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Serh Mal and ors. Vs. Hukam Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All100
AppellantSerh Mal and ors.
RespondentHukam Singh
Excerpt:
pre-emption - wajib-ul-arz--sale to a stranger--he-sale before suit to a co-sharer--effect of such re-sale. - - the custom of the muhammadan law in such a case has never been applied in these provinces in cases of pre-emption arising under a wajib-ul-arz like that in this case......of pre-emption amongst the shareholders. sold certain bighas of land to a stranger. out of that sale this suit has arisen. the plaintiffs claim pre-emption as co-sharers having a right of pre-emption. one of the defendants, namely, hukam singh, is a co-sharer having an equal right of pre-emption with the plaintiffs. he claims under a sale-deed which has been found by the district judge in appeal to be genuine. that sale-deed bears a date prior to the date of the institution of this suit. it was a sale-deed by which the stranger vendee sold to hukam singh the land which he had previously purchased from the other co-sharers. the first court decreed the claim of pre-emption. the court of first appeal, on appeal, dismissed the suit. from the decree of the court of first appeal this appeal.....
Judgment:

John Edge, C.J. and Banerji, J.

1. Shareholders in a, village in which there was under the wajib-ul-arz a right of pre-emption amongst the shareholders. sold certain bighas of land to a stranger. Out of that sale this suit has arisen. The plaintiffs claim pre-emption as co-sharers having a right of pre-emption. One of the defendants, namely, Hukam Singh, is a co-sharer having an equal right of pre-emption with the plaintiffs. He claims under a sale-deed which has been found by the District Judge in appeal to be genuine. That sale-deed bears a date prior to the date of the institution of this suit. It was a sale-deed by which the stranger vendee sold to Hukam Singh the land which he had previously purchased from the other co-sharers. The first Court decreed the claim of pre-emption. The Court of First Appeal, on appeal, dismissed the suit. From the decree of the Court of First Appeal this appeal has been brought.

2. It has been contended here on behalf of the plaintiffs appellants that, at the moment when the sale to the stranger was made, the plaintiffs obtained their cause of action. That no doubt is true. It has been contended further that the plaintiffs, having obtained a cause of action before the sale to Hukam Singh, are entitled to a decree of pre-emption in this suit which will deprive Hukam Singh of the benefit of his purchase. For that proposition there is authority. A Judge of this Court sitting alone decided, in Second Appeal No. 649 of 1895, that in such a case the subsequent re-sale by the stranger vendee could not bar the right of a shareholder to obtain a decree for preemption against the purchaser share-holder from the stranger. With that proposition we cannot agree. In a coparcenary village, in which, whether by-custom or agreement, there is a pre-emption for the share-holders on a sale to-a stranger, each shareholder of equal right has, at the moment such a sale is effected, an equal right to pre-empt the whole property sold. The custom of the Muhammadan Law in such a case has never been applied in these Provinces in cases of pre-emption arising under a wajib-ul-arz like that in this case. We refer to the rule by which all persons entitled to pre-empt are entitled to a share in the pre-empted property. In our opinion, until a suit has been brought by a co-sharer for pre-emption of the property sold to a stranger, another co-sharer can purchase from the stranger the share which had been sold to the stranger. The stranger on his purchasing a share from a co-sharer obtains a vested interest in the share, and his interest acquired by such purchase can only be divested by voluntary sale by him or by a decree in a suit. Now in this case, as we have said, Hukum Singh had equal rights of pre-emption with che plaintiffs. He purchased the share from the stranger before the plaintiffs filed their suit, and in our opinion he is entitled to hold it.

3. We dismiss this appeal with costs.


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