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Jaipal Rai Vs. Sahdeo Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All99; 55Ind.Cas.35
AppellantJaipal Rai
RespondentSahdeo Rai and ors.
Cases ReferredGurdial v. Mathura Singh
Excerpt:
custom - pre-emption-co-sharers, preferential rights of, rater se--wajib-ul-arz, entry in, construction of--tillage held on bighadam tenure. - - it seems to us that the custom clearly means that when a co-sharer wishes to sell he has to offer it first of all to his near co-sharer......states that when a co-sharer wishes to sell or mortgage, he offers his share first of all to his near co-sharer and in case of his refusal to any other co-sharer in the village and if they refuse then he may sell to a stranger. the record then goes on to say, 'if he sells it to a stranger in spite of the willingness of a co-sharer, the latter will be at liberty to enforce his right of pre-emption and to take the property at the market value.' both the courts below have held that on the face of a custom expressed in these words the right of preemption only arises in the case of a transfer to a stranger. they have based their opinion on certain old rulings of this court to be found in the case of narain saran singh v. sidh narain singh 5 a.l.j. 655 : a.w.n. (1908) 251 and in the case of.....
Judgment:

1. This appeal arises out of a suit for preemption. It has been dismissed by both the Courts below. The plaintiff, the vendor and the vendee are all co-sharers in the village. The plaintiff and the vendor are co sharers in the same khata. The vendee is a co-sharer in another khata. The village is one held on Bighadam tenure. The question is whether or not the co-sharers have preferential rights of preemption inter se. The wajibul are states that when a co-sharer wishes to sell or mortgage, he offers his share first of all to his near co-sharer and in case of his refusal to any other co-sharer in the village and if they refuse then he may sell to a stranger. The record then goes on to say, 'if he sells it to a stranger in spite of the willingness of a co-sharer, the latter will be at liberty to enforce his right of pre-emption and to take the property at the market value.' Both the Courts below have held that on the face of a custom expressed in these words the right of preemption only arises in the case of a transfer to a stranger. They have based their opinion on certain old rulings of this Court to be found in the case of Narain Saran Singh v. Sidh Narain Singh 5 A.L.J. 655 : A.W.N. (1908) 251 and in the case of Sheobalak Singh v. Lachmidar 23 A. 427; A.W.N. (1901) 120. There are other rulings to the contrary effect. It seems to us that the custom clearly means that when a co-sharer wishes to sell he has to offer it first of all to his near co-sharer. In other words a near co sharer has the first right to purchase the property as compared with the more distant co-sharer in the village. We do not think that the subsequent statement that in case of a sale to a stranger a willing co-sharer may preempt affects the statement of the rights of co-sharers inter se. The case is somewhat similar to the case of Gurdial v. Mathura Singh 6 Ind. Cas. 920 : 7 A.L.J. 610. We do not think that there is any doubt in the case that the plaintiff has a preferential right of purchase as compared with the respondents-vendees. There is an issue as to what is the true sale price. This issue was not decided by either of the Courts below. It is the third issue in the first Court. This must be decided before we can pass a final decree in this case. We, therefore, remand the issue to the Court below for decision at a very early date on the evidence which is already on the record before us. The usual ten days will be allowed on receipt of the finding.


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