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Adhari DubaIn Vs. Sheodihal Pande and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported in13Ind.Cas.708
AppellantAdhari Dubain
RespondentSheodihal Pande and anr.
Cases ReferredAbdul Razzaq v. Mumtaz Husain
pre-emption - sale by vendee, to a person entitled to pre-empt--suit to pre-empt the sale by vendee, maintainability of. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute......on the 4th of june, 1910, musammat dhiraji sold a portion of the property mentioned in the sale-deed of the 5th june, 1909, to one sheo dihal pande. on the 7th of june, 1910, musammat adhari dubain filed this suit and impleaded as defendants musammat dhiraji, the vendor, and sheo dihal pande, the vendeo, it appears that all three persons, dhiraji, adhari and sheo dihal, are share-holders in mahal brahwan. sheo dihal is not in any way related to either musammat dhiraji or musammat adhari who are dubains. lalta prashadi someshar and kateshar are related and closely related to shoo dinah it is admitted both sides that the wujib ul-arz of mouza brahwan contains a clause whereby a right of pre-emption over the property sold runs in favour of govt. hissardaran aziz qarib and then.....

George Knox, J.

1. This second appeal arises out of a suit brought by one Musammat Adhari Dubain to enforce a right of preemption over a 4 pie share haq-i-adna and 8 chaitaeks haq-i-ala in Mauza Brahwan. The circumstances which led to the present suit arose out of a sale made on the 5th of June 1909, by Lalta Prasad, Sameshar and Kateshar in favour of ore Musammat Dhiraji, On the 4th of June, 1910, Musammat Dhiraji sold a portion of the property mentioned in the sale-deed of the 5th June, 1909, to one Sheo Dihal Pande. On the 7th of June, 1910, Musammat Adhari Dubain filed this suit and impleaded as defendants Musammat Dhiraji, the vendor, and Sheo Dihal Pande, the vendeo, It appears that all three persons, Dhiraji, Adhari and Sheo Dihal, are share-holders in mahal Brahwan. Sheo Dihal is not in any way related to either Musammat Dhiraji or Musammat Adhari who are Dubains. Lalta Prashadi Someshar and Kateshar are related and closely related to Shoo Dinah It is admitted both sides that the Wujib ul-arz of Mouza Brahwan contains a Clause whereby a right of pre-emption over the property sold runs in favour of Govt. hissardaran aziz qarib and then hisardaran aziz baid, Lalta Parshad, Someshar and Kateshar, by selling this property to Dhiraji, contravened this Clause of the Wajib-ul-arz. One other point remains to be noticed, namely, that the sale-deed in favour of Musammat Dhiraji dated the 5th of June 1909 was a sale-deed convoying 5 pies 5 chattacks 2 bhars and the sale-deed of 4th June 1910 convoyed only 4 pies out of this share. It does not appear whence came the 8 chattel's share of haq-i-ala which is mentioned in the sale-deed of 4th June 1910. The Court of first instance decreed the claim. It held that Musammat Adhari was a nearer relation of the vendor Musammat Dhiraji. On appeal to the District Judge of Gorakbpur, Sheo Dihal contended that Adhari had no right of preemption as against him, and that he, Sheo Dihal, had a right of pre-emption being nearly related to Lalta Parshad, Someshar and Kateshar Prasad. Sheo Dihal was on the eve of enforcing by suit his right of pre-emption when Musammat Dhiraji approached him and they came to terms. The terms are contained in the deed of 4th June 1910. The learned District Judge found that the relationship alleged to exist between the ladies was a ground for pre-emption. But he went on to find that the second sale was, as he terms it, an exercise of the right of pre-emption and, relying upon the case of Hanuman Rai v. Udit Narain Rai 7 A. 917 he held that the sale by Dhiraji to Sheo Dihal gave rise to no right of pre-emption. He, therefore, allowed the appeal and dismissed the plaintiff's suit with costs. Musammat Adhari now comes to this Court and urges that the transaction in dispute being a sale and not a decree does give rise to the plaintiff's right of pre-emption. She also put forward the plea that as the respondents had left a part of the property sold in the hands of the vendee, Sheo Dihal could not succeed. No other case has been cited to me. In the course of the argument, reference was made to the case of Abdul Razzaq v. Mumtaz Husain 25 A. 334. It appears to me that this second case brings out a stronger light on the real facts which led to the decision in Hanuman Rai's case 7 A. 917 cited above. In both these cases, the Courts had before them a decree which had been passed upon a compromise in a suit. In facts in Hanuman Rai's case 7 A. 917, the appellant was forced to urge and did urge that the compromise in the former suit had all the virtue of a private sale and that he being a nearer co-sharer, his right of pre-emption accrued in consequence. In the case before me, there is no decree. It may be the case, as is found to be the case by the lower Appellate Court on Shoo Dihal's story of the facts, that he was on the eve of instituting a suit for pre-emption when Dhiraji came to him and persuaded him in settle the matter between them on the terms contained in the sale deed of 4th June 1910. But we have a sale-deed duly executed and registered, andib is a sale-deed which by itself would afford a right to Musammat Adhari to bring her claim for pre-emption, A great deal was said in the case to the effect that by allowing Adhari's claim, which, it was urged, was by way of collusion with Dhiraji, the Court would be defeasing the object of pre-emption and introducing a stranger into the mafia. This, however, is not the case. It is not the ct-se of introducing for the first time a stranger who had no existence in the mahal before the sale took place, and if she was an evil, she had become for some time past an existing evil in the mahal. I am unable to give effect to the contention urged by the learned Vakil for the respondent. It appears to me that Adhari's right had accrued, audit is a right to which under the circumstances effect must be given. If Shea Dihal wanted to make his position indisputable, he should either have obtained a sale-deed from Lalta Prashad, Someshar and Katesbar, or he should have taken his case into Court and there effected a compromise which would have brought him within the case of Harniman Rai 7 A. 917. He did neither. The result is that this appeal must be decreed, and the order of the Court of first instance restored. The appellant will have thirty days from this date to deposit in Court the sum of Rs. 221-15 if not already deposited. In default of her doing so, the suit will stand dismissed with costs in alt Courts. She will get the costs of this appeal if she pays or has paid the money within the time fixed.

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