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Nathoo And Anr. vs Hori Lal

High Court Of Judicature at Allahabad|26 January, 1945


1. This appeal arises out of a suit for pre-emption in which a decree was passed by the lower appellate Court in favour of the pre-emptor. There was in that Court some question of the issue of notice under Section 14, Agra Pre-emption Act, 1922, but it was found as a fact that no notice under that section had been served and that point is not raised in the grounds of appeal. There was also a question whether the pre-emptor was precluded from asserting his right on the ground of estoppel. It was found that he was not so precluded and it is on that ground that the vendees have appealed. The point is based on the allegation that the person through whom the sale was being arranged, a man called Hira Lal, had given a notice to all the cosharers asking whether they wished to buy the property and that the plaintiff together with a number of other cosharers paid no attention to the notice one or the other. The learned Judge came to the conclusion that the plaintiff's failure to pay attention to the notice was no ground for estopping him from exercising his right of pre-emption. In my judgment this decision was right. It was not a fair inference from the failure of the plaintiff to reply to the notice that he did not intend to exercise his right of pre-emption. The position would have been the same if the vendees had gone to the plaintiff personally and asked him whether he intended to preempt and he had given no answer one way or the other. There was no rule of law by which a notice of the nature that was given by Hira Lal compelled the plaintiff to give any reply. If the vendees wished to bind the plaintiff, they ought to have seen that a proper statutory notice was sent to him under the provisions of Section 14, Agra Pre-emption Act.
2. Learned Counsel has referred me to the cases in Oon Mahomed v. Mt. Bint Zohra ('25) 12 A.I.R. 1925 All. 645 and Ranjit Singh v. Bhagwati Singh ('26) 13 A.I.R. 1926 All. 467 in which it was held that a person who had given the impression that he had no intention of pre-empting was estopped from exercising his right. On the finding which I have already expressed this question does not arise in this case, but I must say that I have considerable doubt, with the greatest deference to the learned Judges, whether those cases were properly decided. It seems to me to have been overlooked that the rule of estoppel is that a person is not allowed to deny a fact which he has led some other person to believe, if that other person has changed his legal position on the basis of his belief. I am inclined to think that estoppel deals with questions of fact and not questions of right, or in other words that there is no general rule of law that a man is estopped from asserting a right which he has said that he will not assert. It may be that a man who agrees not to assert a right may in some circumstances be bound by his agreement, but that is a different matter. In a case like the present the fact which the plaintiff might be prevented from denying is that he had no intention to pre-empt at the date of the sale but on the assumption that he had no such intention there appears to be no rule of law under the Agra Pre-emption Act that a per-son who has no intention to pre-empt at the date of the sale is precluded afterwards from changing his mind and deciding to pre-empt. There may be a different rule under the Mahomedan law but that is not the law with which we are concerned. However, in this particular case I think it is sufficient to hold, as I do in agreement with the learned Judge of the lower appellate Court, that the omission of the plaintiff to pay any attention to the notice issued by Hira Lal did not justify the inference that he had waived his right to pre-emption the property. The appeal fails on that ground and is dismissed with costs.
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Nathoo And Anr. vs Hori Lal


High Court Of Judicature at Allahabad

26 January, 1945