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Muhammad Yusuf Ali Khan Vs. Dal Kuar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All148
AppellantMuhammad Yusuf Ali Khan
RespondentDal Kuar
Excerpt:
pre-emption - wajib-ul-arz--transfer to plaintiff pre-emptor after sale--hindu widow in possession for widow's estate. - - there seems to be no doubt that the widow had power to make a good and legal relinquishment......it the right to pre-empt. i find it difficult to conceive upon what principle applicable to pre-emptive rights, based not on muhammadan law but upon the wajib-ul-arz, which must be taken to be the basis of the rights of the co-sharers, it would be possible to justify the exclusion of a co-sharer from pre-emption, to whom the widow's life estate has been relinquished, and who herself would have had plenary proprietary rights on the determination of the life estate. there seems to be no doubt that the widow had power to make a good and legal relinquishment. as i have already said, i cannot infer from the fact that the widow took no objection for some brief time before the relinquishment, that there was on her part an abandonment of pre-emptive rights. it would seem upon general.....
Judgment:

Blair and Aikman, JJ.

1. This is a pre-emption suit based upon the wajib-ul-arzes of two villages. The plaintiff is the daughter of one Puran Mal, and the title she alleges is that upon her father's death, the widowed mother, having become entitled to a life estate in the property, relinquished all her rights to the plaintiff, who thereupon entered into possession and was duly recorded as a co-sharer.

2. The sale which constituted the cause of action took place on the 22nd of January 1694. Puran Mal died on the 6th of December 1893. The appellant represented by Mr. Mujtaba, disputes the right of the plaintiff to pre-empt upon the ground that the voluntary relinquishment of the mother to the daughter, after the completion of the sale, could not confer upon her any right of preemption. In support of that contention Mr. Ghulam Mujtaha cited to us a, Full Bench case, Sheo Narain v. Hira I.L.R. 7 All, 536. That case is not on all fours with the case we have to decide. It was a sale to a person other than a co-sharer, and the plaintiff who claimed to pre-empt was himself a stranger who had purchased a share in the village. The inconveniences which formed the basis of that decision are set forth in detail in the judgment, and no doubt formed a very substantial part of the ratio decidendi. Differing from the present case in that very material respect, that case affords no guidance to us in a case where the person claiming to pre-empt is not a stranger who has acquired a share in the village. There is another argument used in the judgment of Mr. Justice Mahmood to support the decision, the propriety of which 1 do not question, which appears to me to be based upon a misconception. It occurs in the following words:--' Now, if at the time of the sale-the person who at that time owned the share purchased by the plaintiff had no objection to the sale, that sale gave rise to no cause of action, and nothing: which happened afterwards could create one.' That observation leaves out of sight that there was ample time still for the original owner of the property, had he lived, to take objection; the period for such objection had not expired, and it seems to mo impossible to say that the abstinence from objection for some portion, and a portion only, of that time raised any inference of the abandonment of a claim to pre-empt. It is settled law that a widow holding a life estate, and not holding possession of land in lieu of maintenance, represents the estate in the fullest manner, and such plenary possession seems to me to carry with it the right to pre-empt. I find it difficult to conceive upon what principle applicable to pre-emptive rights, based not on Muhammadan Law but upon the wajib-ul-arz, which must be taken to be the basis of the rights of the co-sharers, it would be possible to justify the exclusion of a co-sharer from pre-emption, to whom the widow's life estate has been relinquished, and who herself would have had plenary proprietary rights on the determination of the life estate. There seems to be no doubt that the widow had power to make a good and legal relinquishment. As I have already said, I cannot infer from the fact that the widow took no objection for some brief time before the relinquishment, that there was on her part an abandonment of pre-emptive rights. It would seem upon general principles that the period within which the pre-emptive rights can be exercised is not limited by a devolution of the estate from one co-sharer to another co-sharer. In the case of a wajib-ul-arz I think the expression excluding such a right must be clear and imperative before I could find that so important an incident of proprietary possession could be lost by such devolution. It is to be regretted that the respondent was not represented in the argument upon this appeal, but I feel no doubt that Mr. Mujtaba has brought to bear upon the matter all cases which might help to guide the decision of the Bench. On the whole I am of opinion that the Courts below were right in their decision. I would dismiss the appeal.

3. The appeal is dismissed, but without costs, as no one appeared for the respondent.


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