Case: Sukhnandan Singh Etc Vs. Jamiat Singh &amp; Ors

in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask designed to give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. In the case of pre-emption it is open to the plaintiff to find financial aid and from any source he likes He has a statutory right to pre-empt the sale and it is no concern of the vendees whether he borrows money from someone or otherwise arranges for finances for pre-empting the sale. It is true that it is a personal right and is not capable of being transferred. And the right of pre-emption being a right of substitution, the vendor also cannot in the garb of a benamidar preempt his own sale. But merely because the vendors who are the fathers of the plaintiff-pre-emptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of pre-emption. The property pre-empted, if they are successful, will belong to them and not to their fathers who were the vendors. Even in the wider sense of the word "collusion" which suggests a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose, would not apply to the present case so as to operate as estoppel against the plaintiffs. Whether or not a pre-emptor-plaintiff who is a benamidar for the vendor or some other party loses his right because of being a benamidar is a question which does not concern us in this case and we express no opinion thereon. On the facts of the present case there is absolutely no material on which the plaintiffs can be held to have lost their right of pre-emption on the ground of collusion. 8. The next point relates to the plea of limitation. Article 10 of the Second Schedule of the Indian Limitation Act provides a period of one year to enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the purchaser takes under the sale, sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the appellants counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Pre-emotion Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants. The argument that use of the expression "subject of the sale" suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptable The expression "physical possession" came up for construction before the Privy Council in Batul Begam v Mansur Ali Khan, (1902) ILR 24 All 17 (PC). Lord Robertson speaking for the Judicial Committee said:"What has to be considered is as the High Court accurately formulated, the question, Does the property- admit of physical possession? The word "physical" is of itself a strong word, highly restrictive of the kind of possession indicated and when it is found, as is pointed out by the High Court that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used,-first in 1859 prescribing "possession", then in 1871 requiring "actual possession" and finally in 1877 substituting the word "physical" for "actual,, it is seen that that word has been very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the High Courts are right in the conclusion they have stated. Their Lordships consider that the expression used by Stuart. C J., in regard to the words "actual possession" is applicable with still more certainty to the words "physical possession" and that what is meant is a "personal and immediate" possession". This view has ever since then been followed by the High Courts in India No decision holding to the contrary was brought to our notice. Indeed, Shri Gosain virtually conceded that there was none to his knowledge. The properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. It was so held in Ghulam Mustafa v. Shahabuddin, 1908 PR 49 (FB). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decisions overruling the dictum in one of the earlier decisions of that Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are, however, unable to find merit in either of them. So far as the question of collusion is concerned it was not clarified by the learned counsel how the plaintiffs could be held to have lost their right of pre-emption merely because their fathers either came to the court with them, which they did openly, or allowed their sons as plaintiff to use in court, copy of a public document procured by the father of one of the plaintiffs. Collusion in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask designed to give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. In the case of pre-emption it is open to the plaintiff to find financial aid and from any source he likes He has a statutory right to pre-empt the sale and it is no concern of the vendees whether he borrows money from someone or otherwise arranges for finances for pre-empting the sale. It is true that it is a personal right and is not capable of being transferred. And the right of pre-emption being a right of substitution, the vendor also cannot in the garb of a benamidar preempt his own sale. But merely because the vendors who are the fathers of the plaintiff-pre-emptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of pre-emption. The property pre-empted, if they are successful, will belong to them and not to their fathers who were the vendors. Even in the wider sense of the word "collusion" which suggests a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose, would not apply to the present case so as to operate as estoppel against the plaintiffs. Whether or not a pre-emptor-plaintiff who is a benamidar for the vendor or some other party loses his right because of being a benamidar is a question which does not concern us in this case and we express no opinion thereon. On the facts of the present case there is absolutely no material on which the plaintiffs can be held to have lost their right of pre-emption on the ground of collusion8. The next point relates to the plea of limitation. Article 10 of the Second Schedule of the Indian Limitation Act provides a period of one year to enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the purchaser takes under the sale, sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the appellants counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Pre-emotion Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants. The argument that use of the expression "subject of the sale" suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptableThis view has ever since then been followed by the High Courts in India No decision holding to the contrary was brought to our notice. Indeed, Shri Gosain virtually conceded that there was none to his knowledge. The properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. It was so held in Ghulam Mustafa v. Shahabuddin, 1908 PR 49 (FB). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decisions overruling the dictum in one of the earlier decisions of that Court.