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TMI Blog1928 (11) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant Ramsaran Das who at the time of the sale was not a co-sharer. 4. On 25th March 1925, Bhagwat Prasad by virtue of his right as a co-sharer brought a suit for pre-emption against Ramsaran Das, the vendee, and Ramsarup, the vendor. On 7th April 1925, that is subsequent to the filing of the suit, but prior to the decree, Ramsaran Das, the defendant vendee, obtained a gift of a share in the Mahal. It will be noted that this suit was brought under the Agra Pre-emption Act of 1922, and one of the questions, in fact the main question, with which we are concerned is whether the Act altered the law as it is admitted to have previously existed. 5. Both Courts decreed the plaintiff's suit repelling the defendant's contention that he could defeat it because he had become a co-sharer before the decree by virtue of the gift to him. 6. The defendant has appealed and on his behalf it has been contended that by virtue of Section 20 of the Act of 1922 a subsequent gift to him after the filing of the suit but before the decree defeated the plaintiff's right and the suit should have been dismissed Reliance appears to have been placed on behalf of the defendant on Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as throwing doubt on the cursus curiae. It is, however, apparent from the passage that I have quoted that though I disliked, and I may add would not have been a willing party to the establishment of such a cursus curiae, I acknowledged that it already existed and agreed to follow it. It is quite a different matter that we have got to consider. The case before the Court in Haji Sultan v. Masitu AIR1926All749 was a case prior to the Act of 1922, and we had not got to consider in that, nor did I consider in that, the effect of the new Act of 1922 which was not applicable to the case then before us or the question whether that Act amended the law or codified it as already existing. 9. To turn now to the Act itself. The defendant relied, as I have said, on Section 20. He contended that there was nothing to show that Section 20 was intended to alter the law, and that it covered not only acquisitions prior to the suit but also acquisitions subsequent to the date of the suit. Section 20 reads, so far as is material for the present case: No suit for pre-emption shall lie where the purchaser... has acquired an indefeasible interest in the mahal which, if existing at the date of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was clearly expressed. If the law has not been altered then the plaintiff pre-emptor had no subsisting right at the date of the decree; his right had been defeated by the gift to the vendee prior to the decree. 15. How then can he be said to have lost his subsisting right by anything appearing from the Act. I suggested to the plaintiff-respondents' counsel, and he of course accepted the argument, that possible inference might be drawn from the wording of Section 20. That section makes it clear that the acquisition of an interest prior to the date of suit barred the plaintiff-pre-emptor's right. It might not unreasonably be argued that the failure to embody in that section the defeat of the plaintiff-pre-emptor's right by an acquisition subsequent to the date of suit, embodying the law as previously existing, suggests an inference that the legislature did not intend to embody that portion of the law previously existing that subsequent acquisition would defeat the plaintiff-pre-emptor's right, and by the omission intended to indicate that the rights of the parties should be governed by the general principle that judgment must be passed on their rights as ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, J., and I agree with him in the view expressed therein as to the right of the Court to consider in the case of this Act at any rate the marginal notes to the sections. King, J. 18. I agree with Boys, J., that the plaintiff's right to a decree for pre-emption has been defeated by the provisions of Section 19, Agra Pre-emption Act, 1922, and not by the provisions of Section 20. As the reasons which lead me to the same conclusion are not precisely identical with his, I think it desirable to state my views. 19. In this case the plaintiff had a right of pre-emption up to the date of the institution of the suit. After the institution of the suit, but before the passing of the decree, the purchaser (defendant 1) acquired in the mahal an indefeasible interest which gave him a right of pre-emption equal or superior to that of the plaintiff. The question is whether in these circumstances the plaintiff's right to a decree for pre-emption was defeated under Section 19 or Section 20 of the Act. 20. The object of the Act, as stated in the preamble, was to consolidate and amend the law relating to pre-emption. It is important, therefore, to bear in mind the previous law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk the section enacts the old rule that the plaintiff must have subsisting right of pre-emption at the date of the institution of the suit. The section mentions certain events which would bar the institution of the suit, and I take it as referring necessarily only to events that have taken place before the institution. I do not see how the institution of the suit can be said to be barred by an event that has not taken place before the institution. To my mind the language of the section clearly applies only to the acquisition of an interest before the institution of the suit. 24. If any doubt remains, it should be set at rest by a reference to the marginal note. The question whether a marginal note can be referred to for an exposition of the meaning of section depends upon whether the note has been inserted by, or under the authority of, the legislature. This principle is apparent from the reasons given in the leading case Claydon v. Green [1868] 3 C.P. 511 which lays down the old rule, observed by the Courts in England, that marginal dotes ought not to be relied on interpreting an Act of Parliament. At the time when that Act (the Alehouse Act, 1828 (9 Geo. IV C. 61) passed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rafting of a bill owing to a mistake in a marginal note. I merely mention this fact as showing that the members of this Council do not consider marginal notes to be outside the sphere of their criticizm. 27. When the bill is referred to a select committee of the Council, the committee invariably consider the marginal notes along with the clauses and make such amendments in the marginal notes as they think fit. The practice of the Council differs in this respect from the practice of the House of Commons. Finally, when the Bill is taken into consideration in the Council the marginal notes are not ordinarily read out and formally passed by the Council along with the clauses, but amendments to marginal notes, and the insertion of new marginal notes form the subject of formal motions and resolutions. I would lay stress upon this fact as showing that the marginal notes are considered, and are assented to expressly or tacitly, by the Council. The following extracts from the official report of the proceedings of the U.P. Legislative' Council will serve to prove that the practice during the period under consideration, was as I have stated. Two of the extracts relate to the Agra Pre-e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian Statute any greater authority than the marginal notes in an English Act of Parliament. 30. I take this to mean that no reason had been shown to their Lordships for ascribing to the marginal notes of Indian statute any greater authority than could be ascribed to the marginal notes of an act of Parliament, and therefore they were not prepared to ascribe any greater authority to the former. Very likely no such reason could have been given. The Indian statute under consideration in that case was the Oudh Estates Act which was passed by the Governor-General-in-Council in 1869. Their Lordships could not be expected to attach any authority to the marginal notes of that Act unless they were satisfied that the notes had been inserted with the assent of the legislature. Apparently no attempt was made to prove this proposition. It may be that the proposition was not even true. I find no trace in the arguments or judgment of any statement or explanation of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r acquiring such an interest after the institution of the suit, but this was the old rule, and I have no doubt but that Section 19 enacts the same rule. I express no opinion on its justice or expediency. I am in full agreement with the interpretation put upon Section 19 in the case of Qudrat-un-nissa v. Abdul Rashid AIR1926All661 which has been followed in the case of Ram Khelawan v. Banke Bihari AIR1927All517 and Deonarain Singh v. Ajudhia Prasad AIR1927All575 . I agree that the reference should be answered in the affirmative in respect of Section 19 and in the negative in respect of Section 20. Kendall, J. 34. I agree with my learned brothers in their interpretation of Sections 19 and 20 of the Act, and need add nothing to what they have said on the point. As regards the use of marginal notes I can support from my own experience as Legal Remembrancer and Judicial Secretary the remarks of King J. on the procedure in the reformed Legislative Council; and the conclusion at which I arrive is the same as his, namely that the marginal notes of the Agra Pre-emption Act, 1922 may properly be referred to by the Court in order to interpret the meaning of that statute. Order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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