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Rahima Vs. Razzak Ali and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All256; 71Ind.Cas.562
AppellantRahima
RespondentRazzak Ali and anr.
Cases ReferredGupteshwar Ram v. Rate Krishna Ram
Excerpt:
preemption suit - pre-emptor joining as co-plaintiff pre-emptor inferior to vendee--effect. - - 1 and 2 were not related to the vendor at all and, the having joined in the claim of rahima 4 who was related to the vendor, the claim must fail. on a suit by the pre-emptor the vendee pleaded that he and the pre->emptor bad equal right to purchase the property as they stood, according to the order given in the wajib-ul-arz, in equal degree with regard to preemption. if it were otherwise, pre-emption as between co-sharers could always be defeated if one co-sharer having an equal right could be induced to join in the purchase......had joined with him a co-sharer in the purchase of the property sought to be preempted, but a co-sharer inferior in degree to the pre-emptor. on a suit by the pre-emptor the vendee pleaded that he and the pre->emptor bad equal right to purchase the property as they stood, according to the order given in the wajib-ul-arz, in equal degree with regard to preemption. the pre-emptor replied that as the vendee had joined with him in the purchase of the property a co-sharer who had an inferior right to that of the pre emptor, therefore, the pre-emptor could enforce his claim against the vendee. the contention of the pre-emptor was allowed and his claim i was decreed. in disposing of the appeal; two learned judges of this court who heard it remarked as follows:we also think that if we assume.....
Judgment:

1. This appeal arises out of a suit brought by three persons, namely, Mansur Ali, Sahab Ali and Rahima on the ground of pre-emption. It was alleged in the plaint that both the plaintiffs and the defendants vendor and the vendees were co-sharers, in the village but the plaintiffs had a preferential right because they were more nearly related to the vendor. The claim was resisted on various grounds, one of which was that the plaintiffs Nos. 1 and 2 were not related to the vendor at all and, the having joined in the claim of Rahima 4 who was related to the vendor, the claim must fail. Both the lower Courts dismissed the claim of the plaintiffs on the ground that Rahima, though having a preferential right, had associated with himself two persons whose rights were inferior to those of the vendees. Rahima alone has come up in second appeal before us and, accepting the finding against him as to the relationship of plaintiffs Nos. 1 and 2 to the vendor, contends that as he had not associated with himself strangers but co-sharers, a decree for pre-emption should be passed in his favour alone. On behalf of the vendees the contention is that the claim of Rahima together with his co-plaintiffs was rightly dismissed by the Courts below, inasmuch as Rahima had joined with him persons who were inferior in degree, according to the order of preemption given in the wajib-ul-arz, to the vendees.

2. We think that the position taken up by the appellant Rahima is untenable. The case of Gupteshwar Ram v. Rate Krishna Ram 15 Ind. Cas. 174 : 34 A. 542 : 10 A.L.J. A.L.J. 70 is in point. In that case the vendee had joined with him a co-sharer in the purchase of the property sought to be preempted, but a co-sharer inferior in degree to the pre-emptor. On a suit by the pre-emptor the vendee pleaded that he and the pre->emptor bad equal right to purchase the property as they stood, according to the order given in the wajib-ul-arz, in equal degree with regard to preemption. The pre-emptor replied that as the vendee had joined with him in the purchase of the property a co-sharer who had an inferior right to that of the pre emptor, therefore, the pre-emptor could enforce his claim against the vendee. The contention of the pre-emptor was allowed and his claim I was decreed. In disposing of the appeal; two learned Judges of this Court who heard it remarked as follows:

We also think that if we assume the custom of preemption to exist, a vendee, although having an equal right with the plaintiff, loses his right when he brings in as a co-vendee a co-sharer having an inferior right. It is urged that the bringing in of a co-sharer, even through his right is inferior, is very different from introducing a stranger. It is admitted that the introduction, of a stranger forfeits the right of the co-sharer against whom pre-emption is sought. We, however, can recognise no distinction in principle between the introduction of a stranger and the introduction of a person having an inferior right to the pre-emptor. If it were otherwise, pre-emption as between co-sharers could always be defeated if one co-sharer having an equal right could be induced to join in the purchase.

3. These remarks sufficiently dispose of the contention for Rahima, the appellant, in the present case. The appeal fails and is dismissed with costs.


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