- (1.) This appeal is on behalf of four minor plaintiffs whose suit for the possession of some agricultural land on the basis of their superior right of pre-emption had at first been dismissed by the Subordinate Judge Third Class, Kaithal, by judgment dated 26th August, 1966, and then by the Additional District Judge, Karnal, by judgment dated 17th October, 1967. It was held by both the Courts below that the suit being collusive the plaintiffs were not entitled to the decree prayed for by them.
(2.) The land in dispute was sold by Puran, Hari Singh and Lachhman who were related as brothers and by Ramji Lal. They had at first been impleaded as defendant Nos. 1 to 4 but were subsequently given up by the plaintiffs while the suit was still before the trial Court. The sale took place on 2nd June, 1965, by a deed registered on 4th June, 1965, for Rs. 14,730/- in favour of Mehar Singh, Kehar Singh and Surat Singh. Out of them, Kehar Singh and Surat Singh were minors and they are still being represented before this Court by their guardian ad litam Mr. O.P. Goyal, an Advocate. All the four plaintiffs were minors at the time of the sale and their ages ranged from two to five years. Ram Pal and Prem minor plaintiff Nos. 1 and 2 are the sons of Puran. Raghuvir minor plaintiff No. 3 is the son of Hari Singh, and Parkash minor plaintiff No. 4 is the son of Ramji Lal. They have sued through their respective mothers as their next friends. The plea of the defendants on the basis of which the plaintiff's suit was dismissed was couched in the following words :- "The suit is a collusive and benami one. Plaintiffs as named in the title of the suit are not the real plaintiff(s). They are benami. Deft. Nos. 1 to 4 the vendors are the real plaintiffs. The suit merits dismissal with costs." Issue No. 3 which was meant to cover the above-said plea was framed as follows :- "Whether the suit is collusive ? If so, its effect ?" Puran PW 1 who is one of the vendors, Kamla PW 2 who is the wife of Puran and Ratno PW 3 wife of Hari Singh, another vendor, were examined by the plaintiffs so as to prove their relationship with the vendors, as it was being denied by the vendees that they were the sons of the vendors. During the course of the cross-examination of these witnesses, some such answers were obtained from them upon which the whole of the case of the defendants is based. Puran admitted that his sons plaintiff Nos. 1 and 2 were residing with him. In respect of the other plaintiffs he admitted that they were residing with their own parents. He then deposed that he and that the other vendors had got the pre-emption suit filed. Immediately, thereafter he added the plaintiffs themselves had sued. There is then this material admission made by Puran that he and the other witnesses had been called by the lawyer engaged by the plaintiffs. A letter was said to have been received in this connection and the witnesses had, therefore, attended the Court for giving evidence. Kamla also said during the course of her cross-examination that the suit was got filed by her husband Puran. It was also admitted by her that he was defraying the expenses of the suit. Ratno only deposed about the age of her son Parkash as being four or five years. She was then asked as to whether all the plaintiffs had come together for the filing of the suit. She, however, said that all of them had come separately. The trial Court took this view that the suit had been filed at the instance of the vendors and, therefore, it was held to be collusive. The finding given by the lower appellate Court was also the same and while giving that finding what the witnesses had stated before the trial Court was repeated. That Court also cited Mst. Dhapan v. Shri Ram, etc.,1959 PunLR 774, in support of the finding given by it. There was absolutely no evidence of collusion in the present case. All the plaintiffs were minors and two of the vendee-defendants were also minors. They could not have joined together in thinking of a certain plan in which one party was to file the suit and the other was to agree to the passing of the decree. What the Courts below meant by collusion seems to be that the vendors themselves wanted to regain the possession of the land in dispute by getting the pre-emption suit filed through their sons. It had not at all been pleaded that the vendees had made this kind of arrangement with the vendors that the latter should get the suit filed through their sons and thereafter the vendees were to obtain back the properties from them. Even if it were to be held that the vendors provided the expenses for the litigation for enabling their wives to sue on behalf of the minor plaintiffs and then get a decree in their favour, it would not lead to the dismissal of the suit. The minor plaintiffs had an independent right of claiming possession of the property sold by their respective fathers and somebody on their behalf could make an arrangement for spending upon the litigation. Whoever acted as the next friend of the minor plaintiffs had the right to get reimbursement of the expenses from the minor plaintiffs. It could not be said that the right of pre-emption should be lost to a minor because he did not have any money of his own with him. There is no authority to my knowledge in which the suit of any minor plaintiff might have been defeated simply for this reason that his mother procured money from another person for the filing of the suit. The authority relied upon by the lower appellate Court did not relate to such a case in which the right of any minor plaintiff was defeated by proving that his father spent upon the ligitation. In that case Surji defendant No. 2 had sold the land to Parbhati defendant No. 1. Two plaintiffs then instituted a suit for possession by way of pre-emption. They claimed the right of pre-emption on the ground of being collaterals of Chhaju husband of defendant No. 2 and of Amar Singh, her son, being entitled to succeed to the estate in question in preference to defendant No. 1 who was not related to the last male holder. Subsequently, an amended plaint was filed in which it was mentioned that another woman Mst. Dhapan wife of Parbhati had secured a collusive pre-emption decree. It is in this context that it was said to be well settled that the right of pre-emption being a piratical right, it was open to a vendee to defeat the plaintiff pre-emptor who is an aggressor by all legitimate means. There is then this remark that if the vendee's wife can claim in her own person a superior right of pre-emption the exercise of such a right can on no principle of law or of equity be considered to be an illegitimate mean. The mere fact that she happens to be the wife of the vendee would not label the exercise of this right to be either inequitable or illegitimate or contrary to sense of justice. There is then this further remark in this authority that a collusive decree is not the same thing as a fictitious decree. Collusive pre-emption decree merely means that the vendee has agreed to let the plaintiff pre-emptor exercise his right without contest by a sort of previous arrangement and if the pre-emption has indisputably a superior right of pre-emption then absence or want of contest cannot taint the decree with illegal or objectionable collusion which would in any way adversely affect its validity or enforceability. In the beginning of this discussion, this remark had been passed that a vendor cannot be permitted to approbate and reprobate and go back on a solemn contract of sale by putting forward his minor son as a mere dummy or a figure-head plaintiff to institute and prosecute a suit for pre-emption. The lower appellate Court acted on this remark which, to my mind, was in the nature of obiter dicta. Thus, the reported case can be treated as an authority on its own peculiar facts. There is absolutely no justification for giving a finding in this case that the suit of the plaintiffs has to fail simply because their respective father had been spending on the litigation.
(3.) It was held by the trial Court that over and above the sale consideration the vendee-defendants were further entitled to the payment of a sum of Rs. 966/- by way of stamp and registration charges. This finding of fact had not been challenged by the plaintiffs before the lower appellate Court. No contest was raised in this behalf even in this Court.;