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Mahesh Dat Pande Vs. Gokul Naik - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.115
AppellantMahesh Dat Pande
RespondentGokul Naik
Excerpt:
pre-emption - wajib-ul-arz--construction--partition, effect of--sharik, meaning of. - - after the date of wajib-ul-arz, the village was divided by perfect partition into three mahals. the plaintiff is a near relative but he is not a sharik and he ceased to be a partner with the vendor when the village was divided by perfect partition, and, therefore, the custom as it originally prevailed cannot be enforced so as to give him a right of pre-emption as against the co-sharers in mahal no......into three mahals. the property which is the subject of the sale is in mahal no. 1, the plaintiff is not a sharer in thai mahal. he is a sharer, however, in mahal no. 3, and the contention advanced by his learned advocate is that he is a sharik of the village, that is, a partner in the village area as it originally stood, and that, therefore, he must be regarded as a co-sharer with the vendor. we are unable to put this construction upon the terms sharik. sharik means a partner or co-sharer with the vendor. the plaintiff is a near relative but he is not a sharik and he ceased to be a partner with the vendor when the village was divided by perfect partition, and, therefore, the custom as it originally prevailed cannot be enforced so as to give him a right of pre-emption as against.....
Judgment:

1. This appeal arises out of a pre-emption suit. The plaintiff-appellant seeks to pre-empt a sale of a share in a village on the allegation that according to the custom of pre-emption prevailing in the village and recorded in the wajib-ul-arg of the years 1885-86, he has a preferential right to pre-empt. The custom as to the right of pre-emption contained in the wajib-ul-arz is to the effect that when a hissadar sells his share, he shall sell first to a sharik, who is a near relative (aziz karibi) and afterwards to a sharik who is aziz baid or distant relative, and then to hissadaran deh. After the date of wajib-ul-arz, the village was divided by perfect partition into three mahals. The property which is the subject of the sale is in mahal No. 1, The plaintiff is not a sharer in thai mahal. He is a sharer, however, in mahal No. 3, and the contention advanced by his learned Advocate is that he is a sharik of the village, that is, a partner in the village area as it originally stood, and that, therefore, he must be regarded as a co-sharer with the vendor. We are unable to put this construction upon the terms sharik. Sharik means a partner or co-sharer with the vendor. The plaintiff is a near relative but he is not a sharik and he ceased to be a partner with the vendor when the village was divided by perfect partition, and, therefore, the custom as it originally prevailed cannot be enforced so as to give him a right of pre-emption as against the co-sharers in mahal No. 1. The vendee is a co-sharer in mahal No. 1 in which the property is situate. We, therefore, think that the lower appellate Court rightly decided the appeal beforehim. We dismiss this appeal with costs including fees in this Court on the higher scale.


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