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Fakhran Bibi Vs. Nageshar Ram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.954
AppellantFakhran Bibi
RespondentNageshar Ram and anr.
Excerpt:
pre-emption - wajib-ul-arz--construction--rishtadar karibi--connection by marriage--rishtadar baid. - .....pattis and also owns a share in the common land of the village. the wajib-ul-arz gives a prior right of purchase to a near relation (rishtadar karibi) who owns a share in the some patti. the second right of purchase goes to a distant relative, who is also a co-sharer either in the patti or in the mahal. the third right of purchase belongs to a co-sharer in the mahal. the plaintiff's case was that she was a distant relative and a co-sharer in the same patti, and, therefore, had a preferential right of purchase over the defendant-vendee, who is a hindu and only a co sharer in the mahal. both the courts below have held that the plaintiff is not a 'rishtadar baid' within the meaning of the wajib-ul arz and, therefore, has not a preferential right of purchase over the defendant. they.....
Judgment:

Tudball, J.

1. This appeal arises out of a suit brought to enforce a right of preemption. The vendor is one Badi-ullah. The plaintiff is Musammat Fakhran Bibi, wife of Mir Siasat Ali. Badi-ullah's share and the plaintiff's share lie in the same patti. The defendant-vendee, Nageshar Ram, is a co-sharer in several other pattis and also owns a share in the common land of the village. The Wajib-ul-arz gives a prior right of purchase to a near relation (rishtadar karibi) who owns a share in the some patti. The second right of purchase goes to a distant relative, who is also a co-sharer either in the patti or in the mahal. The third right of purchase belongs to a co-sharer in the mahal. The plaintiff's case was that she was a distant relative and a co-sharer in the same patti, and, therefore, had a preferential right of purchase over the defendant-vendee, who is a Hindu and only a co sharer in the mahal. Both the Courts below have held that the plaintiff is not a 'rishtadar baid' within the meaning of the Wajib-ul arz and, therefore, has not a preferential right of purchase over the defendant. They based their decision to a certain extent on a ruling of this Court in Gopal Singh v. Gulam Husain A.W.N. (1894) 58. The words in the Wajib-ul-arz in that case were 'karabatdari baid.' It was therein held that the father of the wife of the vendor's brother or a person, whose mother's sister had married the son of the vendor, did not come within the category of 'karabatdari baid.' On appeal, it is urged that the word 'rishtadar' includes not only a relation by blood, bat also a relation by marriage, and attention is called to the decision in Pandit Rudha Prasad v. Musammat Munna L.P.A. No. 38 of 1910 in which case the question was considered whether the word 'rishtadar' included relations by marriage or not. As far as the ordinary meaning of the word 'rishtadar' is concerned, I have no doubt that it frequently does include a connection by marriage. The onJy difficulty is to draw the exact line and to say who is a distant relation within the meaning of the Wajib-ul-arz. The connection in the present case is as follows: Madar Bakhsh had two sons, Imam Ali and Subhan Ali. Subhan Ali married Alia Rakhi, daughter, of Amir Ali. The vendor is the son of Amir Ali and, therefore, the brother of Alia Rakhi. Subhan Ali's brother, Imam Ali, had a son Riasat Ali. The plaintiff is the wife of Rjiasat Ali. The question is, whether the plaintiff, between whom and the vendor there are two marriage connections, can be called a distant relative within the meaning of the word 'rishtadar baid' The question is by no means free from difficulty, and, in my opinion, considering that there are two marriages between the plaintiff and the vendor, it is difficult to say that she is a distant relation of the latter She is a connection by marriage of a connection by marriage and this, in my opinion, is too remote to give her a right within the meaning of the Wajib-ul-arz. In the circumstances of the case, I think, the lower Court's decision is correct. The appeal fails and is dismissed with costs.


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