact based on evidence. Consequently they are not open to challenge in second appeal. It is however necessary to point out that the vendor did not give to the pre-emptor any notice under Section 176(1). The representation or assurance relied upon by the purchaser was given before there was even a completed agreement of sale between the vendor and the purchaser. As stated by the vendor, the bargain was settled with the purchaser after the la....
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....r the Berar Land Revenue Code. So the provisions of the Code require careful consideration before we examine the rulings thereunder. 19. Chapter XIV of the Berar Land Revenue Code contains the provisions relating to pre-emption. They are from Section 173 to Section 186. Whatever be the origin and the basis of the law of pre-emption in Berar it is to be remembered that Sub-section (1) of Section 174 emphasises that the rights conferred by the Chapter are to be enforceable only in the manner and to the extent provided in that Chapter. So the Code is exhaustive with respect to matters about which it makes provision. 20. Section 173 defines an occupant in a survey number for the purposes of the Chapter. The Code confers the right of pre-emption on an occupant in a survey number in respect of the following transfers by any other occupant in the same survey number: (1) sale, (2) usufructuary mortgage, (3) lease for a period exceeding 15 years or containing a covenant for renewal where by the total period of successive leases would exceed 15 years; and (4) exchange of the whole or a part of the survey number when it does not result in the consolidation of land of either of the parti....
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.... pre-emption from arising by securing the oral consent of some and the written consent of others. To hold that the right of pre-emption does not arise even in such a case is to defeat Sub-section (3) which requires the consent of all to be in writing. If oral consent is insufficient to prevent the accrual of the right of pre-emption in the case of a survey-number belonging to more than one occupant there is no principle on which it can be justified as sufficient where the survey number belongs to a single occupant. It is worthy of notice that under the Mahomedan law of pre-emption surrender of the right of pre-emption before the sale is not valid; see Baillie's Digest of Mahomedan law (1865) Book VII page 500, Gobind Dayal v. Inaya-tullah 7 ALL. 775 at pp. 804, 805: (1885) A.W.N. 182 F.B. and Sanwal Das v. Gur Prashad 90 P.R. 1909 p. 410 : 4 I.C. 179. It is the statute which provides that consent inhibits the accrual of the right of pre-emption. The statute, however, requires the consent to be in a particular form. There is no warrant for relaxing that requirement. To hold that oral consent prior to transfer is equally efficacious is to render the statutory provision nugatory. ....
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....at the provision about the consent previously obtained in writing was introduced into the present Code for two reasons. If the consent of the pre-emptor is forthcoming prior to the sale, time and trouble is saved all round and the purchaser can proceed to complete the purchase with assurance. The insistence on consent in writing is to avoid uncertainty involved in the determination of doubtful pleas of oral consent based on conflicting and possibly perjured testimony. The Code proceeds on a definite scheme. The Legislature took pains to evolve a system which, if adhered to, will eliminate delays, doubts and difficulties. To hold oral consent given before a sale, a sufficient defence to a claim of pre-emption would be to encourage the disregard of the system introduced by the Code without securing any corresponding gain. 29. This brings us to Section 183. The section reads: 183(1) When an occupant in a survey number transfers his interest or any portion thereof by any of the transfers contemplated in Section 176' (and Section 178,or suffers a final decree for foreclosure as contemplated in Section 177 to be passed against him,) and no notice has been giv....
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....32. The observations about consent in Daya-ram v. Sundrabai S.A. No. 459 of 1942, D/- 15-1-1946 must be taken in the light of the facts of that case. Consent was inferred in that case from certain recitals in a gift deed executed by the pre-emptor subsequent to the sale sought to be pre-empted. It was not a case of oral consent at all. The rulings, Nathu v. Thakubai 1 N.L.J. 253 : A.I.R. 1917 Nag. 163, Waman v. Rakhmabai S.A. No. 510 of 1943, D/- 15-10-1943, Radhakisan v. Sitaram S.A. No. 380 of 1942, D/. 3-12-1945, Vikrama v. Bhawarmal S.A. No. 162 of 1944, D/- 3-12-1947, Anandrao v. Kisan S.A. No. 584 of 1944, D/-5-4-1948 and Jainarayan v. Sadasheo S.A. No. 723 of 1944, D/. 18-11-1944, are not authorities for the proposition that prior oral consent by itself defeats the right of pre-emption. The decisions or dicta in these cases were grounded on representation or conduct of the pre-emptor giving rise to estoppel or waiver or both. Before I consider these rulings in relation to the question of estoppel. I propose to examine at some Mength the law on the aspect of estoppel as it arises in the present case. 33. As is well-known Section 115, Evidence Act, is a concise statement of....
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....or the pre-emptor to establish the truth of his representation to the purchaser. There is no estoppel unless the relationship between the parties is such that the imputed truth of the representation is a necessary step in the constitution of the cause of action: see C. and D. Sugar Co. v. Canadian National Steamship A.I.R. 1947 P.C. 40 : 228 I.C. 614. The pre-emptor who as here assures the purchaser that he will not pre-empt but nevertheless subsequently seeks to exercise his right of pre-emption is not denying the truth of what he stated earlier but has merely changed his intention. If there has been no change of intention, but the representation as to intention was in fact false and was made fraudulently to induce the purchaser to act to his prejudice an action for deceit in tort may well lie as in the case before the Court of Appeal in Edgington v. Fitz Maurice (1885) 29 Ch. D. 459 : 55 L.J.C.H. 650. But a representation of intention. true or false, cannot give rise to estoppel, The reason is this. The pre-emptor's statement, "I will not pre-empt" is but a representation of present intention which is revocable. In the absence of a complete agreement of sale or even a notice ....
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.... what Mrs. Jorden said. It was contended that she had made a representation leading Mr. Money to marry which she was bound to make good. It was held the language at most amounted to a promise not to sue on the bond. Such a promise, however, not being in writing was unenforceable as a contract because of the Statute of Frauds. The representation being a statement of intention and not of fact failed to raise an estoppel against Mrs. Jorden. As the Lord Chancellor pointed out, in the case of what is future there is no reason for the application of the rule in Pickard v. Sears (1837) 6 A. E. 469 : 45 R.R. 538 (cit. Sup. ) because the parties have only to say, "Enter into a contract" and then all difficulty is removed. Though Lord St. Leonards dissented, Lord Brougham was in agreement with the Lord Chancellor. The statement of law in Jorden v. Money (1854) 10 E.R. 868 : 23 L.J. Ch. 865 was approved and acted upon by the Privy Council in Chadwick v. Manning (1896) A.C. 231 : 65 L.J.P.C. 42. Their Lordships held that in the absence of a contract, the Defendant in that case could not be estopped from enforcing an agreement of indemnity against the Plaintiff because of a representation, exp....
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....ive their lien upon the goods so that the purchaser could obtain delivery and the plea was upheld. In the appeal before the Privy Council, Lord Russel of Killowen observed: But even if their Lordships were to accept the meaning attributed to the letters O.K. by the Plaintiffs and the High Court, it would be impossible to hold that they constitute a representation which could ground an estoppel: for the meaning so attributed, ia not a representation of an existing fact, but a representation of a future intention, which might or might not be enforceable in contract. 41. The distinction between a statement of fact and a mere promise to do something in the future was, if I may say with respect, clearly brought out by Bose J. (as he then was) in Gharbhoya Bhimji v. Deodatta Bihari A.I.R. 1937 Nag. 400 at p. 405 : 172 I.C. 389. This distinction has to be kept in view in considering the plea of estoppel. 42. Now I proceed to consider the rulings referred to earlier. The earliest case is Nathu v. Thakubai 1 N.L.J. 253 : A.I.R. 1917 Nag. 163. That case arose under the Berar Land Code of 1896. Chapter 18 of that Code oontained no provision similar to Sub-section (....
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....tain recitals in a deed of gift made subsequent to the sale which was sought to be pre-empted were held to estop the pre-emptor from enforcing his right. The estoppel was not raised on any prior representation of the pre-emptor which induced the purchaser to buy the property. 47. In Vikrama v. Bhawarmal S.A. No. 162 of 1944, Dated 3rd December 1947, estoppel was founded on the attestation by the pre-emptor of the isar chitthi (sic) and the sale deed, his refusal to purchase the property when offered to him and his conduct in recovering from the proceeds of the sale what was due by the vendor to the society of which the pre-emptor himself was the sarpanch. 48. It was held in Anandrao v. Kisan S.A. No. 584 of 1944, Dated 5th April 1948, that where a co-occupant encouraged a purchaser to buy and the purchaser acting on that encouragement had bought, it was not subsequently open to the co-occupant to pre-empt him. It is not clear from the judgment what the actual representation of the pre-emptor was in that case. 49. In Jainarayan v. Sadasheo S.A. No. 723 of 1944, Dated 18th November 1948, the pre-emptor failed on the ground of waiver. Subsequent to the sale sought to be pre-e....
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..... 548. Besides the decisions in Allahabad have not been uniform. In Oon Mahomed v. Mt. Bint Zohra: A.I.R. 1925 ALL. 645 : 87 I.C. 414 and Rameshar Prasad v. Ghisiawan Prasad 51 ALL. 820 it Was held that the refusal of the pre-emptor to buy the property on being informed of the sale barred his suit to pre-empt. In the latter decision reference is to be found to the earlier Allahabad rulings to the contrary. In a recent case, Nathoo v. Horilal I.L.R. (1945) ALL. 294 : A.I.R. 1945 ALL. 196, Allsop J. doubted the correctness of Oon Mahomed v. Mt. Bint Zohra A.I.R. 1925 ALL. 645 : 87 I.C. 414 and Ranjit Singh v. Bhagwati Singh 48 ALL. 491 : A.I.R. 1926 ALL. 467. The doubts raised by Allsop J., if I may say with respect, are founded on the true principle applicable to the facts before us. 54. In the Punjab too the conception of the right of pre-emption was at times largely influenced by the entries relating to haq-i. shufa in the waj'ib-ul-arz of a village or in the riwaj-i-am of a tribe: See Sanwal Das v. Gur Parshad 1909 P.R 90 . . 400, 410, 411 : 4 I.C. 179. 55. We are not called upon to decide the case on a plea of waiver based on contract. There was no suggestion that the ....
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.... of the judgment is crucial, and as their Lordships read it, it depends entirely upon the meaning and effect of the letters O.K. which Ba Maw placed upon the delivery orders. Cunliffe, J. holds that they amount to a statement "that there will be no insistence upon any check on delivery," and he then proceeds thus: In this connexion the only check...was the operation of the lien, the effect of which is waived by the letters O.K. In other words, I take the view that the second part of the estoppel consists of an estoppel of a principal by the waiver of his agent, in this case the estoppel of Dawson's Bank by the waiver of Ba Maw. These words, which are the true foundation of the judgment, disclose, in their Lordships' opinion, a confusion of thought upon the subjects of estoppel and waiver. The question of estoppel is governed by Section 115, Evidence Act, which for the present purpose seems to their Lordships not to differ from the law in England in regard to estoppel in pais. Estoppel is not a cause of action. It may (if established) assist (sic)a Plaintiff in enforcing a cause of action by preventing a Def....