Rajasthan High Court - Jaipur
Smt. Roopi Bai vs Mahaveer And Ors. on 10 March, 1993
Equivalent citations: AIR1994RAJ133
JUDGMENT Rajesh Balia, J.
1. The Appeal No. 96 of 1992 is defendant's appeal arising out of a preliminary decree for pre-emption of the suit property passed in favour of respondents Nos. 1 and 2 by the learned Additional District Judge, No. 2, Udaipur in Civil Suit No. 126 of 1985.
2. Mahaveer son of Bhanwarlal and Sunder Lal son of Bhanwarlal, two brothers, filed a suit for pre-emption of the property sold by defendant No. 2 (respondent No. 3) Vijay Singh to appellant-defendant No. 1 Smt. Roopi Bai, claiming their right to preempt the sale of property. The case of the plaintiffs is that the property in question is a part of a building originally owned by Pratap Singh Talesra, Vijay Singh Talesra and Chander Singh Talesra between whom the property was partitioned. The plaintiff-Mahaveer had purchased a part of share of Pratap Singh on February 12, 1982 and Sunder Lal another part of the share of Pratap Singh through another registered sale deed on February 12, 1982. At the time, they purchased the said shares of Pratap Singh, the properties had certain joint amenities which was being used by the owners and occupants of other parts of the property. The other owners of the property at the time of sale made in favour of the plaintiffs were stated to be Smt. Ajab Kanwar, Smt. Sohini Devi who purchased the share of Chander Singh and defendant No. 2 Vijay Singh. Such amenities continued to be joint between the plaintiffs parts of buildings and property transferred by Vijay Singh. On October 1, 1984, defendant No. 2 Vijay Singh sold his share of the house in favour of defendant No. 1 SITU. Roopi Bai through a registered sale deed for Rs. 45,000/ -. It was alleged that in fact only Rs. 35,000/- passed as consideration. The plaintiffs claimed that they have a right to pre-empt on the ground that a joint stair-case, entrance and other amenities attached to their properties are common to the property sold by Vijay Singh in favour of Smt. Roopi Bai. The plaintiffs further averred that before executing the sale in favour of defendant No. 1, no notice of such sale was given to them and they came to know about the sale in favour of defendant No. 1 by defendant No. 2 only after the sale deed was registered and when they came to know about it, they gave separate notices to the defendant No. 1 demanding enforcement of their right of pre-emption, which was in the first instance returned unserved. Thereafter when the same was again sent on April 12, 1985, it was delivered to the defendant No. 1 on April 16, 1985 but the defendant did not agree to the demand and denied the plaintiffs right. Hence the suit has been filed claiming that decree for pre-emption in favour of plaintiffs may be passed by substituting the names of plaintiffs as transferees of the property in question in place of Smt. Roopi Bai on payment of Rs. 45,000/- or any other sum as the Court deems fit to be the true consideration and the possession of property may be delivered to the plaintiffs. The suit was filed on September 25, 1985.
3. Defendant No. 1 only filed written statement. He denied the plaint allegations. It was pleaded that before the property in question was sold to defendant No. 1, the plaintiffs were asked to purchase the property by the vendor and it was only when they refused, the property has been sold to the defendant No. I. It was also pleaded that the property was purchased by defendant No. I at the instance of the plaintiffs and plaintiffs were active participants in executing the sale deed and, therefore, they are now estopped from exercising the right of pre-emption in their favour. The defendants after they have purchased the property carried out maintenance, repairs and improvements in the property in the presence and with the consent of the plaintiffs and have spent around Rupees Five Thousand Tor that purpose. For this -reason also, the plaintiffs are now estopped from exercising their right of preemption.
4. The following issues were framed on the pleadings of the parties :--
¼1½&&D;k oknhx.k dks fookxzLr tk;nkn dk iwoZ Ø;kf/kdkj nkos esa of.kZr vk/kkjksa ij izkIr gSa A ¼2½&&D;k izfroknh ;k :ihckbZ }kjk fooknxzLr tk;nkn izfroknh fot;flag ls [kjhnus ds iwoZ fot;flag vkSj :ihckbZ dks oknhx.k us ;g dgk Fkk fd mUgsa fooknxzLr tk;nkn ugha [kjhnuh gS vkSj blds fy;s muds ikl eqnzk Hkh ugha gS] ftlls oknhx.k us viuk iwoZ Ø;kf/kdkj vxj dksbZ mUgsa izkIr Fkk rks og oso dj fn;k gS A ¼3½&&D;k tckc nkos ds fo'ks"k mRrj ds dkye ua- 1 esa of.kZr dkj.kksa ls ;g okn pyus ;ksX; ugha gS A ¼4½&&vuqrks"k!
5. The plaintiffs examined four witnesses viz., Sunder Lal (PW 1), Mahaveer (PW2), Kalu Lal (PW 3) and Kamal (PW 4).
6. The defendant also examined four witnesses viz., Prabhu Lal (DW 1) (power of attorney holder and son of defendant No. 1), Bhagwan Lal (DW 2), Chater Singh (DW 3) and Vijay Singh (DW 4), the vendor.
7. The trial court decided all the issues in favour pf the plaintiffs and passed a preliminary decree in favour of the plaintiffs. Hence this appeal.
FACTS OF APPEAL NO. 96/928. After the filing of the appeal against the preliminary decree, the trial Court has also passed a final decree on November 7, 1992 in favour of the plaintiffs on their deposit ing the amount of Rs.45,000/-, directed as per the preliminary decree. Civil Regular First. Appeal No. 96 of 1993 has been filed against the final decree dated November 7, 1992.
9. Since both the appeals proceed on the common grounds, the same are being disposed of by a common judgment.
10. The counsel for the appellant at the time of hearing of appeal raised the following contentions viz. :
(1) that the sales by Pratap Singh in favour of plaintiffs have not been proved in accordance with law;
(2) that. when admittedly Pratap Singh and his brothers have separated and specific separate portions of the property sold, no right of pre-emption could exist in favour of the plaintiffs as co-sharers and the trial Court has erred in decreeing the suit by holding that plaintiffs have a right of pre-emption as co-sharer of the property;
(3) that, the trial Court have not arrived at any finding that any right of pre-emption exist on the ground that common amenities exist for the use of the property in question between the plaintiffs and the defendant No. 2, therefore, no decree could be passed on that basis;
(4) that, the right of pre-emption is a weak right and it can be defeated by estoppel. For that proposition, he pleaded that plaintiffs are estopped from exercising their right of preemption.
Firstly because the property in question was offered to them for sale before it was sold to the appellant and they having refused to purchase, are now estopped from exercising their right of pre-emption.
Secondly, by allowing the defendant No. 1 to spend Rs. 5,000/- for carrying out many improvements and repairs without objection, they are estopped from exercising any right of pre-emption on account of their conduct.
Thirdly, their conduct of being present at the time of registration amounts to their acquiescence, the plaintiffs are estopped from now exorcising their said right of preemption, and (5) that, a joint suit by two pre-emptors is not maintainable and the court could not pass a decree in favour of two pre-emptors without determining their rights inter se in terms of Section 6 of the Pre-emption Act.
11-14. The first three contentions raised by the appellant have been stated only to be rejected.
15. There was no dispute, nor there was any issue whether Pratap Singh executed any document of sale in favour of plaintiffs or not. The defendant had merely pleaded his ignorance about such fact. When a fact pleaded in plaint is not specifically denied, but mere ignorance about its existence is pleaded, in such cases unless by necessary implication it amounts to denial of the fact pleaded, mere plea of ignorance amounts to admission of fact. Reference in this connection may be made to Jahuri Sah v. Dwarka Prasad Jhunjhunuwala, (AIR 1967 SC 109), wherein it was observed as under (at p. 111 of AIR): -
"The High Court has pointed out that the plaintiffs have clearly stated in para 1 of the plaint that Shankerhd had been given in adoption to Sreelal. In neither of two written statements filed on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied. Instead, what is stated in both these written statements is that the defendants have no knowledge of the allegations made in para 1 of the plaint. Bearing in mind that Order 8, Rule 5, C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted, to say that a defendant has no knowledge of fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial. No specific issue on the question of adoption was, therefore, raised. In the circumstances the High Court was right in saying that there was no occasion for the parties to lead any evidence on the point."
16. Moreover the fact of such sale was duly proved by producing registered sale deed executed by Pratap Singh in favour of the plaintiffs. The execution of document was never in dispute and existence of document has been proved by producing the document itself. When a document is admitted to registration, an endorsement by Registering Officer has to be made on such document certifying that execution of the document by executant is admitted. Such endorsement or certificate on the registered document is proved by producing the document itself. The admission of execution of document in the endorsement and certificate of the Sub-Registrar, establishes the proof of registered document. Endorsement on a document may be taken to be proof of its execution without any other independent proof. In the present case, plaintiffs have produced Ex. 1 and Ex. 2 stating to be respective sale deeds in favour of the plaintiffs Sunder Lal (PW 1) and Mahaveer (PW 2) Kalu Lal (PW 3), who is an attesting witness to both the documents has also been produced who has proved his attestation on the documents. Documents Ex. 1 and Ex. 2 are both registered sale deeds and carry admission of their executant Pratap Singh about their execution, as recorded in endorsement of registering officer on the document itself. No evidence in rebuttal has been produced, nor plaintiffs witnesses have been cross-examined in this regard. Thus the fact of sale by Pratap Singh in favour of plaintiffs is duly proved.
17. The very pleadings in the written statements, go to suggest that the defendants were aware that right of pre-emption exists in favour of the plaintiffs and that they had taken care to get over their right before the property was sold to defendant No. 1 by defendant No. 2. This itself is sufficient to dispel any doubt about the existence of title in favour of the plaintiffs. In fact there was no dispute about the sale of property in question by Pratap Singh in favour of the plaintiffs.
18. Moreover neither this plea appears to have been taken before the trial Court nor any objection to the mode of proof of documents Ex. 1 and Ex.2 was raised at the time of proving the same. Therefore, no help can be drawn by the appellant on this ground.
19. So far as the contentions Nos. 2 and 3 are concerned, it has never been the case of the plaintiffs that they claimed their right of preemption as co-sharer. Para No. 10 of the plaint is clear indication of that. They were claiming the right of pre-emption only on the basis of common amenities between the property owned by the plaintiffs and the property transferred and the finding of Issue No. 1 is also as to the existence of the common amenities like Pol, Chowk, Srair-case, Bathrooms etc. Merely by use of word co-sharer does not detract from the true nature of finding recorded by the trial Court as a whole. If the finding on Issue No. 1 is read, it leaves no room of doubt that trial Court's finding is on the basis of evidence that common amenities between the property owned by plaintiffs and the property transferred exists, I find no reason to take a different view nor this finding has been seriously challenged by the learned counsel. His contention was merely that the finding is about co-sharer and not about common amenities.
20. The next contention of the learned counsel for the appellant is that the right of pre-emption, if any, in favour of plaintiffs cannot be of any avail to them because they are estopped by their conduct from exercising that right. The learned counsel further relied on following authorities for the proposition that right of pre-emption is a weak right and can be defeated by the plea of estoppel based on the conduct of the plaintiffs : Nga Tun Tu v. Nga Shwe Chin, AIR 1915 Upper Burma 16; Lakhi Chand v. Lal Chand, AIR 1918 Bombay 161; Syed Oon Mahomed v. Bint Zohra, AIR 1925 All 645; Ranjit Singh v. Bhagwati Singh, AIR 1926 All 467; Abdul Aziz v. Mt. Mariyam Bibi, AIR 1926 All 710; Rameshwar Prasad v. Ghisiawan Prasad, AIR 1929 All 531; Co-operative Town Bank v. Shanmugam, AIR 1930 Rangoon 265 (2); Abdullah Shah v. Mohammed Yaqub, AIR 1938 Lahore 58; Ram Rathi v. Mt. Dhiraji, AIR 1947 Oudh 81; Gopi Nath v. Nand Kishore, AIR 1949 Ajmer 2; Naunihal Singh v. Ram Rati Lal, AIR 1917 All 147 and Indira Bai v. Nand Kishore, AIR 1991 SC 1055.
21. Suffice it to say that there is no dispute and there cannot be any dispute that a right of pre-emption can be defeated by the conduct of the claimant on the principle of estoppel and such conduct may be overt act of acquiscence or by omission to speak or act, when he had such opportunity to speak or act.
22. This principle is not disputed by the learned counsel for the respondents either.
23. The question is whether in the facts and circumstances of the present case, it can be said that any such conduct can be attributed to the plaintiffs which can give rise to invoke the doctrine of estoppel against them,
24. So far as the question of raising the ground of estoppel against the plaintiffs for their having refused to purchase the property in question, when it was offered to them before the same was transferred in favour of defendant No. 1, is concerned, the trial Court has found the facts against the defendant. It was specific case of the defendant that the property was offered to the plaintiffs by defendant No. 2 Vijay Singh in the presence of Chander Singh Kothari and Bhagwanji Dhobi. To that effect all the three persons have been produced as defence witnesses.
25. No doubt, Vijay Singh (DW 4) states that he offered the property for sale to Sunder Lal in the presence of Chander Singh Kothari and Bhagwanji Dhobi before redeeming the mortgage but Sunder Lal declined to purchase on the ground that he already has many houses and he does not have money to purchase the same. However, Bhagwan Lal (DW2) and Chatter Singh (DW 3) does not support the statement of Vijay Singh that such offer was ever made to Sunder Lal. Even DW 1 Prabhu Lal with whom the sale transaction was settled and who is son of the appellant also does not say so. He categorically stated that offer was made to Kaluji and Bhanwarji and to no one else.
26. In that state of affairs, if the trial Court has not believed the version of Vijay Singh, it cannot be said that in doing so, it has committed any error.
27. So far as raising plea of estoppel on the ground that plaintiffs allowed the defendant No. I to carry out the maintenance, repairs and improvements in the house in question is concerned, the trial Court has decided Issue No. 3 against the defendants by holding that defendant has failed to prove any such expenditure.
28. It was contended by the learned counsel for the appellant that merely because details of expenses have not been proved, it cannot be said that no improvement or repairs was carried out in the disputed property and there is no reason to disbelieve the defendants testimony in this regard. The knowledge of plaintiffs about it must be presumed because, they are living in the another portion of the same property that was once a single property.
29. In am unable to accept this contention. Not only that no proof of any expenses carrying out repairs or improvement has been placed on record but there is no evidence except a bald statement by D.W. I Prabhula! that repairing of the house was done and 'chowka' and lights were fitted. Neither any details of the work carried out nor any person who had carried out was produced to corroborate his statement, though the name of one such labourer was stated in the statement of D.W. 1 Prabhulal. On this state of evidence, I am not prepared to hold that trial court has committed any error in deciding Issue No. 3 against the defendant.
30. In was next contended by the learned counsel for the respondent that plaintiff No. 1 Mahavir as P.W. 2 has admitted in his statement that the Draft of Rs. 35,000/ - was paid to the defendant No. 2 Vijay Singh vendor by the purchaser in the presence of both the plaintiffs. According to the learned counsel this admission alone is sufficient to estop the plaintiffs from claiming their right of preemption after about an year of the transaction. Learned counsel contended that sale-deed was registered on October 1, 1984. Draft of Rs. 35,000/- which was for the balance of price is also dated October 1. !984, which was delivered at the time of registry, leads to the irresistible conclusion that the plaintiffs actively participated in the process of executing the sale in favour of defendant No. 1. In spite of having come to know on October 1, 1984 about the sale transaction, they kept quiet for almost five months before giving notice dated March 14, 1985 for exercising their right of pre-emption, which was replied to by the defendant denying the plaintiffs right of pre-emption vide letter dated April 1, 1985, receipt of which is admitted. Yet, no suit was filed until September 25, 1985, just few days before the limitation to the suit was to expire. This conduct clearly gave rise to the plea of estoppel.
31. On the other hand, learned counsel for the respondents Nos. 1 and 2 Mr. Mahesh-wari contends that no such plea of estoppel can be raised on the basis of statement of Mahavir (P.W. 2). He contended that statement of Mahavir must be read in the context of plaintiff's plea that the consideration of the sale in favour of defendant No. I was only Rs. 35,000/ - and not as was shown in the sale deed Ex. 5 as Rs. 45,000/-. It was only for the purpose of proving that the real consideration was Rs. 35,000/-, the statement was made by Mahavir. He further contended that by reading the statement as a whole, the delivery of Draft of Rs. 35,000/- witnessed by Sunder Lal and Mahavir as per statement of P.W. 2 is not relatable to the transaction in dispute as the date of such payment according to the statement read as a whole comes of a much latter date from the October 1, 1984. He also contends that the amount was payable after sale was executed, therefore, witnessing the payment of sale price after the sale was executed without anything more cannot give rise to a plea of estoppel merely because suit has been filed just before the expiry of the limitation, without any further conduct showing the acquiescence of the plaintiffs in the Said transaction. It has also been argued that since finding of spending money for repairs and improvement is against the defendant-appellant, mere witnessing the passing of money after the sale had been executed, cannot give rise to the plea of estoppel against the plaintiffs.
32. Having given careful consideration to the rival contentions and examining the material on record, I am of the opinion that this contention of the appellant merits acceptance.
33. It was clear plea of the defendant-appellant in Para 5 of additional plea of the written statement that the plaintiffs were associated with the execution of the sale deed.
34. Para 5 of the additional plea of the written statement reads as under :--
;g fd ;g tk;nkn eq>s izfrokfn;k }kjk oknh x.k ds vkxzg djus ij gh [kjhn dh xbZ gS ,oa bUgksus lkFk jgdj ;g foØ; i= lEikfnr djok;k gSa blls vc os yk vkWQ bLVkiy ds vk/kkj ij ;g okn ugha yk ldrs A
35. It was mentioned in Ex. 5, the sale deed which is of October 1, 1984 regarding the balance payment amounting to Rs. 35,000/-as under:--
'ks"k :i;k 35]000@&isarhl gtkj :i;ksa dk Mªk¶V ua- lh&356951199] fnukad 1&10&1984 jktLFkku cSad ^^eksckbZy[kkuk ckiq cktkj** vkt dh rkjh[k :cj: lc jftLVªkj lkgc foØ; i= gktk dh jftLVªh djk izkIr dj ywaxk A
36. The above recital is clear indication of the fact that the Drat t was prepared before the execution of the sale deed and it was presented for registration before the Sub-Registrar and the said Draft was to be delivered in the presence of Sub-Registrar.
37. Vijay Singh (D.W.4) also states that the balance amount was to be paid at the time of Registry. His statement examination-in-chief reads as under -
cdk;k iSlk jftLVªh ds oDr ysuk r; fd;k A
38. Chatter Singh (D.W. 3) who is the attesting witness to the sale deed Ex. 5 dated October 1, 1984 has stated in his cross-examination as under : -
lkjk iSlk jftLVªkj ds lkeus fn;k Fkkk A igys lkbZ i=h gqbZ Fkh ftlesa ikap gtkj igys fn;s Fks A
39. Endorsement of Sub-Registrar on Ex. 5 reads as under :-
iSrkyhl gtkj esa ls 10]000@& iwoZ es izkIr dj ysuk Lohdkj fd;k A 'ks"k :i;k 35]000@&'kCnks es iSrhl gtkj dk psd ua-
3589A 99 fn- dj ysuk Lohdkj fd;k 11&10&84 jkt- cSad dk le{k izkIr fd;k A
40. From the aforesaid, it is clear that the balance amount of the consideration, which is now no more in dispute was Rs. 35.000/-, was to be paid before the Sub-Registrar at the time of registry, whether before the actual registration took place or immediately thereafter, but it was to be paid in the presence of the Sub-Registrar and it was in fact so paid before the Sub-Registrar.
41. The precise statement of Mahavir (P. W. 2), plaintiff No. 1 reads as under:--
:ih ckbZ ds edku dh jftLVªh gqbZ rc eS 'kkfey ugha Fkk A esjs lkeus fot;flag dks :ihckbZ us 35]000@&:- dk Mªk¶V fn;k Fkk A 35]000@&:- dk Mªk¶V fot;flag dks :ihckbZ us fn;k eSus vkSj esjs HkkbZ us ns[kk Fkk A Mªk¶V fn;k rc eS vkSj esjk HkkbZ lqUnj yky nksuks gh ekStwn Fks A ;g ckr nks lky igys dh gSa A efguk ;kn ugha A
42. Reading the statement, it cannot be doubted that Rs. 35,000;- of which Mahavir (P.W. 2) is talking is nothing else than the balance of consideration (which was alleged to be the total consideration of the sale in question by the plaintiffs in their plaint) of the same transaction which was the subject-matter of the suit. Merely because Mahavir (P.W. 2) states that it was a instance of two years before and he does not remember the month, it cannot be divorced from the main dispute and related to some other transaction as contended by the learned counsel for the plaintiffs-respondents.
43. Once this is admitted by the P.W. 2, one of the plaintiff himself that amount of Rs. 35,000/- was delivered to Vijay Singh by Smt. Roopi Bai in the presence of both the plaintiffs and it is found (as I have discussed above) that the amount was payable before the Sub-Registrar and the defence witness P.W. 3 in his cross-examination coupled with endorsement of Sub-Registrar on Ex.5 about payment of Rs. 35,000. - further corroborates that the amount was in fact paid at the time of Registry before the Sub-Registrar. The conclusion is irresistible that the plaintiffs were present at the lime of registration when the document Ex. 5 was being registered and the amount of balance consideration was passed in their presence. Their presence at the time of the registration further give rise to strong probability that the plaintiffs were actively associated with the execution and registration of the transaction in question or at any rate they having come to know about transaction before hand had no objection to it. That conduct of the plaintiffs is sufficient to give rise to a plea of estoppel against them so as to defeat their right of pre-emption.
44. In this connection reference may be made to Bishen Singh v. Khazan Singh, AIR 1958. SC 838, while approving the classic judgment of Mahmood J. in Gobind Dayalv. Inayatullah (1885) ILR 7 All 775 (FB), 'that the right of pre-emption was simply a right of substitution' observed that:--
"The right being a very weak right, it can be defeated by all legitimate methods".
45. The Supreme Court in Radha Kisnan v. Shridhar, AIR 1960 SC 1368, observed that (at p. 1372 of AIR):--
"there were no equities in favour of a pre-emptor whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of preemption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means."
46. The Supreme Court again observed in Indira Bai v. Nand Kishore (AIR 1991 SC 1055 at p. 1057) that : -
"courts have, not looked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property."
47. Thus it has been accepted that right of pre-emption is not only a weak right but inequitable right also as it results in disturbing otherwise valid transaction affecting the freedom of act ion on the part of parties to the transaction.
48. In Indira Bai v. Nand Kishore the Hon'ble Supreme Court held that it is settled that the right of pre-emption is lost by estoppel and acquiescence.
49. In view of the aforesaid. I am of the opinion that by their conduct of being present at the time of transfer of consideration before the Sub-Registrar giving rise to presumption of their active participation and acquiescence in the transaction which is subject-matter of suit, the plaintiffs are estopped from exercising their right of pre-emption.
50. Now the last contention of the learned counsel for the appellant that no preemption decree can be passed unless right of the two plaintiffs are deiermiend and there cannot be any joint decree in favour of two preemptors. He relied on the provisions of Section 6 of the Rajasthan Pre-emption Act. in support of his contention.
51. It will be profitable to reproduce the text of Section 6 of the Pre-emption Act:--
6. Persons to whom right of pre-emption accrues -- (1) Subject to the other provisions of this Act. the right of pre-emption in respect of any immovable property transferred shall accrue to, and vest in, the following classes of persons, namely: --
(ii) owners of other immovable property with a stair-case or an entrance or other right or amenity common to such other property and the property transferred, and
(iii) owners of property servient or dominant to the property transferred.
(2) Among the different classes of persons mentioned in Sub-section (i), persons of the first class will exclude those of the other classes, persons of the second class will exclude those of the third class.
(3) Among persons of the same class claiming the right of pre-emption, the person nearer in the relationship to the person whose property is transferred will exclude the more remote.
(4) Where two or more persons of the same class, claiming the right of pre-emption are equally entitled there to in all respects, the right of PRE-emption, are equally entitled thereby in all respects, the court may-(a) determine, by drawing lots, the person in whose favour pre-emption may be decreed, or
(b) after taking into consideration the circumstances of the case and the respective requirements of all such persons,- -
(i) determine which of such persons may be allowed to exercise the right in preference to the rest, or
(ii) direct the division of the property equally among all such persons, each of them paying an equal share of the consideration for the transfer.
52. In my opinion, a close reading of the aforesaid provision makes it clear that the section deals with situation where two or more persons having right of pre-emption on the basis of Sub-section (1) claim independently of each other to the exclusion of other's right to pre-empt, but the provision does not take into account and provide for situation where two or more persons having a right of pre-emption and falling in the same class do not claim as rival to each other but went jointly to be substituted in place of the transferee. Of course, where there is a rival claims between the two competing preemptors, the same will have to be decided in accordance with the aforesaid provision. However, the statute does not prohibite two or more persons having right of pre-emption under the same class from joining in a suit for being jointly substituted as transferees.
53. Mere absence of any provision in the statute cannot be construed against maintainability of joint suit by two or more preemptors for being substituted in place of transferees for keeping the strangers out to enjoying the property. It cannot be presumed that merely because having right to pre-empt to property, they are necessarily claiming adverse to each other.
54. In this connection, it may be noticed that the policy behind the law of pre-emption is to prevent the introduction of the stranger into an immovable property. Where there is two or more persons having the same right of enjoyment of the property joins to exclude the stranger from entering the property in exercise of their right of pre-emption, passing of such joint decree does not go against the main policy behind the right of pre-emption.
55. I, therefore, find no force in this contention of the learned counsel for the appellant. Since there is no dispute that both the plaintiffs had the right of pre-emption, they are in the same class and both have come forward have substituted their names jointly as purchaser of the property, the maintainability of the suit is not affected on account of the provisions of Section 6 of the Act.
56. As a result, the Appeal No. 96 of 1992 is allowed and preliminary decree dated July 30, 1992 passed in Civil suit No. 126 of 1985 by the Additional District Judge No. 2, Udaipur is set aside. Consequently, Appeal No. 3 of 1993 is also allowed and final decree passed by the Additional District Judge, No. 2, Udaipur on Nos. 7, 1992 is also, set aside. The suit of the plaintiff is dismissed. Parties are left to bear their own costs throughout.