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Radhay Parshad Vs. Musammat Nannu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.669
AppellantRadhay Parshad
RespondentMusammat Nannu and anr.
Excerpt:
pre-emption - wajib-ul-arz--construction--'rishtadaran karibi,' meaning of--wife's half-sister, whether rishtadar karibi--hissadaran shikmi--co-sharer in the other half of khewat. - - the pleas raised in defence for the purposes of this appeal were that the plaintiff was not a rishtadar karibi of abdul rahim and that the defendant like the plaintiff was a shikmi hissadar in khewat no......was not a rishtadar karibi of abdul rahim and that the defendant like the plaintiff was a shikmi hissadar in khewat no. 25 and that the plaintiff had no preferential right to pre-empt the property. the court of first instance dismissed the claim on the ground that the plaintiff was not a near relation. the learned munsif relied on gopal singh v. ghulam husain a.w.n. (1894) 58 for the conclusion at which he arrived. that case lays down that the father of the wife of a person alleged to be the brother of the vendor or a person whose mother's sister is married to the son of the vendor did not come within the category of hissadar karibi. the plaintiff appealed to the lower appellate court on the ground that she was a rishtadar karibi. the lower appellate court came to the conclusion.....
Judgment:

Karamat Husain, J.

1. The facts of the case are these. In khewat No. 35 of the former settlement and No. 25 of the recent settlement one Rasul Baksh was the owner of one-half. He was succeeded by his two daughters, Musammat Nanhoo the plaintiff and Musammat Soghra, whose step-sister the plaintiff is described to be but it appears that they were half-sisters on the side of their father Rasul Baksh. Musammat Soghra died and was succeeded by her husband Abdul Rabim and her son Abdul Kabir. Abdul Rahim sold the property in dispute to Pandit Radhe Prasad. The plaintiff instituted the suit which grave rise to this appeal for pre-emption on the basis of the wajib-ul-arz on the ground that under the terms of the wajib-ul-arz she had a preferential right. The pleas raised in defence for the purposes of this appeal were that the plaintiff was not a rishtadar karibi of Abdul Rahim and that the defendant like the plaintiff was a shikmi hissadar in khewat No. 25 and that the plaintiff had no preferential right to pre-empt the property. The Court of first instance dismissed the claim on the ground that the plaintiff was not a near relation. The learned Munsif relied on Gopal Singh v. Ghulam Husain A.W.N. (1894) 58 for the conclusion at which he arrived. That case lays down that the father of the wife of a person alleged to be the brother of the vendor or a person whose mother's sister is married to the son of the vendor did not come within the category of hissadar karibi. The plaintiff appealed to the lower appellate Court on the ground that she was a rishtadar karibi. The lower appellate Court came to the conclusion that the plaintiff was a near relation and that if she was not such near relation she was a hissadar shikmi and that, therefore, she was entitled to pre-empt. On these findings it reversed the decree. The defendant Radhe Prasad has preferred a second appeal to this Court.

2. It is contended that the plaintiff is not a rishtadar karibi and that as she and the vendee are co-sharers in the same khewat, both are shikmis in that khewit. The learned Advocate for the appellant relied on Sarabsukh Lal v. Mujibullah A.W.N. (1882) 167. That case interpreted the expression 'hissadar karibi'. The second case relied on is Mahadeo Prasad v. Sahiba Bibi A.W.N. (1887) 216. In that case the expression 'hissadar karibi' was held to have no reference to consanguinity but to co-sharers in the same thok. The third case cited is Khuman Singh v. Hardai 11 A. 41. In that case the meaning to be put upon the word karibi in the wajib-ul-arz before the Court was considered. The fourth case cited is Bahal Singh v. Mubarakunnissa 5 A.L.J. 52 : A.W.N. (1908) 16 : 30 A. 77. In that case the expression rishtadar karibi was not considered. All these cases are discussed by Mr. Agarwala in his work on pre-emption, 2nd edition, p. 293. The learned Vakil for the respondent says that the expression rishtadar karibi has not so far been interpreted in any ruling of this Court and that the use of that expression in the Urdu language is not confined to consanguinity. A person who is related by marriage is also a 'rishtadar' and the term karibi only refers to the degree of relationship and not to its nature. He further says that on the findings arrived at by the Court below 'hissadar shikmi means such a hissadar as is a co-sharer in the same sub-division, be that sub-division patti or a thok and that, therefore, the plaintiff who is a co-sharer in that half of the khewat which belonged to Rasul Bakhsh is a shikmi' with the vendor while, the vetidee who is a co-sharer in the other half of that khewat is not a 'shikmi' with the vendor and that under these circumstances the plaintiff has a preferential right to pre-empt.

3. The terms of the pre-emption clause of the wajib-ul-arz which is the basis of the claim may be rendered as follows: If any owner of property intends to transfer his property he has first to sell it to such rishtadaran karibi as are co-sharers in the zamindari: 'If they decline to take it then to hissadaran shikmi and if they also decline then to hissadaran mahal'. It is conceded by the learned Advocate for the appellant that a right of pre-emption in favour of a member of a superior class arises, if the property is sold to a member of an inferior class but it is contended that the hissadaran shikmi have a right to pre-empt only against the hissadaran mahal and that they have no such right as against the hissadaran of the same khewat for all the co-sharers of khewat must be deemed to be the shikmi co-sharers. The plain meaning of the word 'rishta (lit. thread) in the Urdu language is 'relation' be that relation by blood or by marriage. The natural meaning of the term rishtadar, therefore, is a person who is related by blood or marriage and as there is nothing in the context of the wajib-ul-arz before me to limit the use of the term rishtadar to a blood relation I hold that the expression 'rishtadaran karibi' means near relation by blood or by marriage. The object of the right of pre-emption is to exclude strangers and it will be a violation to the ordinary meaning of that word to regard the plaintiff a stranger to the husband of her half sister especially when the property in dispute belonged to the sister and the husband inherited it from her. In Khuman Singh v. Hardai 11 A. 41 the word 'karibi' in the wajib-ul-arz before a Full Bench of this Court was held to be applicable to a vendor's father's brother's widow holding a share in the village absolutely as the heir of her deceased husband'. That being so, the expression 'rishtadarah karibi' in the wajib-ul-arz before me is undoubtedly applicable to the plaintiff. The view taken by the lower appellate Court that the plaintiff is a 'shikmi' and, therefore, has a preferential right over the vendee who is not a 'shikmi', is also, in my opinion, correct. The ruling in Abdul Shakur v. Mendal 23 A. 260 is an authority for the proposition that the plaintiff is a 'hissadar shikmi'. The fact that the vendee is a co-sharer in the other half of the khewat shows that he is not a shikmi but one of the 'hissadaran mahal'. With reference to the rulings relied on by the learned Advocate for the appellants it is sufficient to say that none of them deals with the interpretation of the expression 'rishtadaran karibi,' and that, therefore, they have no application to the case before me. The result is that the appeal fails and is dismissed with costs.


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