Shivkali Bai and ors. Vs. Meera Devi and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/506289
SubjectCivil;Family
CourtMadhya Pradesh High Court
Decided OnJun-19-1989
Case NumberS.A. No. 484 of 1982
JudgeP.C. Pathak, J.
Reported in1991(0)MPLJ102
ActsHindu Succession Act, 1956 - Sections 8 and 22; Code of Civil Procedure (CPC) - Sections 11 - Order 1, Rule 1 - Order 8, Rules 2 and 6A to 6G ; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 58; Hindu Law
AppellantShivkali Bai and ors.
RespondentMeera Devi and ors.
Appellant AdvocateRavish Agarwal, Adv.
Respondent AdvocateA.U. Usmani, Adv. for Respondent No. 1 and ;S.S. Jha, Adv. for Respondent No. 4
Cases ReferredBajirao Somaji v. Abdul Gaffar
Excerpt:
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- - preference being essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place and the right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. it is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. it is well settled that a litigant has no vested right in any procedure. alterations in procedural law are generally held to be retrospective in the sense that apply to future as well as pending matters. 28. in the present case, the plaintiff failed to aver the legal necessity or the enquiry, if any, made by her to.....
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p.c. pathak, j.1. this judgment shall also govern the disposal of second appeal no. 566 of 1982 filed by smt. meera devi (plaintiff) and second appeal no. 12 of 1983 filed by nanhe lal (defendant no. 4) against a common judgment and decree dated 18-10-1982 in civil appeal no. 21-a of 1981 of the court of the additional judge to the court of district judge, seoni, arising out of civil suit no. 69-a of 1979 of the court of civil judge, class i, seoni and judgment and decree dated 17-1-1981.2. for convenience, the genealogy of the defendants is reproduced:- roop chand (died 1960) | --------------------------------------------- | | | nanhe lal radhe lal sahiblal (dead) (deft. no. 4) | widow shivkali bai | (deft. no. 3) | ----------------------------------------- | | kanchan singh mohan singh.....
Judgment:

P.C. Pathak, J.

1. This judgment shall also govern the disposal of Second Appeal No. 566 of 1982 filed by Smt. Meera Devi (plaintiff) and Second Appeal No. 12 of 1983 filed by Nanhe Lal (defendant No. 4) against a common judgment and decree dated 18-10-1982 in Civil Appeal No. 21-A of 1981 of the Court of the Additional Judge to the Court of District Judge, Seoni, arising out of Civil Suit No. 69-A of 1979 of the Court of Civil Judge, Class I, Seoni and judgment and decree dated 17-1-1981.

2. For convenience, the genealogy of the defendants is reproduced:-

Roop Chand (died 1960)

|

---------------------------------------------

| | |

Nanhe Lal Radhe Lal Sahiblal (dead)

(Deft. No. 4) |

Widow Shivkali Bai

| (Deft. No. 3)

|

-----------------------------------------

| |

Kanchan Singh Mohan Singh (Deft. No. 3)

(Deft. No. 1)

|

Wife Maltibai (Deft. No. 5)

|

Son Santosh Kumar (Deft. No. 6)

3. Roop Chand had three sons, namely, Nanhe Lal, Radhe Lal and Sahib Lal. Sahib Lal predeceased Roop Chand, who died in 1960. After Roop Chand s death, the defendants and Radhe Lal partitioned their joint family property by registered deed of partition dated 17-9-1965. Khasras Nos. 260, 263 and 265, total area 17.51 acres fall to the share of the branch of Sahib Lal represented by defendants Nos. 1 to 3, 5 and 6. There was no partition amongst them and the suit lands were jointly held by these defendants.

4. Plaintiff Smt. Meera Devi brought a suit for partition and allotment of 2/3rd share of the suit lands to the share of defendants Nos. 1 and 2 and for possession or for possession of any other land of equal value and lastly for a direction to the defendants to render accounts of mesne profits from 5-2-1968 till the date of suit and thereafter till the delivery of possession of the lands on the allegations that in pursuance of agreement dated 10-1-1968 (Ex.P-1) she purchased the suit Khasras Nos. from defendants Kanchan Singh and Mohan Singh on consideration of Rs. 8,000/- by registered sale deed dated 5-2-1968 (Ex.P.-2). She had earlier filed Civil Suit No. 81-A of 1969 in the Court of 1st Civil Judge, Class II, Seoni, for possession of the suit khasra numbers, which was dismissed by judgment dated 23-2-1970. First Civil Appeal No. 34-A of 1970 was also dismissed on 14-8-1970 by judgment Ex.P-3 affirming the judgment of the trial Court observing that she was not entitled to be placed in possession of the property purchased by her and her only remedy was to sue for general partition and to ask for allotment of the property purchased by her to the share of her vendors and to claim possession of the property purchased or any other property of equivalent value. Therefore, she instituted the present suit on 28-11-1970 with the prayers for the aforesaid reliefs. The plaintiff pleaded that out of the consideration of Rs. 8,000/-, a sum of Rs. 3,000/- was paid to defendants 1 and 2 in cash on the date of agreement and the balance of Rs. 5,000/- was to be paid at the time of execution and registration of the sale deed. By amendment, the plaintiff pleaded that out of the said Rs. 5,000/-, the parties agreed that the plaintiff would repay Rs. 3,000/- directly to the creditor of vendors Seth Mangilal, Rs. 132/- towards Takavi loan and Rs. 210/- towards land revenue to the Government and the balance of Rs. 1,658/- was paid before the registering officer. In alternative the plaintiff pleaded that the payment of full consideration to the vendors was not a condition precedent to the passing of the title and that she acquired title from the moment the sale deed was registered in her favour.

5. Defendants Nos. 1 and 2 were proceeded ex parte. Defendant No. 3 filed written statement opposing the claim. She denied the payment of consideration and execution of the sale deed. The plaintiff paid Rs. 1,600/- only. They were not indebted to Mangilal. The plaintiff neither paid Rs, 3,000/- to Mangilal nor Rs. 210/- towards arrears of land revenue or Rs. 132/- towards takavi loan to the Government. Thus, full consideration was not paid and the title did not pass. She further submitted that on 20-7-1967, the defendants 1 to 3 agreed to sell the suit land for consideration of Rs. 10,000/- to defendant No. 4 for marriage of her daughter Kantibai to the knowledge of the plaintiff. She opted to avoid the sale deed in plaintiff's favour in exercise of her right of pre-emption Under Section 22 of the Hindu Succession Act, 1956 and to purchase the suit land on reasonable price. She denied liability to any mesne profits and lastly the defendants 1 and 2 could not seal more than their 4/9th interest in the suit tend.

6. Defendant No. 4 also denied the claim and submitted that in pursuance of agreement dated 20-7-1967 (Ex.D-1), defendants 1 to 3 agreed to sell the suit land on consideration of Rs. 10,000/- and delivered possession to him in part performance of the contract. The plaintiff had knowledge of this prior agreement, in pursuance of which the defendants 1 to 3 executed sale deed Ex.D-2 on 21-2-1.970. Other defences are similar to those raised by defendant No. 3. By order dated 25-2-1977, the defendant No. 5 Maltibai and the defendant No. 6 Santosh Kumar were added as parties to the suit. Maltibai through her separate written statement denied the entire claim. She also opted to exercise right of pre-emption available to her. In addition she submitted that the defendant No. 1 was addicted to liquor. Plaintiff's husband is a money lender. He obtained the sale deed in lieu of some loan by exerting under undue influence. The sale is without consideration and no title passed to the plaintiff.

7. The learned trial Court dismissed the suit on the findings that the plaintiff was not the real purchaser and her husband negotiated the transaction and he nominally put his wife's name as purchaser; out of the total consideration of Rs. 8,000/-, the defendants 1 and 2 received Rs. 3,000/- on the date of agreement and Rs. 1,658/- on the date of registration total Rs. 4, 658/-; there was no agreement between the parties that the non-payment of the balance of the consideration would prevent the passing of the title; the sale was to repay the loan and arrears of land revenue and takavi; Kanchan Singh being the eldest male member is the Karta of the joint family and the transfer of the suit lands by him is binding on all the defendants except defendant No. 4; agreement Ex.D-1 in favour of the defendant No. 4 is not genuine; sale deed Ex.D-2, was executed with intent to frustrate the sale deed Ex.P-2, and therefore, the defendant No. 4 acquired no title thereunder. The suit was dismissed mainly on finding that she was not the real purchaser.

8. The plaintiff filed first appeal which was partly allowed and the plaintiff's suit was decreed to the extent of 4/9th share in the suit property and she was declared entitled to get the same by partition by metes and bounds. Accordingly, a preliminary decree for partition was passed in her favour.

9. Aggrieved by the judgment of the first appeal Court, defendants 3, 5 and 6 have filed second appeal No. 566 of 1982 for passing a decree for the entire suit property while defendant No. 4 has filed Second Appeal No. 12 of 1983 for dismissal of the plaintiff's suit on the basis of the sale deed Ex. D-2 in his favour as also on other grounds.

10. In all the three second appeals the substantial questions of law were framed as per respective order-sheet dated 17-1-1983.

11. The question for decision is whether the lower appeal Court on wrong premises disallowed the claim of pre-emption, by the defendants 3, 5 and 6 Under Section 22 of the Hindu Succession Act, 1956 (hereinafter called the Act). Defendant No. 3 raised specific plea in para 12(e) of the written statement claiming preferential right to purchase the suit lands on reasonable price. Defendant No. 5 also raised similar plea in para 12(d) of her written statement. The learned trial Court took notice of the pleas in para 7 of his judgment, but omitted to raise any issue on them. Before the lower appeal Court, the defendants reiterated their right of pre-emption as one finds in paras 34 to 36 of his judgment. The appeal Court held that the defendant No. 3 has the right of pre-emption in respect of the suit property but declined to give any relief to her son the grounds that she did not comply with the mandatory provision of Section 22(2) of the Act by making an application for determination of the consideration by the Court and that she did not express her willingness to acquire the suit property for the consideration that may be determined.

12. Learned counsel for the defendants submitted that the defendant No. 3 has been ready and willing to acquire the suit property on a reasonable price that may be determined by the Court. No separate application is essential since the necessary averments are in the written statement itself. He also submitted that such an application is essential only 'in the absence of any agreement between the parties'. In the present case, the vendors being the sons and the pre-emptor being the mother, there is no disagreement. At any rate, there is no material on record to show any disagreement as to the consideration.

13. Learned counsel for the plaintiff submitted that in order to exercise right of pre-emption Under Section 22 of the 'Act', the defendant No. 3 has to file a separate suit as held in V. Sreedevi Amma v. Subhadra Devi, AIR 1976 Kerala 19, Tarak Das v. Sunil Kumar, AIR 1980 Cal. 53 and Chhatoi v. Adikanda Chhatoi,, AIR 1988 Orissa 285, and mere raising a plea in the written statement is not enough.

14. The right of pre-emption is not a right to a thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. The pre-emptor has a secondary right or a remedial right to follow the thing sold. It is a right of substitution but not of re-purchase i.e. the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. Preference being essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place and the right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. Bishan Singh and Ors. v. Khazan Singh and Anr., AIR 1958 SC 838. The right of pre-emption 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 inconveniences and disturbances which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner's right of sale and compels him to sell the property to the person entitled to pre-emption under the statute. Hazari and Ors. v. Neki, AIR 1988 SC 1205.

15. Section 22 of the 'Act' of 1956 confers preferential rights to acquire property to the case of devolution of property upon heirs of class I of the Schedule. No procedure is laid down how the said right of pre-emption is to be exercised. In Valliyil Sreedevi Amma v. Subhadra Devi and Ors. (supra), it was held that the remedy of co-heirs to enforce their preferential right Under Section 22(1) of the Succession Act is by way of regular Civil Suit before a competent Civil Court and not by way of an application Under Section 22(2) of the Act. This was followed in Tarak Das v. Sunil Kumar (supra), and Orissa High Court in a recent judgment in Bhagirathi Chhatoi v. Adikanda Chhaloi (supra). In Civil Revision No. 239 of 1977, Pyarsingh v. Dhansingh dated 4-10-1979, annotated in M.P.S.R.T. Corporation v. Heeralal Ochhelal and Ors., 1980 MPLJ (SN) 14 it was held that the remedy of the co-heirs is not by an application but is by a suit. The Gwalior Bench of this Court in Ghewarwala Jain v. Hanuman Prasad and Anr., AIR 1981 MP 250, following the Kerala decision (supra) also held that when the property has already been transferred, the remedy of the co-heirs is to file a suit.

16. In Narhar v. Gullu, AIR 1931 Nag. 110, it was held that the right of pre-emption is Berar must be claimed at the time the sale takes place and it cannot be raised as a defence to a suit for possession. It is only a vested and ascertained right which could be pleaded as an answer to any suit and that the right of pre-emption, being inchoate, gives no such vested right to co-sharers as to entitle them to resist the claim for possession by pleading it in bar of the suit. This was followed in Krishnabai v. Madhukar Sitaram, AIR 1946 Nag. 367. In this case, one Mahadeo sold two acres of land to the stranger Krishna Rao. Krishna Bai filed a suit for pre-emption available to her Under Section 174(1) of Berar Land Revenue Code, 1928. During the pendency of the suit, the purchaser sold the land to Madhukar, defendant No. 2, who contended that he had a superior right of pre-emption as he was more nearly related to Mahadeo and that the suit was not maintainable against him. His defence was overruled in the trial Court. It was held that though Madhukar had superior right, capable of being enforced by a suit at the time when he purchased the interest from Mahadeo, he cannot claim substitution on the basis of the repurchase. The right of pre-emption in Berar is based on specific provisions of Berar Land Revenue Code and it is to be exercised in the manner provided in that enactment. Therefore, it was held that the lawful course open to Madhukar was to file a suit as required by Section 174(1) on the basis of Mahadeo's original sale to Krishna Rao and not by raising a defence on the basis of re-acquisition of the interest from the stranger purchaser.

17. Krishnabai's case (supra) was overruled by Full Bench decision in Ramdeo and Anr. v. Gangabai and Ors., AIR 1952 Nag. 51. The Bench held that there is nothing in the theory of substitution which militates against transfer of a property to the pre-emption by a purchaser. If the transfer be in recognition of right of the pre-emption, the purchaser cannot be regarded as making a fresh transfer but can only be regarded as permitting substitution of the pre-emptor in place of the purchaser in the original transfer. It was further held that having regard to the procedure, both the questions, the right to frame and right to avoid subsequent transfer, may be raised and decided in the same suit, they cannot be mixed up, they require separate consideration.

18. By Section 58(iv) of the Code of Civil Procedure (Amendment) Act, 1976 (No. 104 of 1976), Rule 6-A to Rule 6-G were inserted in Order 8 of the Code providing for counter claims. Even before amendment, the right to file counter claim was available Under Rule 6 of Order 8; the only rider being that the claim must be for recovery of money. See Laxmi Das v. Nanabhai, AIR 1964 SC 11. There is nothing in the Rules which precludes a Court from treating a counter claim as a cross suit.

19. Rule 6-A of Order 8 of the Code of Civil Procedure is reproduced for ready reference:

'6.A. Counter claim by defendant. - (1) A defendant in a suit may in addition to his right of pleading a set-off Under Rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of the claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.'

20. In Pathrose Samual and Anr. v. Karumban Parameshwaran, AIR 1988 Kerala 163, to counter-claim was held substantially to be a cross suit. It is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. It need not be an action of the same nature as the original action or even analogous thereto, even though the claim has to be one entertainable by the Court. Rule 6-A does not limit such claims to money suits. Similar view was taken in Suman Kumar v. St. Thomas School and Hostel and Ors., AIR 1988 P. and H. 38. In Mehendra Kumar and Anr. v. State of Madhya Pradesh and Ors., AIR 1987 SC 1395, the Supreme Court held that Rule 6-A(l) does not bar the filing of a counter-claim by the defendant after he had filed a written statement. Rule 6-E provides that if the plaintiff fails to put in a reply to the counter-claim, the Court may pronounce judgment against the plaintiff or may make such order as it thinks fit. Rule 6-G provides that the rules relating to written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.

21. If counter claim is in the nature of cross-suit and is not restricted to money suits, there is no reason why a defendant cannot advance a claim based on right of pre-emption in his written statement. Whatever may have been the law before insertion of Rules 6-A to 6-G, there seems to be no bar in the Code now to put in such claim in the same suit. The first case Under Section 22 of the Act laying down that an independent suit ought to be filed, was decided in January 1975, and as such, there was no occasion to consider the impact of Rule 6-A. The other decisions including of this Court also did not examine whether even after insertion of Rule 6-A, it was essential for the pre-emptor to file an independent suit and could not seek relief by raising a plea in his written statement itself.

22. With utmost respect to aforesaid judgments, I am unable to agree that a defendant cannot resist a suit of a 'stranger' for partition and possession by asserting his right of pre-emption in his defence. Rule 2 of Order 8, Civil Procedure Code also provides that defendant must raise by his pleadings all matters which show the suit not maintainable or that a transaction is either void or voidable in point of law. This Court in Narhar's case (supra) and Kerala High Court in Valliyil Sreedevi Amma v. Subhadra Devi and Ors. (supra) rightly held that the alienation of his interest by a co-heir in violation of Section 22(1) of the Succession Act is not void but is voidable at the instance of the other non-alienating co-heirs. Rule 2 of Order 8, Civil , Procedure Code requires the defendants to raise pleas in the written statement that the sale deed in favour of the plaintiff is voidable at his instance. The omission to raise such a ground in his defence may attract constructive res judicata within the meaning of Explanations IV to VI of Section 11 of the Code of Civil Procedure. That is why in Bimal Jati v. Biranja Kuar and Ors., ILR 22 All. 238, a mortgagee with a right of pre-emption created in his favour by the mortgage deed, was allowed to set it up in a suit for redemption. In Krishna Menon v. Kesavan and Ors., ILR 20 Mad. 305, a defence based on right Of pre-emption was allowed to be raised. The only rider to such a defence was that his right of pre-emption should be enforceable i.e. should not be barred by limitation. See Sabed Ali v. Sahatulla, 42 CWN 1028.

23. In the Kerala case, the learned Judges observed that Section 22 of the Act creates right without prescribing any procedure for its enforcement. Therefore, they held that ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their right Under Section 22(1) and that remedy is by way of a regular civil suit.

24. The Kerala case and others following it were cases in which the pre-emptor attempted to establish his right by making an application Under Section 22(2) of the Act, which is not the case here. Here a positive defence based on right of pre-emption has been raised in the written statement itself. Even if it is conceded that such a right could not be claimed in defence, there is no bar now, after insertion of Rules 6-A to 6-G in Order 8 of the Code of Civil Procedure. I am, therefore of the opinion that the right of pre-emption can be claimed in the written statement.

25. It was also urged that Rules 6-A to 6-G of Order 8, Civil Procedure Code are not retrospective and would not be attracted since the suit was filed on 28-11-1970. The argument is devoid of substance. It is well settled that a litigant has no vested right in any procedure. Alterations in procedural law are generally held to be retrospective in the sense that apply to future as well as pending matters. See Anant Gopal Sheoray v. State of Bombay, AIR 1958 SC 915.

26. The next question for decision is whether alienation made by the defendants 1 and 2 is not binding on defendants 3, 5 and 6. The first appeal Court held that the sale was for legal necessity though for want of full consideration, the estate of minor defendant Santosh Kumar was not benefited and Maltibai did not get any consideration. The finding of the Court below is at variance with the discussion. Therefore, the question needs to be examined afresh.

27. There cannot be any dispute that burden lay oft the alienee to prove either that there was a legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity or that he did all that was reasonable to satisfy himself as to the existence of such necessity. See Sunil Kumar v. Ram Prakash, AIR 1988 SC 576. The existence of a necessary purpose is not the same as legal necessity, for, there may be much resources, much income making a loan unnecessary. The lender must show the necessity for the loan. Ganpat Rao v. Iswar Singh, AIR 1938 Nag. 816. Where money has been borrowed by the manager and the lender seeks to render the whole family property including the shares of the other members of the family liable for the debt, he is not entitled to a decree against the whole family property unless he shows that there was a necessity for the loan. or that he made reasonable enquiry as to the necessity for the loan. Mt. Mauli v. 'Lala Brij Lal and Ors., AIR 1943 Lahore 33 (F.B.). In Smt. Rani and Anr. v. Smt. Santa Balal Debnath and Ors., AIR 1971 SC 1028, it was held that the recitals in the deed may be used to corroborate other evidence of legal necessity but the weight to be attached varies according to the circumstances of each case.

28. In the present case, the plaintiff failed to aver the legal necessity or the enquiry, if any, made by her to ascertain the existence of the necessity. In the absence of plea, the evidence led by the plaintiff cannot be looked into. The only witness examined by her is Mangal (P.W.2). He stated that defendants Kanchan and Mohan Singh were indebted to one Mangilal for the sum of Rs. 3,000/- and the dues towards land revenue and tacavi were Rs. 400/-. The witness nowhere stated that on verification he found the vendors really indebted to Mangilal or that the tacavi and the arrears of land revenue were due. The witness added that Kanchan Singh and Mohan Singh told him that they needed money for the marriage of their sister and also for agriculture. In cross-examination he admitted that he made no enquiry before the bargain for the suit land. He further admitted that Rs. 3,000/- to Mangilal and Rs. 400/- towards the alleged arrears of tacavi and land revenue were never paid by him.

29. Sheokalibai (D.W.I) stated that her daughter's marriage was performed just one year after the partition amongst them. She denied that they had taken any loan from Mangilal, or as tacavi from State Government. She also denied that the land revenue was in arrears. Nanhe Lal (D.W.2) stated that Kantibai's marriage was performed in Phalguna, 1967, i.e. before the execution of sale deed Ex.P-2. The plaintiff failed to examine Mangilal to prove the indebtedness and also produced no documentary evidence like demand notice to show that the land revenue and tacavi loan were due against the defendants.

30. The plaintiff thus miserably failed to discharge her burden by pleading and proving the legal necessity. The necessity shown in Exs. P-1 and P-2 is at variance with the oral statement of Mangal. It has to be borne in mind that the recital of legal necessity is not the evidence of such a necessity without substantiation by evidence aliunde Smt. Rani and Anr. v. Smt. Santa Bala Debnath and Ors. (supra). It must, therefore be held that the title did not pass to the plaintiff since full consideration was not paid, cannot be accepted. There is no evidence to show that defendants 1 and 2 did not intend to convey title until payment of whole consideration.

31. The next question for decision is what is the share of Kanchan Singh and Mohan Singh in the suit land. Sahiblal left behind his widow Sheokalibai, two sons Mohan and Kanchan Singh and one daughter Kantibai who is not a party in the suit. The Court below held that the alienation by Kanchan Singh is valid to the extent of his l/9th share and by Mohan Singh to the extent of l/3rd share total to the extent of 4/9th share only. This finding is based on the division of the ancestral property into three shares among defendants 1 to 3. Obviously, right of Kantibai, a Class I heir, was not at all taken into account. If that is also taken into account, the defendants 1 to 3 each will get only l/4th share. Kanchan Singh could not alienate the shares of Maltibai and Santosh Kumar. Therefore, transfer by Kanchan Singh is valid to the extent of his l/12th share only. Mohan Singh's share comes to 1/4 only. Therefore, the sale in plaintiff's favour is valid to the extent of 1/3 (1/12 + 1 4) share only and not 4/9, as found by the Court below.

32. Next question is whether the non-joinder of daughter Kantibai is fatal to the maintainability of the suit. It is no more in dispute that Sahiblal left behind a daughter Kantibai also. She was, therefore, a necessary party, being Class I heir, in the suit for partition filed by the plaintiff. She could not be represented by any other heir of Sahiblal. The fact that Kantibai is left behind by Sahiblal, was well known to the plaintiff. The plaintiff has so far not made any application to implead Kantibai as a party in the suit. The suit is thus bad for non-joinder of a necessary party and is liable to be dismissed.

33. The next question for decision is whether the dismissal of the plaintiffs suit on the ground of non-joinder of necessary party does not affect the counter-claim of the defendant No. 3. Counter-claim being in the nature of cross-suit, is not affected by the dismissal of the plaintiff's suit. The counter-claim has to be disposed of on merits. After the amendment of 1976, the pending suits are governed by the new provisions. Even though the counter-claim was made in the written statement, the plaintiff did not seek leave to file additional written statement in answer to the counter-claim of defendant as provided Under Rule 6-A(3) of Order 8 of the Code nor did the plaintiff apply to the Court for an order that such counter-claim may be excluded, as provided in Rule 6-C. In other words, the plaintiff discontinued her claim in the sense that she did not raise any issue to the counter claim. Therefore, the defendant No. 3 is entitled to a decree of her claim as provided Under Rule 6-E of Order 8 of the Code. See Daga Films v. Lotus Production and Ors., AIR 1977 Cal. 312 and Bhim Sain v. Laxmi Narain, AIR 1982 P. and H. 155. In view of the foregoing discussion, the defendant No. 3 is entitled to a decree for pre-emption of her right in the suit lands.

34. The next question for consideration is how much amount the defendant No. 3 is liable to deposit as the pre-emptive price. As held above, the defendants Nos. 1 and 2 sold more than they lawfully could. They had only 1/3 share in the suit property. The sale in plaintiff's favour is, therefore, valid only to the extent of 1/3 share. The sale of remaining 2/3 of the suit property is, therefore, invalid. The plaintiff paid Rs. 4,658/- only. In the absence of any evidence of the market value, the sum actually paid is taken to be a proper value. See Natha Singh and Ors. v. Sunder Singh and Ors., AIR 1926 Lah. 10, Jai Devi Kunwar v. Kalyan Singh and Ors., 128 All L. J. Report 541 and Zahur Ahmad v. Moharram Ali, 56 Indian Cases 34.

35. As discussed above, Rs. 4,658/- were paid towards consideration by the plaintiff for the entire suit property. The value of 1/3 share comes to Rs. 1,552.66 p., in round figure Rs. 1,553.00. The defendant No. 3 cannot be expected to pay for her own property. She need only pay a proportionate price for the property over which she has a right to pre-emption. See Durga v. Munshi and Ors., ILR 6 All. 423. On deposit of this amount in the Court within two months from today the defendant No. 3 will be deemed to have been substituted in place of the plaintiff in the sale deed Ex.P-2. No fresh registered document of sale is necessary for passing of title. Bajirao Somaji v. Abdul Gaffar, AIR 1949 Nag. 338. The right of the pre-emption claimed by defendants Nos. 4 to 6 is not tenable since their claim is not superior to that of defendant No. 3.

36. It was also argued that the property had already been sold by defendants 1 to 3 to defendant No. 4. The Court below found the sale deed in favour of defendant No. 4 as fraudulent without consideration and no title passed to him. These fidings are essentially of facts which cannot be re-opened in second appeal. His claim was rightly dismissed by the first appeal Court.

37. In view of the foregoing discussion, Second Appeal No. 484 of 1982 is allowed. The judgment and decree passed by Court below is set aside and instead the plaintiffs suit is dismissed. Defendant No. 3's counter claim of pre-emption is decreed as aforesaid and decree be drawn in her favour as provided in form prescribed Under Order 20, Rule 14 of the Code of Civil Procedure.

38. The appeal No. 566 of 1982 filed by the plaintiff is dismissed so also the appeal filed by the defendant No. 4 Nanhe Lal i.e. S.A. No. 12 of 1983 is dismissed. Defendants in Second Appeal No. 484 of 1982 shall be entitled to costs. The defendant No. 3 will be entitled to costs from the plaintiff. Defendant No. 3 shall be entitled to deduct the costs recoverable from the plaintiff from the purchase money which she is required to deposit in the trial Court. Counsel's fee Rs. 300/-, if certified.