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Tafazul HusaIn Vs. Than Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.426
AppellantTafazul Husain
RespondentThan Singh and anr.
Excerpt:
muhammadan law - pre-emption--partner--partition during the pendency of the suit for pre-emption, effect of--partner at the date of institution but not so at the date of decree--no right of pre-emption. - .....plaintiff pre-emptor was a co-sharer in the same mahal as a vendor. after the institution of the suit, partition proceedings commenced. indeed they were originally commenced by an application of the plaintiff himself. it is said that he withdrew from this application and possibly this is correct. however, partition proceedings were had with the result that there was a final decree, which took effect on the 1st of july 1907. the decree of the court dismissing the plaintiff's suit for pre-emption is dated the 9th of july 1907. the suit was dismissed upon the ground that the plaintiff pre-emptor, as the result of the partition, was no longer a co-sharer in the mahal in which the property, the subject-matter of the suit, is situate. the plaintiff appealed and the lower-appellate court.....
Judgment:

1. This appeal a-rises out of a suit for pre-emption. The property sought to be pre-empted is zamindari and the vendor and pre-emptor are Muhammadans. It is admitted that the right of preemption, if any, is based on Muhammadan law. The facts are quite clear. At the time of the sale, the plaintiff pre-emptor was a co-sharer in the same mahal as a vendor. After the institution of the suit, partition proceedings commenced. Indeed they were originally commenced by an application of the plaintiff himself. It is said that he withdrew from this application and possibly this is correct. However, partition proceedings were had with the result that there was a final decree, which took effect on the 1st of July 1907. The decree of the Court dismissing the plaintiff's suit for pre-emption is dated the 9th of July 1907. The suit was dismissed upon the ground that the plaintiff pre-emptor, as the result of the partition, was no longer a co-sharer in the mahal in which the property, the subject-matter of the suit, is situate. The plaintiff appealed and the lower-appellate Court dismissed the appeal. The plaintiff comes here in second appeal. We think that the decisions of the Courts, below were correct. The plaintiff's right was based upon the fact that he was partner with the vendor. To quote Hamilton's translation of the Hidaya, ''Shafa relates to a thing held in joint property and which has not been divided off'. The right of Shafa is founded on a precept of the Prophet, who has said, 'the right of Shafa holds in partner who is not divided off and taken separately bis share'. Having regard to what has happened, the plaintiffs property has been divided off. lie is no longer a partner with the vendor. It is argued that inasmuch as the plaintiff was a partner at the time of the institution of the suit, that, therefore, it does not matter that a partition has since taken place, particularly if the plaintiff was not the person who sought partition. Evidently the plaintiff did feel that if he had prosecuted the partition it would be fatal to his suit and this perhaps explains why he withdrew from the application for partition which he himself made in the first instance. It is expressly laid down in the hidaya, Chapter IV, Book 38, that it is a condition that the property of the Shafi remain firm until the decree of the Kazi be passed; and for this reason if the Shafi, previous to the decree of the Kazi, sell the house from which he derives his right of Shafa, the reasons or grounds of his right being thereby extinguished, the right itself is invalidated. Applying the same principle to the present case, the plaintiff's right of Shafa was founded upon the fact that he was a partner, that is to say, a co-sharer in the mahal. He has ceased to be such co-sharer. Therefore, the reasons or grounds of his right had been extinguished before the decree of the Court, and, therefore, the right itself is also extinguished. We dismiss the appeal with costs including in this Court fees on the higher scale.


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