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Mohan Singh and ors. Vs. Bhupal Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All324
AppellantMohan Singh and ors.
RespondentBhupal Singh
Excerpt:
.....her deceased husband but not as his heir--stranger--effect of joining a stranger as plaintiff in a suit for pre-emption. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are.....banerji and aikman, jj.1. this was a suit for pre-emption, on the basis of the wajib-ul-arz. the property in suit belonged to shibraj singh and bahadur singh, and was sold by them on the 18th of august 1893, to kunwar misr harcharan, a stranger to the village. the latter sold the property on the 22nd of july 1894, to bhupal, the appellant, who is a co-sharer of the original vendors. the plaintiffs brought the present suit to enforce their right of preemption in respect of the sale to kunwar misr harcharan, and subsequently added bhupal as a defendant to the suit. one of the grounds on which bhupal contested the claim was that the female plaintiffs were not co-sharers in the village, and had not the right to pre-empt, and that the other plaintiffs by associating them with themselves in the.....
Judgment:

Banerji and Aikman, JJ.

1. This was a suit for pre-emption, on the basis of the wajib-ul-arz. The property in suit belonged to Shibraj Singh and Bahadur Singh, and was sold by them on the 18th of August 1893, to Kunwar Misr Harcharan, a stranger to the village. The latter sold the property on the 22nd of July 1894, to Bhupal, the appellant, who is a co-sharer of the original vendors. The plaintiffs brought the present suit to enforce their right of preemption in respect of the sale to Kunwar Misr Harcharan, and subsequently added Bhupal as a defendant to the suit. One of the grounds on which Bhupal contested the claim was that the female plaintiffs were not co-sharers in the village, and had not the right to pre-empt, and that the other plaintiffs by associating them with themselves in the suit had forfeited their own right of pre-emption. The Court below has granted to the plaintiffs a decree for a portion of the property after excluding the portion which in its opinion Bhupal was entitled to pre-empt. Bhupal has preferred this appeal, and he reiterates the plea raised in the Court below as to the right of the plaintiffs to maintain the suit. We have two questions to decide in this appeal, first, whether the two female plaintiffs are co-sharers or strangers; and secondly, if they are strangers, what is the effect on the claim of the other plaintiffs of their being associated in the suit with those plaintiffs.

2. As regards the first point, it appears that the sons of both the ladies are alive, and therefore the ladies have no right as heirs to their husbands to share in their husbands' property. It is not alleged that they had acquired a share in the property by any right other than a right derived from their husbands, who were the original owners of the property, on the strength of which they claim to be co-sharers. It is true that in the revenue records their names have been entered along with those of their sons as co-sharers in the village, but that circumstance alone would not make them co-sharers and confer on them the right of pre-emption as co-sharers, since as a matter of fact they have no right to the property as co-sharers. The Subordinate Judge has held that the ladies have a right of pre-emption, because they have a right to maintenance and also because on a partition they would get a share in their husband's estate. This view is opposed to the ruling of this Court in Phopi Ram v. Rukmin Kuar Weekly Notes 1895, p. 84 [Vide Infra, p. 327], and Imam-ud-din v. Surjaiti Weekly Notes 1895, p. 85 [Vide Infra, p. 329]. Had these rulings been before the Subordinate Judge he would probably have arrived at a different conclusion.

3. We must therefore hold that the two plaintiff's, Musammat Indar Kunwar and Musammat Gaura, were not entitled to claim pre-emption in respect of the property in suit.

4. As for the second question, it has been held that a co-sharer by associating with himself a stranger in a suit brought for pre-emption thereby forfeits his right of pre-emption. By the very act of joining a stranger in the suit he attempts to violate the pre-emptive right and estops himself from asserting it. This was held in Bhawani Prasad v. Damru I.L.R. 5 All. 197, and in the recent case of Ram Nath v. Badri Narain I.L.R. 19 All. 148, decided by a Bench of three Judges. It was contended before us that the female plaintiffs were not such strangers as would entail the dismissal of the suit of the-other plaintiffs, and that the defect in the suit, if any, might be remedied by an amendment of the plaint and by striking out the names of the female plaintiffs. We cannot accept either of these contentions. As held in Fida Ali V. Muzaffar Ali I.L.R. 5 All. 65, the word 'stranger' is a correlative to 'pre-emptor,' and is used to denote a person who has not the right of pre-emption. If these ladies, who had not the right of pre-emption by reason of their not being co-sharers in the village, were granted a decree in this case, the result would be that a share of the village would pass into the hands of the personal heirs of these ladies, who might be entire strangers to the village. As to the argument that the defect in the plaint could be remedied by an amendment, we may observe, as held in the cases above referred to, that the very fact of a person having the right of pre-emption joining with himself strangers, i.e., persons who have not a right of pre-emption, is in itself sufficient to estop him from asserting his claim. An amendment of the plaint therefore would not be of any avail to the other plaintiffs. For the above reasons we are of opinion that the suit ought to have been dismissed. We allow the appeal, and, setting aside the decree below, dismiss the suit with costs here and in the Court below. The objections under Section 561 necessarily fail and are dismissed with costs.


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