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Lakhan Singh and anr. Vs. Bishan Nath - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.49
AppellantLakhan Singh and anr.
RespondentBishan Nath
Excerpt:
pre-emption - wajib-ul-arz--construction--'apna shafi', meaning of--blood relationship--preferential right. - - on behalf of the appellant it is urged that it is for the plaintiff to clearly establish the custom upon which he relies, that the wajib-ul-arz now before the court is ambiguous in its meaning and that it is impossible to say whether it gives preferential right to one who is nearer in blood or to one who is nearer in space, and that the plaintiff has, therefore, failed to establish any custom under which he has a preferential right, and that, therefore, the suit should be dismissed......held that as the vendor and the pre-emptor were co-sharers in the same patti, the plaintiff had a right preferential to that of the defendant to purchase this property. on behalf of the vendee, it was contended that the co-sharers in the village were divided into two classes, namely, those who were blood relations of the vendor, and those who were not. the court of first instance, however, held that the words apna shaft which occur in the wajib-ul-arz were equivalent to hissadar qaribi and that the plaintiff was entitled to pre-empt. the point was raised in the lower appellate court in grounds nos. 3 and 4 of the memorandum of appeal. but as there is no mention whatsoever of the point in the lower court's judgment, it appeals that it was not pressed to any extent in that court. the.....
Judgment:

1. This appeal arises out of a suit brought to enforce a right of preemption in respect to a share in patti Munna Lal, Mouzah Pingri Pingra, situated in Shahjahanpur district. The vendor and pre-emptor were both co-sharers in the same patti. The vendee is a co-sharer in another patti, Bahadar Singh of the same Mahal. The sole question before us is whether on a true construction of the Wazib-ul-arz, the plaintiff-respondent has or has not a preferential right over the defendant-appellant. The Court of first instance held that as the vendor and the pre-emptor were co-sharers in the same patti, the plaintiff had a right preferential to that of the defendant to purchase this property. On behalf of the vendee, it was contended that the co-sharers in the village were divided into two classes, namely, those who were blood relations of the vendor, and those who were not. The Court of first instance, however, held that the words apna shaft which occur in the Wajib-ul-arz were equivalent to hissadar qaribi and that the plaintiff was entitled to pre-empt. The point was raised in the lower appellate Court in grounds Nos. 3 and 4 of the memorandum of appeal. But as there is no mention whatsoever of the point in the lower Court's judgment, it appeals that it was not pressed to any extent in that Court. The Wajib-ul-arz runs as follows: If any co-sharer of a 'patti' in the khalisa wishes to sell his share, he will do so paying due respect to his Own pre-emptor (apna shafi), and if the latter refuse and all the other pre-emptors of the village (aur sab shafian deh) refuse, then he may sell to a stranger.' The only other evidence in respect to the right of pre-emption is the judgment in a suit which was decided in 1902 which is of no use to us in construing the Wajib-ul-arz as the point was not raised therein. On behalf of the appellant it is urged that it is for the plaintiff to clearly establish the custom upon which he relies, that the Wajib-ul-arz now before the Court is ambiguous in its meaning and that it is impossible to say whether it gives preferential right to one who is nearer in blood or to one who is nearer in space, and that the plaintiff has, therefore, failed to establish any custom under which he has a preferential right, and that, therefore, the suit should be dismissed. In so far as the original meaning of the word shaft is concerned, it is quite clear that it never contemplated the question of blood relationship. It means a conjunction, and under the Muhammadan Law there are three classes of pre-emptors, co-sharers in the subject-matter of sale, co-sharers in its appurtenances, and contiguous neighbours. If the original meaning be applied to the word shafi in the present case, it is clear that the interpretation placed by the Court of first instance upon this document is a correct one. It is true that there are instances in, these provinces of blood relations having a prior right of pre-emption under customs existing in certain villages. But these instances are comparatively rare as compared to those in which the prior right of pre-emption depends upon nearness of space. It seems to us that the interpretation placed by the Court below is justified. In addition to this, it seems to us that the wording of this Wajib-ul-arz, wherein it speaks of a co-sharer of a patti in the khalisa selling his right, indicated that his co-sharers in that same patti would be his pre-emptors (apna shafi). We see no reason to differ from the interpretation placed by the Court below. The appeal, therefore, fails and is dismissed with costs.


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