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Mathura Singh Vs. Ram Lal Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.486
AppellantMathura Singh
RespondentRam Lal Singh and ors.
Excerpt:
pre-emption - custom--wajib-ul-arz--construction--co-sharers' rights inter so. - - the court of first instance decreed the suit and on appeal the learned district judge dismissed the suit, holding that the plaintiff has entirely failed to prove the custom under which he is entitled to a right of pre emption as against the defendant vandee. we think that the correct interpretation of this wajib-ul-arzis to hold that the right of pre-emption arises only when there is a sale to a stranger and that no such right is conclusively established when the property is sold to a co-sharer, that is to say, the plaintiff has entirely failed to prove by this evidence that there is any right inter se between the co-sharers when a sale takes place to them......claim is an entry in the wajib-ul-arz, which says that in case of a transfer of property the right to claim pre-emption would be as follows :--'first to warisan ek jaddi qaribi, then to hissadars of the patti and then to so sharers in the village.' accepting, as the lower appellate court has done, that this wajib-ul-arz records a custom of pre-emption, we are of opinion that the view taken by it that this is insufficient to prove the particular custom alleged by the plaintiff, is correct. on the face of this wajib-ul-arz it is not at all clear that the clause applies to the case of a sale to a co-sharer. on the other hand, priority is given to the three classes of pre-emptors to claim pre-emption when the sale takes place. we think that the correct interpretation of this.....
Judgment:

1. This is a plaintiff's appeal arising out of a suit for pre-emption. The defendant vendee is also a co-sharer in the same village, but he does not own any share in the palti in which the share sold is situated. The Court of first instance decreed the suit and on appeal the learned District Judge dismissed the suit, holding that the plaintiff has entirely failed to prove the custom under which he is entitled to a right of pre emption as against the defendant vandee. The only evidence in support of the plaintiff's claim is an entry in the wajib-ul-arz, which says that in case of a transfer of property the right to claim pre-emption would be as follows :--'First to warisan ek jaddi qaribi, then to hissadars of the patti and then to so sharers in the village.' Accepting, as the lower Appellate Court has done, that this wajib-ul-arz records a custom of pre-emption, we are of opinion that the view taken by it that this is insufficient to prove the particular custom alleged by the plaintiff, is correct. On the face of this wajib-ul-arz it is not at all clear that the clause applies to the case of a sale to a co-sharer. On the other hand, priority is given to the three classes of pre-emptors to claim pre-emption when the sale takes place. We think that the correct interpretation of this wajib-ul-arzis to hold that the right of pre-emption arises only when there is a sale to a stranger and that no such right is conclusively established when the property is sold to a co-sharer, that is to say, the plaintiff has entirely failed to prove by this evidence that there is any right inter se between the co-sharers when a sale takes place to them. In this view of the case the appeal fails and is dismissed with costs.


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