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Baldeo Pershad and anr. Vs. Bhagwant Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.768
AppellantBaldeo Pershad and anr.
RespondentBhagwant Singh and anr.
Excerpt:
.....recognised meaning in the urdu..........karabat karib hakkiat men means such sharers in another patti as are nearer in space to the property sold. the certified copy of the pre emption clause was not very clear and, therefore, i sent for the original wajib-ul-arz, the pre emption clause of which is 'aindah ham sab shurka ko hasab ravaj wa shada amad kadeem apne hisse ke bai wa, rahn karne ka ikhtiar hasil hai. lihaza jo koi sharik hissa, apna bazarye bai ya rahn ya thika ya istighrak intekal karna chahe, to awal shurkai zail patti mustahak lene intekal milkiat ke honge, jo woh na len, to digar shurkai patti majaz lene intikal ke honge aur bahalat inkar hissadaran patti mazkur, aur hissadaran dusre patti ke, jo karabat karib hakiat men rakhte hon, mustahak lene intekal ke honge. agar woh bhi inkar karen ya kimat bamojib.....
Judgment:

1. This was a suit for preemption on the basis of a wajib-ul-arz. It was dismissed by the Court of first instance and its decree was affirmed by the lower appellate Court. The preemptors come here in second appeal, and it is argued by their learned Vakil that the expression karabat karib hakkiat men means such sharers in another patti as are nearer in space to the property sold. The certified copy of the pre emption clause was not very clear and, therefore, I sent for the original wajib-ul-arz, the pre emption clause of which is 'Aindah ham sab shurka ko hasab ravaj wa shada amad kadeem apne hisse ke bai wa, rahn karne ka ikhtiar hasil hai. Lihaza jo koi sharik hissa, apna bazarye bai ya rahn ya thika ya istighrak intekal karna chahe, to awal shurkai zail patti mustahak lene intekal milkiat ke honge, jo woh na len, to digar shurkai patti majaz lene intikal ke honge aur bahalat inkar hissadaran patti mazkur, aur hissadaran dusre patti ke, jo karabat karib hakiat men rakhte hon, mustahak lene intekal ke honge. Agar woh bhi inkar karen ya kimat bamojib ikbal shakhs gair ke ada na karen, to usko ikhtiar intikal karne hath shakhs gair ke hoga'.

2. This passage may be rendered as follows :--In future all of us co-sharers, according to ancient practice and custom, have power to sell, hypothecate, lease or mortgage our shares. Therefore, if any co-sharer wishes to sell, hypothecate, lease or mortgage his share, then first of all zaili co-sharers in the patti will be entitled to take the transfer! if they fail to do so, other co-sharers in the patti will be entitled to take the transfer and in case of refusal by the co-sharers of the patti a fore said, such other co-sharers of another patti as are near relatives (to the holder) of the property sold will be entitled to take the transfer. If they also refuse to take or do not pay the price which a stranger is willing to pay, the owner will have power to transfer it to a stranger.' The above passage clearly shows that pre-emptors are divided into three classes (1) zail or joint co-sharers in the patti, (2) other co-sharers in the same patti and (3) Co-sharers in another patti who are blood relations of the owner of the hakkeat sold. The contention of the learned Vakil that the third class denotes only co-sharers in another patti as are nearer in space to the property sold is not correct. To take the expression karabat karib in any sense other than a near blood relation is not correct according to its well recognised meaning in the Urdu language. Besides, the words which follow that expression show that the expression has been used in contradiction 'to a stranger' and this to my mind conclusively shows that the expression means near blood relations.' In the third place, when the third class of pre-emptors consists of other hissadars in another patti, that.patti is not sub-divided and such, being the case, the contention that some of those hissadars may be nearer in space to the property sold than other hissadars is meaningless.

3. The result is that the pre-emptors who are not blood relations of the vendor have no preferential right to the vendee, The appeal fails and is dismissed with costs.


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