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Shamsher Singh and ors. Vs. Pearey Dut and Subedar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in46Ind.Cas.761
AppellantShamsher Singh and ors.
RespondentPearey Dut and Subedar and ors.
Excerpt:
custom - pre-emption--refusal to purchase by co-sharer--vendor, duty of--stranger, purchase by, validity of. - .....agreement to purchase at a fixed price has been entered into with a stranger. it is not enough to offer property to a person entitled to pre empt before an agreement to purchase has been entered into with a third party, as was the case here.' this bench has had occasion to deal with this dictum, in several cases [see naunihal singh v. ram ratan 37 ind. cas. 511 : 14 a.l.j.1138 : 39 a. 127 and nathi lal v. dhani ram 39 ind. cas. 637 : 15 a.l.j.315]. as a general rule the custom, as evidenced by the record in the wajib-ul-urz, is that where a co-sharer wishes to sell, he must first offer it to his co-sharer and if the co-sharer refuses to purchase, he is entitled to go to a stranger. where the custom proved is of this nature, we have no hesitation in saying that if the co-sharer offers.....
Judgment:

1. This appeal arises out of a suit for pre-emption and was before us on a previous occasion. We held that the plaintiff, under the circumstances of the cafe, was entitled to get the property by pre-emption provided that he had not refused to purchase it. The Court below has decided that the plaintiff did not refuse to purchase. The Court disbelieves the evidence adduced by the vendees upon this point and it is to be remembered that although the plea was raised when the case came on originally for trial, it was not until after the order for remand that evidence of refusal to purchase was given. We see no reason to differ from the Court below upon the issue of the refusal to purchase. The learned Subordinate Judge in the course of his judgment held that even if the plaintiff had refused to purchase that would not be sufficient to debar him from his right of pre-emption, and has cited two cases, namely, Munawar Husain v. Khadim Ali 6 A.L.J. 331; A.W.N. (1908) 93 and Kanhai Lal v. Kalka Prasad 27 A 670; A.W.N. (1905) 149 : 2 A.L.J. 390. In the last mentioned case there is the following passage in the judgment: As we pointed out in our judgment in the case of Sohan Lal v. Shahab-ud-din Khan 8. A. No. 09 of 1901 unreported, in order to debar a party entitled to preempt a sale from exercising his right an opportunity to purchase must be given when a definite agreement to purchase at a fixed price has been entered into with a stranger. It is not enough to offer property to a person entitled to pre empt before an agreement to purchase has been entered into with a third party, as was the case here.' This Bench has had occasion to deal with this dictum, in several cases [see Naunihal Singh v. Ram Ratan 37 Ind. Cas. 511 : 14 A.L.J.1138 : 39 A. 127 and Nathi Lal v. Dhani Ram 39 Ind. Cas. 637 : 15 A.L.J.315]. As a general rule the custom, as evidenced by the record in the wajib-ul-urz, is that where a co-sharer wishes to sell, he must first offer it to his co-sharer and if the co-sharer refuses to purchase, he is entitled to go to a stranger. Where the custom proved is of this nature, we have no hesitation in saying that if the co-sharer offers the property to another co-sharer and he refuses to purchase upon the ground that he has no money or is un-willing for any other reason to purchase, the owner of the property is quite entitled to go and sell it to a stranger and that he is not obliged after he has made a definite agreement with the stranger to return and offer the property to the co-sharer a second time. It seems to us that (where the custom is as stated) the going to a stranger and making a bargain with him before offering it to the co-sharer would be acting contrary to the custom. We dismiss the appeal with costs, including in this Court fees on the higher scale.


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