Asit Ranjan Datta vs Tarakeswar Sarkar

Bijayesh Mukherji, J.—This Rule u/s 115 of the CPC (V of 1908) is at the instance of Ask Ranjan Datta whose application for pre-emption u/s 24 of the West Bengal Non-Agricultural Tenancy Act XX of 1949, as amended by Act XXIV of 1963, succeeds in the Court of first instance, but fails in the Court of Appeal below.

On August 31, 1962, Chittaranjan Ghosh alias Jiban Krishna Ghosh, a co-sharer in each of the two non-agricultural tenancies, sold parts thereof to Tarakeswar Sarkar. The parts so sold are, as evidenced by the relative sale-deed:

A. Plot No. 600 admeasuring .09 acre under khatian No. 920 of mouza Palasi.

B. Plot No. 600 admeasuring .09 acre under khatian No. 921 of the same mouza.

These two khatians record what is called in settlement diction a small khajna of a total sum of Rs. 99-2-7, linked with another khatian: khatian No. 178, at the same time each khatian has a distinct jama or khajna (rent) of its own Rs. 3-6-6. Naturally, therefore, plot No. 600, as it now stands, after bata plots have been carved out of it, with a total area of 18 acre, appears in both the khatians, but in a hisya (settlement phraseology again) of 8 as each, showing necessarily a moiety area (.09 acre) in each too.

Such are the two hisyas of .09 acre each of plot No. 600: Chittaranjan sold and Tarakeswar purchased: one for Rs. 226 and another for Rs. 225. And such is the sale dated August 31, 1962, on the basis of which Ask Ranjan, a co-sharer, moves the Court for pre-emption with the result already noticed, success in the Court of first instance and reversal of that success in the Court of Appeal below.

Before such sale on August 31, 1962, the vendor Chittaranjan alias Jiban and the Petitioner Asit Ranjan had had some discussion about it, as is apparent from the letter dated August 3, 1962, Ex. D, written by Asit Ranjan to the address of Jiban, and as is the admission too of Asit Ranjan on cross-examination:

It is a fact that there was some talk between me and opposite party No. 2 (Jiban) on the proposed sale of the transferred land to me....

And this is so natural too for two reasons, which emerge from the unchallenged evidence of Asit Ranjan. One, Asit Ranjan''s homestead is contiguous to the land in controversy here. Two, Chittaranjan alias Jiban is the husband of Asit Ranjan''s presumably younger sister. Presumably younger sister, because Asit Ranjan in the letter, just referred to, addressed Jiban as ''kalyania Jiban'', a form of address resorted to by the elder to the younger. But he concludes such letter with pranatah, a form which shows the opposite: Asit Ranjan being the younger. It does not matter which. That Jiban is Asit Ranjan''s sister''s husband is enough.

The letter dated August 3, 1962, needs looking into a little closely. Because it has given rise to divergence of judicial opinion, the Judge in the Court of first instance holding that neither waiver nor estoppel can be spelt out of it, and the Judge in the Court of Appeal below holding just the opposite. The letter, in so far as it is material here, makes the following points to Jiban:

A. Why sell? What, indeed, is the necessity to sell? It is good that you do not go in for a sale.

B. If you continue staying where you are, it will perhaps he definitely a little good from our standpoint.

C. So, can you avoid selling the land, pray, retain it? But if you have made up your mind to sell it, then the price on the foot of what you have expended is beyond my capacity to pay. At the same time, if you sell at the prevailing market rate, I can buy.

D. On the basis of what you have expended so far, the price comes on calculation to Rs. 1,000 a bigha. But the present market value works to Rs. 500 or Rs. 550 a bigha.

E. Now, everything depends on what you think fit. Could I have taken it, it would have perhaps assisted my convenience.

F. Be the position as it may, I shall pass on the detail (to you) through Swaraj.

Such then is the translation of the letter dated August 3, 1962, written by Asit Ranjan, the pre-emptor, the Petitioner before me, to the vendor Chittaranjan alias Jiban. The price at which plot No. 600, with an area of .18 acre, was sold to Tarakeswar twenty-eight days after the letter, is Rs. 226 plus Rs. 225, that is, Rs. 451 in all. It works out to a little less than Rs. 827 a bigha.

In the terms of a letter as this, the Judge in the Court of first instance does not find waiver, the Appellate, judge does. But waiver is the abandonment of a right and is either express or implied-from conduct: Halsbury''s Laws of England, 3rd ed., vol. 14, p. 637. Article 1175, which Mr. Das Gupta, appearing for the opposite party, refers me to. What AIR 1935 79 (Privy Council) which Mrs. Bose, appearing for (he Petitioner, refers me to, lays down on waiver, is more or less a rehash of what goes before a contractual agreement to release or not to assert a right. But does the letter fit such concept? Read as whole and fairly, does it disclose the abandonment on the part of the writer, the Petitioner Asit Ranjan, of his right of pre-emption? To my thinking, it does not. It is no more than a pleading by a brother-in-law to a brother-in-law not to go in for the sale, to consider the price of Rs. 1,000 a bigha Wing too much for him, to reckon the inconvenience the writer will have to face if the sale takes place, etc., ultimately leaving the decision to Jiban, the addressee, and saying that he shall pass oh the detail through-one Swaraj. What was passed on so is any body''s guess. So, abandonment of a right cannot be spelt out of the letter. Persuasion can be. And the last word remains unsaid. It will be said through Swaraj, as the letter puts it.

By having seen, on the foot of this letter, waiver though there is none, the learned Appellate Judge has acted, in the exercise of his jurisdiction, with illegality, that is, in breach of the law which permits the legal inference of waiver to be drawn on facts which do not simply exist here.

This is one consideration. There is still another. The right of pre-emption accrues so soon as the transfer takes place in accordance with law. An application for pre-emption is not the source of the right, but the means of enforcing it. Or, to put it in another way, the application and the requisite deposits are conditions, not of the acquisition of the right, but of its enforcement. See the1 full Bench decision of this Court in Jatindra v. Jatu (1946) 50 C.W.N. 502, including the judgment of the referring Judge B.K. Mukherjee, J. (as his Lordship then was), a case on pre-1938 26F of the Bengal Tenancy Act--Gobardhan v. Gunadhar (1940) 44 C.W.N. 802 and Naresh v. Girish (1935) 61 C.L.J. 360, a case tinder the Mohamedan law of pre-emption. So, in the case on hand, the Petitioner Asit Ranjan''s right of pre-emption accrued on August 31, 1962, the date of sale by Jiban to Tarakeswar. And waiver there can be of a right accrued: Keen v. Biscoe (1878) 8 Ch. D. 201. Hence, the letter of August 3, 1962, cannot give rise to waiver.

Such is Mrs. Bose''s contention which Mr. Das Gupta answers in the manner following:

A. The right exists antecedently to the sale.

B. The right Mrs. Bose contends about is only the secondary or remedial right to follow the thing sold. But there is an earlier right, the primary or inherent right, to the offer of a thing about to be sold.

C. So, waiver there can be of such a right as distinguished from the accrued right.

The contention marked A rests on Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, where the Supreme Court upholds a custom of pre-emption on the ground of vicinage, and that too ''as required by Mohamedan Law''. There, Mukherjee C.J. (then Mukherjee, J.) says:

It is true that the right becomes enforceable only when there is a sale, but the right exists antecedently to the sale the foundation of the right being the avoidance of the inconvenience and disturbances which would arise from the introduction of a stranger into the land...the sale is a condition precedent not to the existence of the right but to its enforceability.

Naturally, Mr. Das Gupta relies upon it. A case is an authority for the proposition it decides, not for one even if it seems to follow logically from the proposition decided in Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, does not decide anything like waive. Again, the Mohamedan law of pre-emption lays down strict rules about demands talab-i-mowasibat (demand of jumping, that is, immediate demand) and talab-i-ishhad (demand with invocation of witnesses), to ascertain which indeed the Supreme Court directed a remit. And the right of pre-emption is not lost, even if the pre-emptor refused to accept the offer to buy before completion of the sale, the reason being that "a valid and perfected sale is a condition precedent to the exercise of the preemptive right", to quote from the minority judgment of Mahamood, J. in Janki v. Girijadat ILR (1885) All. 482 (F.B.) since approved by the Supreme Court in Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, . See, also Mulla''s Mahomedan Law, 14th ed., p. 226, Article 242. Now, if the right of pre-emption is not lost by refusal on the part of the pre-emptor to buy before the completion of sale, inspite of the offer made to him to buy, sure enough, it cannot be lost by waiving his right ''antecedently to'' the sale, let alone the point that no waiver is there in the letter of August 3, 1962. Indeed, that cannot but be so. In the very nature of things, this antecedent right is an inchoate right which must lie dormant, so long as a valid and perfected sale is not there. A right as that, without more, has no remedy either. On that simpliciter no conceivable action in a Court of law can possibly lie. Only when the sale is completed, the pre-emptor knows where he stands and what his, essential right is: whether it is worthwhile to be substituted fox the vendee who, if of a desirable type, may as well be left alone. That is the stage for waiver, not the antecedent stage when he know. Not to nothing about matters which it is essential for him to know. Not being fully informed of his position and rights, waiver, if, any, can never be effectual.

The contention marked B (para. 11) rests on Bishan Singh and Others Vs. Khazan Singh and Another, , a case under the Punjab Pre-emption Act, I of 1913, Section 19, of which enables the vendor to notify the possible pre-emptors that he is about to sell his property at a certain price, and Section 20 of which provides that their right of preemption shall be extinguished if they do not come forward to buy within the prescribed time. So, the primary right, the right to the offer of a thing about to be sold, is right here, but conspicuous by its absence in the West Bengal Non-Agricultural Tenancy Act, XX of 1949. In sum, the Punjab Act creates, by Sections 19 and 20, a statutory waiver, so Ho say, our Act here doing nothing of the kind.

By parity of reasoning in Bhau Ram Vs. B. Baijnath Singh, , which strikes down, as an unreasonable restriction, pre-emption on the ground of vicinage, provided for by statutes, cannot help matters forward for the opposite party. One such statute is the Rewa Preemption Act, 1946, Section 12 and 13 of which are akin to Sections 19 and 20 of the Punjab Act just noticed. The other statute is the Punjab Act itself. The provisions in both prescribing pre-emption on the ground of vicinage are struck down. The third one is the Berar Land Revenue Code, 1928, giving the right of pre-emption to co-occupants in survey numbers, each number generally containing 30 acres. Such co-occupants are really so akin to co-sharers. Hence, the light of pre-emption on that footing, not on the footing of vicinage, survives. More, by Section 174 of the Code, before an Occupant could transfer his interest, he had to give notice of his intension to all other occupants: Radhakishan v. Shridhar Supra. So, the primary right to the offer of a thing about to be sold is in all the three statutes, the Rewa Act, the Punjab Act and the Berar Code, and is not in our Act That apart, for the point I am on now, the preemptive right antecedently to the sale cannot form the basis of an effectual waiver because of the inherent character of such right itself, inchoate, dorment, and not blossoming into an enforceable right, so long as the sale is not completed, thereby keeping the possessor of the right, the possible pre-emptor, in the dark about ail essential matters he must know, and in absence of which effective waiver is out of the question.

Thus the contentions A and B failing, and fail they must, the contention marked C fails too. The first Judge''s finding that there is no waiver stands, the Appellate Judge''s finding to the contrary does not, vitiated as it is by a jurisdictional error--an error, in the exercise of his jurisdiction, in breach of the law on waiver: Chaube Jagdish Prasad and Another Vs. Ganga Prasad Chaturvedi, .

Estoppel is another topic on which the learned Judges have differed, the trial Judge seeing nothing of the kind and the Appellate Judge coming to an exactly opposite conclusion. Estoppel is a rule of evidence. But there is no evidence that the vendee Tarakeswar has changed his position on the basis of the letter dated August 3, 1962 as Mrs. Bose rightly contends, and as Mr. Das Gupta fairly concedes.

But Mr. Das Gupta contends, the Appellate Judge, the last Court of facts, has accepted the evidence of Tarakeswar''s father, Kedar, that the Petitioner Asit Ranj an told of the proposed purchase by his son, gave him to understand that he would not buy, giving Tarakeswar the freedom to go in for the deal: evidence which the trial Judge unfortunately passes by. It is not right to say, as Mrs. Bose does, that nothing like it has been put to Asit Ranjan. His cross-examination bears:

Not a fact that before his purchase O.P. No. 1 (Tarakeswar) asked me to purchase and told that he would not purchase if I would.

Because, in the above cross-examination, Tarakeswar''s name is put as the proposer instead of his father Kedar''s, too much need not be made of. The substance of the matter is there. Still, the finding of the Appellate Judge on this point cannot be sustained for two jurisdictional errors. One, non-examination of other persons present at the time of such communication by Kedar to Asit Ranjan leads the Appellate Judge to find ''complete corroboration'' of Kedar''s version in the letter dated August 3, 1962. He even goes so far as to say:

...only because of this representation conveyed through the...letter...opposite party No. 1 (Tarakeswar) altered his position and purchased the property,

a finding for which there is no soupcon of evidence even and which Mr. Das Gupta with his usual fairness does not support. Then t the last word on the deal is not said in the letter as noticed. So, here is another breach of law: resting a finding of corroboration on no evidence, committed by the Appellate Judge in the exercise of his jurisdiction. Two, this sort of misreading the letter colours and vitiates the learned Judge''s conclusion on Kedar''s version, it being impossible to disentangle such misreading: firming corroboration where there is node: from the finding on Kedar''s evidence. Indeed the finding rests on this manner of misreading. On top of all that the question is, can there be estoppel against statute? The answer is, No. So, here again, the trial Judge''s conclusion on absence of estoppel will stand, the Appellate Judge''s contrary conclusion will not.

Mr. Das Gupta''s contention about promissory estoppel, also known as equitable or quasi-estoppel, may now be noticed: Sat Narain and Others Vs. Union of India (UOI) and Another, , stands on its own facts and does not reach the case on hand. The Plaintiff there (Sat Narain) threw a ''sop'' to the requisitioning authority, by whose order his house was requisitioned: "De-requisition my house, and I shall forego compensation for the period my house, and I shall forego compensation for the period my House is in your occupation". The ''sop'' yielded result. The house was de-requisitioned. Sat Narain, however, could not resist the temptation of suing for compensation: Rs. 50,000, let alone another sum. But promissory estoppel stood between him and his success. Sat Narain and Others Vs. Union of India (UOI) and Another, apart, I have been referred to Halsbury''s Laws of England, 3rd. ed., vol. 15, p. 175, Article 344, the gist of which is that once there has been a promise, intended to affect the legal relations between the promisor and the promisee, and it has been acted upon, the promisor cannot be allowed to revert to their previous legal relations, just as Sat Narain was not allowed to do. Such is the case too of Central London Property Trust Limited v. High Trees House Limited (1947) 1 K.B. 130, where reduction by the lessor of the rent payable by the lessee, because of abnormal conditions, could not bind the lessor, when those conditions were no more. So, that is the test: legal relations before the promise, and the promise affecting such relations, be the relations contractual (lessor and lessee) or not (the requisitioning power under the law, and the citizen whose property is requisitioned). Here, what were the legal relations between Asit Ranjan and Tarakeswar before the promise Kedar attributes to Asit Ranjan? None. A promise creating legal relations between the promisor and the promisee? Let that be regarded as a test too. But what legal relations are created between Tarakeswar and Asit Ranjan foist with a promise by Kedar? None. Hence, this doctrine cannot be pressed into service. Promissory estoppel and absence of legal relations go ill together.

Only another contention of Mr. Das Gupta remains. The right of pre-emption is a weak right, not looked upon with favour by Courts and liable to be defeated by all legitimate Methods such as the vendee allowing a claimant of a superior or equal right to be substituted in his place, or to delay after the contract of sale making the sale deed, in absence of which the title does not pass from the vendor to the vendee, and the right to enforce pre-emption is stalled: Bisan Singh v. Khasan Singh Supra and Radhakishan v. Shridhar Supra. That no doubt is true. The principle appears to be that there are no equities in favour of a pre-emptor who is armed by statute or other law to disturb a valid transaction. To say so, however, is not to say that the right does not exist or has been written off. And I see no legitimate method by which, it can be said, Asit Ranjan''s pre-emptive right has been defeated.

Sunder Singh and Others Vs. Narain Singh and Others, cited by Mr. Das Gupta, has this for its ratio amongst other. By virtue of Section 24 of the Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act v. of 2007 B.K., an owner has the same right in the land, allotted in consolidation proceeding, as he had in his original holding. That being so, the pre-emptor follows the land sold, as also the land allotted in consolidation proceedings in lieu of such land. Such ratio cannot be assimilated to the case in hand.

Nothing more remains to be noticed in the very helpful address it has been my privilege to hear from the bar.

In the result, the Rule succeeds and be made absolute. The order of the Subordinate Judge be set aside and that of the Munsiff be restored, save that each party to pay and bear its costs throughout.