B KRISHNA KUMAR Vs. THAKUR MAN SINGH

JUDGEMENT

(1.) The question that arises for decision in the present appeal is whether the dismissal of a suit for pre-emption brought by the manager of a joint Hindu family bars a subsequent suit for pre-emption by the junior members of that family with respect to the very property which formed the subject of the earlier pre-emption suit. The decision of the question is dependent to a great extent on the answer to the question whether the refusal by the manager of a joint Hindu family to purchase the property sought to be pre-empted is or is not binding on the other members of the family. The question arises under the following circumstances:

(2.) On 21 June 1935 defendant 3 sold certain zamindari share in village Umarpur to defendants 1 and 2 hereinafter referred to as the vendees. It is common ground that the vendees were complete strangers to the village. Har Sahai, the elder brother of Krishna Kumar, who is the plaintiff-appellant in the present appeal, filed a suit for pre-emption against the vendees. That suit was numbered as Suit No. 689 of 1935. The vendees contested the suit inter alia on the ground that Har Sahai himself had negotiated the sale in their favour and that they had made the purchase after the refusal by Har Sahai to purchase the property. They therefore contended that Har Sahai was estopped from maintaining the suit. This contention of the vendees found favour with the Courts below and those Courts dismissed Har Sahai's suit. A second appeal was filed in this Court by Har Sahai and has been dismissed by me. A few days after the dismissal of Har Sahai's suit Krishna Kumar, plaintiff-appellant, filed a suit for pre-emption with respect to the same property and that suit has culminated in the present appeal. Krishna Kumar's suit was based on the allegation that he was separate from Har Sahai and that he as a cosharer in the village was entitled to pre-empt the sale in favour of the vendees. The vendees contested the suit inter alia on the ground that Har Sahai and Krishna Kumar were members of a joint Hindu family and that the dismissal of Har Sahai's suit barred the present suit.

(3.) The trial Court held that Krishna Kumar was separate from Har Sahai and on this ground overruled the plea of res judicata raised by the vendees and decreed Krishna Kumar's suit. On appeal by Krishna Kumar the lower Appellate Court held that Har Sahai and Krishna Kumar were members of a joint Hindu family and that the decision in Har Sahai's suit operated as res judicata in the present litigation. In view of this finding, the lower Appellate Court reversed the decree of the trial Court and dismissed Krishna Kumar's suit. Krishna Kumar has come up in second appeal to this Court, and it is contended on his behalf that the dismissal of Har Sahai's suit could not adversely affect his right to pre-empt the sale in favour of the vendees. It is argued that every member of a joint Hindu family is entitled in his individual capacity to maintain a suit for pre-emption, even though the claim of the manager of the family for pre-emption may have failed or even though the manager may have refused to purchase the pre-empted property. In my judgment the decision of the lower Appellate Court is correct and this appeal must fail.