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Bhagwan Das and ors. Vs. Tej Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All27; 56Ind.Cas.148
AppellantBhagwan Das and ors.
RespondentTej Ram and ors.
Excerpt:
custom - pre-emption--preferential right--relationship--burden of proof--wajib-ul-arz, entry in, construction of--hissadar qaribi, whether denotes blood relation. - - 4; that he bad a right of pre-emption as against the defendant no. if the plaintiff comes into court claiming a preferential right over another co sharer by reason of relationship, it is for him to clearly prove that fact......out of which the present appeal from order has arisen. he claimed that he was own brother of the original vendor defendant no. 4; that he bad a right of pre-emption as against the defendant no. 1; that the transfer by defendant no. 1 in favour of defendants nos. 2 and 3 was a fictitious transaction gone through with the object of defeating his right. in the alternative he pleaded that if it was a genuine transaction, he still had a right of pre-emption as he was nearer in blood to the original vendor defendant no. 4 and had a preferential right to the property as compared to defendants nos. 2 and 3. the court of first instance dismissed the suit, holding that the plaintiff's relationship gave him no advantage over the defendants nos. 2 and 3 and also because the original vendor and the.....
Judgment:

1. On the 15th of February 1918 the defendant No. 4 sold certain property to defendant No. 1. On the 25th of February 1913 defendants Nos. 2 and 3, who were co-sharers, sent a notice to the first defendant claiming a right of pre- emption in the property, whereupon on the 12th of March 1918 defendant No. 1 re-sold the property to defendants Nos. 2 and 3. After that the present plaintiff brought a suit to enforce the right of pre-emption out of which the present appeal from order has arisen. He claimed that he was own brother of the original vendor defendant No. 4; that he bad a right of pre-emption as against the defendant No. 1; that the transfer by defendant No. 1 in favour of defendants Nos. 2 and 3 was a fictitious transaction gone through with the object of defeating his right. In the alternative he pleaded that if it was a genuine transaction, he still had a right of pre-emption as he was nearer in blood to the original vendor defendant No. 4 and had a preferential right to the property as compared to defendants Nos. 2 and 3. The Court of first instance dismissed the suit, holding that the plaintiff's relationship gave him no advantage over the defendants Nos. 2 and 3 and also because the original vendor and the plaintiff and defendants Nos. 2 and 3 were all co-sharers in the same subdivision of the Mahal, The plaintiff appealed and in the lower Court it was held that the custom as set out in the wajib-ul-arz gave the plaintiff a preferential right because he was a blood relation of the original vendor defendant No. 4. The custom as set out in the wajib-ul-arz gives the first right to 'hissadar qaribi' and then in case of his refusal to other co-sharers. The lower Court has held that the word qaribi' here denotes blood relation. He does so because further on there is a sentence to the effect that if any person sells to his sons or to his near relations, then nobody else shall have a right of pre emption. This is entirely a separate statement in the waiib ul arz. It does not qualify that portion of the document where it states that a near co sharer will have the first right to take property on sale. It seems to us by no means clear that the word 'qiribi' indicates a blood relation. It is equally open to the meaning of nearness in space as of nearness in blood. If the plaintiff comes into Court claiming a preferential right over another co sharer by reason of relationship, it is for him to clearly prove that fact. A doubtful document such as the one now before us cannot possibly be held to satisfactorily establish his right. We think that the Court of first instance was correct and the tower Court has made an error in interpreting this document. We, therefore, allow the appeal, set aside the order of the Court below, restore the decree of the Court of first instance. The appellants will have their costs in all Courts.


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