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Harjas Vs. Kanhya - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All118
AppellantHarjas
RespondentKanhya
Excerpt:
.....the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 2. hence, if a co-sharer associates a stranger with him in the purchase of a share, another co-sharer is entitled to pre-empt the whole of the property sold, but it is not obligatory upon him to impeach the sale so far as the co-sharer-vendee is concerned, for it may well be that he has no desire to exclude such co-sharer......1883, was brought to establish his right of pre-emption as against kanhya, in respect of the one-fifth share purchased by him, and to obtain possession thereof upon payment of what might be deemed to be the proportionate price of such fifth. both the lower courts dismissed the claim, following, as they considered, a ruling of this court, in manna singh v. ramadliin singh i.l.r. 4 all. 252. the plaintiff has preferred the special appeal before us, and the grounds taken by him substantially are--first, that the case relied on by the lower courts is inapposite; and next, that it was competent for him to maintain his suit in the present form. there seems to be no doubt that the plaintiff is a co-sharer; that he has a right of pre-emption over the whole of the property passed by the.....
Judgment:

Straight, Offg. C.J.

1. On the 22nd June 1882, Musammat Sujano sold a moiety of her zamindari share in a village, consisting of 17 bighas, 15 biswas, 10 biswansis of land, with all the rights pertaining thereto, to five persons, namely, Umrao, Bam Prasad, Sarjit, Kanhya, and Dalpet, in equal shares, for a consideration, so the sale-deed recites, of Rs. 1,300. The vendees Nos. 1, 2, 3, and 5 are co-sharers, but No. 4 is admittedly a stranger. The plaintiff-appellant's suit, which was instituted on the 15th June 1883, was brought to establish his right of pre-emption as against Kanhya, in respect of the one-fifth share purchased by him, and to obtain possession thereof upon payment of what might be deemed to be the proportionate price of such fifth. Both the lower Courts dismissed the claim, following, as they considered, a ruling of this Court, in Manna Singh v. Ramadliin Singh I.L.R. 4 All. 252. The plaintiff has preferred the special appeal before us, and the grounds taken by him substantially are--first, that the case relied on by the lower Courts is inapposite; and next, that it was competent for him to maintain his suit in the present form. There seems to be no doubt that the plaintiff is a co-sharer; that he has a right of pre-emption over the whole of the property passed by the sale-deed of the 22nd June 1882, and consequently over the whole of the one-fifth of which Kanhya was the purchaser. In his plaint he has asked for the declaration of his pre-emptive right as to the whole of such one-fifth, and the only question is, whether he can do so. The lower Courts proceeded on the view that he is not entitled to impeach the sale of the 22nd June 1882, except in its entirety, and they appear to have thought that the converse of the rule laid down by this Court in the case already adverted to was necessarily binding on them. This was an error, probably due to misapprehension of the principle upon which a co-sharer who has associated a stranger with him in the purchase of a share, is not allowed to assert his own pre-emptive right to defeat a suit by another co-sharer who impeaches the sale as a whole. The grounds upon which this rule rests are pointed out by Mahmood, J., in Bhawani Prasad v. Damrua I.L.R. 5 All. 197. In the present case, the plaintiff-appellant might have attacked the entire sale in respect of all the five vendees, and have treated the four co-sharers as strangers, but there was no obligation on him to do so, for the right of pre-emption which gives a co-sharer the first call, so as to enable him to exclude a stranger from the co-parcenary, does not compel him to exercise his right, and he may relinquish it if he thinks proper. If, however, he does exercise it, then the obligation rests upon him to do so as to all that the stranger has purchased.

2. Hence, if a co-sharer associates a stranger with him in the purchase of a share, another co-sharer is entitled to pre-empt the whole of the property sold, but it is not obligatory upon him to impeach the sale so far as the co-sharer-vendee is concerned, for it may well be that he has no desire to exclude such co-sharer. We think that the plaintiff-appellant was entitled to prefer his present claim in respect of the one-fifth purchased by Kanhya, upon payment of his proportion of the purchase-money. In this view of the case, we decree the appeal, and, reversing the decision of the Lower Appellate Court, remand the case for trial on its merits.


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