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Bhup Singh and ors. Vs. Tundpal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.383
AppellantBhup Singh and ors.
RespondentTundpal
Cases ReferredKhatun Bibi v. Sayida Bibi
Excerpt:
pre-emption - wajib-ul-arz, contraction of--sharik zamindar, meaning of--right of pre-emption among pre-emptors of different classes inter se. - - they, therefore, clearly answer to the description of pre-emptors of the second class. the parties will pay and receive costs in all courts in proportion to failure and success......in the zamindari. it is true that the word hissadar is also used, but the words which follow the words hissadar jaddi were manifestly introduced to explain what was meant by hissadar jaddi, namely, that the person descended from the same ancestor must also be hissadars in the zamindari. it was to make the matter clear and to leave no room for doubt that the words shurik zamindari appear to have been inserted in the wajib-ul-arz. in my judgment the lower appellate court has placed a forced construction on the terms of the wajib-ul-arz and has introduced into it words which do not exist in it. in this view the plaintiffs being descended from the same ancestor as the vendor and being also co-sharers in the same zamindari, have a preferential right over the vendee who is not a relative of.....
Judgment:

Banerji, J.

1. This appeal arises out of a suit for pre-emption and the main question is whether the plaintiffs have priority of right over the defendant vendee. The property sold is situate in khata khewat No. 53, patti Budh Singh. The plaintiffs are co-sharers in khata khewat No. 54 and the vendee is a co-sharer in khata khewat No. 56 of the same patti. The plaintiffs claim priority on the ground that they are related to the vendor as found by the Court below, and that under the terms of the wajib-ul-arz they have a preferential right to pre-empt. The wajib-ul-arz provides for four classes of pre-emptors : first own brother; second hissadar jaddi who holds a share in the zamindari; third hissadar patti, and fourth hissadar in another thole of the patti. As I have said above it has been found that the plaintiffs and the vendor are descended from the same common ancestor. It is admitted that they are hissadars, that is, co-sharers in the zamindari. They, therefore, clearly answer to the description of pre-emptors of the second class. The learned Judge of the lower appellate Court was of opinion that by the words shank zamindari in the second category of pre-emptors was meant a co-sharer in the particular property sold, that is, a co-sharer in the same khata khewat. If that had been the intention there was nothing to prevent the framers of the wajib-ul-arz from giving clear expression to that intention by using the words sharik khata instead of sharik zamindari. The whole context of the wajib-ul-arz shows that the intention was to give the first right of pre-emption to own brothers, whether they were co-sharers or not; and after them to the relatives who also possessed the qualification of being co-sharer in the zamindari. It is true that the word hissadar is also used, but the words which follow the words hissadar jaddi were manifestly introduced to explain what was meant by hissadar jaddi, namely, that the person descended from the same ancestor must also be hissadars in the zamindari. It was to make the matter clear and to leave no room for doubt that the words shurik zamindari appear to have been inserted in the wajib-ul-arz. In my judgment the lower appellate Court has placed a forced construction on the terms of the wajib-ul-arz and has introduced into it words which do not exist in it. In this view the plaintiffs being descended from the same ancestor as the vendor and being also co-sharers in the same zamindari, have a preferential right over the vendee who is not a relative of the vendor. It was contended by Mr. Harbans Sahai, on behalf of the respondent, that the wajib-ul-arz contemplated a claim for pre-emption only in the case of a sale to a stranger, that is, to a person who did not hold a share in the village. As to this I may first of all remark that this was not the contention in the Court below. In the next place it is not, in my opinion, warranted by the terms of the wajib-ul-arz. The fact that the wajib-ul-arn provides that the property should be offered first to the vendor's own brother, then to a relative who is a co-sharer, then to co-sharers in the patti and so on, and in case of refusal of these persons to a stranger, shows that the vendor was to sell the property in the order mentioned in the wajib-ul-arz. The document then provides that if there is any dispute as to the price the pre-emptor is to pay such price as a stranger that is any other person would pay. It cannot be held upon a true construction of the wajib-ul-arz that the right of pre-emption was to arise only in the case of a sale to a stranger. In this respect the wajib-ul-arz in question is different from the wajib-ul-arz which was the basis of the suit in Khatun Bibi v. Sayida Bibi 27 A. 457. The wajib-ul-arz in that case began with the recital that for such price as a stranger might pay pre-emption might be claimed by the three classes of persons mentioned in the document. That is not the case here.

2. The only other questions in the case relate to the sale-price and the forfeiture of the plaintiffs' right to pre-empt. The latter of the questions has been found, by the Court below, in favour of the plaintiffs. Its finding as to the price is that it is Rs, 1,556. These findings are conclusive in this appeal.

3. The result is that I allow the appeal and setting aside the decree of the lower appellate Court decree the plaintiffs' claim, subject to the condition that they do pay Rs. 1,556 as consideration for the sale within three months from this date otherwise the suit will stand dismissed with costs. The parties will pay and receive costs in all Courts in proportion to failure and success. Costs in this Court will include fees on the higher scale.


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