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Amjad Ali and ors. Vs. Mushtaq Ahmad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All454
AppellantAmjad Ali and ors.
RespondentMushtaq Ahmad and anr.
Excerpt:
pre-emption - wajib-ul-arz--'stranger.' - .....is an appeal in a pre-emption suit. one muhammad sadrtiq, a co-sharer, sold a small property to mushtaq ahmad and muhammad israil. mushtaq ahmad is a co-sharer in the same thok with the vendor. muhammad israil is not a co-sharer, but is the nephew of mushtaq ahmad and the son of mushtaq ahmad's brother, who is a co-sharer. the plaintiffs-appellants have instituted this suit for the purpose of acquiring by pre-emption the property sold to the vendees. the allegation on which their plaint is founded is that muhammad israil is a 'stranger' and that mushtaq ahmad by joining him as a co-vendee has vitiated the sale. such undoubtedly would be the case if muhammad israil be a 'stranger.' now it is admitted that be is not a co-sharer; but it is contended that as a son of one co-sharer and the.....
Judgment:

Burkitt, J.

1. This is an appeal in a pre-emption suit. One Muhammad Sadrtiq, a co-sharer, sold a small property to Mushtaq Ahmad and Muhammad Israil. Mushtaq Ahmad is a co-sharer in the same thok with the vendor. Muhammad Israil is not a co-sharer, but is the nephew of Mushtaq Ahmad and the son of Mushtaq Ahmad's brother, who is a co-sharer. The plaintiffs-appellants have instituted this suit for the purpose of acquiring by pre-emption the property sold to the vendees. The allegation on which their plaint is founded is that Muhammad Israil is a 'stranger' and that Mushtaq Ahmad by joining him as a co-vendee has vitiated the sale. Such undoubtedly would be the case if Muhammad Israil be a 'stranger.' Now it is admitted that be is not a co-sharer; but it is contended that as a son of one co-sharer and the nephew of another co-sharer he cannot be considered to be a 'stranger.' In support of this plea the case of Bhurey Mal v. Nawal Singh I.L.R. 4 All. 259, was cited. With great respect for the learned Judges who decided that case I must say that I am unable to follow the reasons given for the decision at which the Court arrived. It was a case in which three plaintiffs jointly claimed preemption. The Court of first appeal held that two of those plaintiffs were not entitled, as they were not co-sharers in the thok. On second appeal to this Court it was held that the respondent, the first pre-emptor, by having joined with himself 'certain members of his family who were strangers quoad the estate' did not thereby defeat his pre-emptive right. It is not stated how the other two plaintiffs were related to the plaintiff Nawal, or how they were members of his family (they appear to have been distant cousins), and there is nothing to show that they were members of a joint undivided Hindu family to whom the ruling in Gandharp Singh v. Sahib Singh I.L.R. 7 All. 184, would apply. Unless they were such, in my opinion, the judgment in Bhurey Mal's case could be supported only on the fact, which does not appear to have been present to the mind of the Court, that the second and the third pre-emptors were near cousins of the deceased co-sharer Sahuria, whose property was in dispute. Under the terms of the wajib-w-arz near cousins had a pre-emptive right. I cannot consider this case from 4 Allahabad as any authority on the present question. Now in the present case the wajib-ul-arz gives successive pre-emptive rights, firstly, to 'own brothers,' secondly, to 'near cousins,' thirdly, to 'shareholders', and there are some other categories I need not notice. As the vendee, Muhammad Israil, is not a co-sharer and is not related to the vendor, he is not a person who, under any of the categories of the wajib-ul-arz cited above, could claim pre-emption. He, as a Muhammadan, is in a very different position from the son of a Hindu co-sharer, who by the Hindu law acquires on his birth an equal right with his father. The son of a Muhammadan acquires no such vested right, and, even if he survive his father, the latter may during his life have made such a disposal of the estate as to bar the succession of the son. A person in such a position cannot but be considered to be 'a stranger,' inasmuch as he does not come within any of the categories provided in the wajib-ul-arz. I am therefore of opinion that by joining Muhammad Israil, who, though his nephew, was not a co-sharer nor a relative of the vendor, Mushtaq Ahmad vitiated the bargain, and that the plaintiffs are entitled to pre-empt. I must therefore allow this appeal. I set a side the judgment and the decree of the Lower Appellate Court, and, as the suit was decided by the Court below on a preliminary point, and, as I have reversed its decision on that point, I remand the case to the Lower Appellate Court for decision on the merits. Costs to abide the result.


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