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Kundan and anr. Vs. Sobhanram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All375; 71Ind.Cas.655
AppellantKundan and anr.
RespondentSobhanram and anr.
Cases ReferredLok Singh v. Balwani Singh
Excerpt:
custom - pre-emption--wajib-ul-arz, construction of--qarib ekjaddi, meaning of--person alienating share bound to offer same to qarib ekjaddi co-sharer--share, whether must be offered to nearest qarib ekjaddi--pre-emption, right of, proof of. - - we think it sufficient to say that in the present case we are at any rate not so satisfied that the courts below were wrong in the interpretation which they have put on the somewhat doubtfully worded clause as to warrant our interference with the decision of the lower appellate court we dismiss this appeal, therefore, with costs......who are also co-sharers. we may translate the phrase qarib ekjaddi as a near descendant of a common ancestor with the vendor, but this is not sufficient to determine the particular point raised by the appeal. the vendor, ghure, was the grandson of one akhi ram and the plaintiffs who claim pre-emption are the sons of another son of akhi ram, and, therefore, first cousins of the vendor. the vendee-defendant is also a descendant of the same common ancestor as the vendor. but to find that common ancestor it is necessary to carry the pedigree one degree further. aki ram's father's name was narhatia and the vendee sobha ram is the grand-son of lalu ram, a grandson of narhatia. the courts below have concurred in taking the same view of the custom put forward by the plaintiff. they say.....
Judgment:

1. This is a second appeal by a plaintiff pre-emptor and it raises a very simple and definite point. Both parties in the Courts below admitted themselves to be bound by a certain custom in the matter of pre-emption which was recorded in the Wajib-ul-arz of the village. Where they differed was as to the nature of the custom evidenced by that record. The Wajib-ul-arz specifies certain classes of persons who are to have the first offer in the event of a co-sharer wishing to alienate his share. The first class is described as the qarib ekjadi of the vendors who are also co-sharers. We may translate the phrase qarib ekjaddi as a near descendant of a common ancestor with the vendor, but this is not sufficient to determine the particular point raised by the appeal. The vendor, Ghure, was the grandson of one Akhi Ram and the plaintiffs who claim pre-emption are the sons of another son of Akhi Ram, and, therefore, first cousins of the vendor. The vendee-defendant is also a descendant of the same common ancestor as the vendor. But to find that common ancestor it is necessary to carry the pedigree one degree further. Aki Ram's father's name was Narhatia and the vendee Sobha Ram is the grand-son of Lalu Ram, a grandson of Narhatia. The Courts below have concurred in taking the same view of the custom put forward by the plaintiff. They say that both the vendee-defendant and the plaintiffs fall within the category of qarib ekjaddi, or near descendants of a common ancestor with the vendor. It is admitted that both parties are co-sharers. Therefore, according to the view taken by both the Courts below, both the plaintiffs and the vendees fall in one and the same category and the custom recorded in the Wajib-ul-arz does not give any preference to one member of that category over another. In substance that the Courts below have held is that, according to the custom evidenced by this Wajib-ul-arz, a co-sharer in the position of the defendant Ghure, desiring to part with a portion of his property, was entitled to choose amongst the whole body of persons who could fairly be described as descendants of the same common ancestor with himself, but was not obliged to offer the option of purchase in the first instance to the descendant of a nearer common ancestor, or a nearer descendant of the same common ancestor rather than a more distant one.

2. In appeal it is contended that the Courts below have come to an erroneous finding because they have misinterpreted the terms of the Wajib-ul-arz. The contention takes two distinct forms. On the one hand, it is suggested that the vendee, Sobha Ram, is such a distant relation of the vendor, Ghure, that he could not fairly be described as 'qarib ekjaddi' at all. On this point we think it sufficient to say that the descendant of a common ancestor no further removed than Narhatia in the pedigree now before us might fairly be described as a near descendant of the same common ancestor and may be treated as falling within the category of persons so described in the record of the custom found in the Wajib-ul-arz. In the second place, it is contended that the words qirib ekjaddi ought to be interpreted as meaning the nearest male agnates for the time being i.e. in existence at the time of the sale. This is certainly an ingenious argument and by no means without force. We have to remember that the case comes before us in second appeal, that it is an appeal by a plaintiff who in claiming to pre-empt a sale in favour of a vendee who is both a co-sharer and a descendant of the same common ancestor as the vendor and is bound to satisfy the Court that he has in fact a preferential claim. We have been referred to one or two authorities which lay down after all nothing more than the reasonable principle that a plaintiff claiming pre-emption on the basis of particular custom must satisfy the Court, not merely as to the existence of a custom of pre-emption binding on the parties, but of the particular custom on the strength of which he claims preference over the vendee. A case more directly in point is that of Lok Singh v. Balwani Singh (1). The learned Judges who decided that case held that a clause; in the Wajib-ul-arz giving in certain circumstances a pre-emptive right to persons described as pattidir qaribis of the vendor did not operate so as to give a nearer relation a preferential right over a more distant one. The regarded the whole body of persons who can fairly be described as pattidar qaribi of the vendor as forming a class by themselves, possessing equal rights, amongst whom the intending vendor liberty to make his own choice when he came to part with his own property. We think it sufficient to say that in the present case we are at any rate not so satisfied that the Courts below were wrong in the interpretation which they have put on the somewhat doubtfully worded clause as to warrant our interference with the decision of the lower Appellate Court We dismiss this appeal, therefore, with costs.


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