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Syed Fazal Haq Vs. Aziz Hasan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All163; 77Ind.Cas.940
AppellantSyed Fazal Haq
RespondentAziz Hasan and ors.
Excerpt:
custom - pre-emption--wajib-ul-arz, entry in--bhai and baradarzadah, meaning of. - .....and 'baradarzadah.' it is contended on behalf of the defendant-appellant the vendee that the words 'bhai' ant 'baradarzadah' in the wajib-ul-arz mean own brother and the son of the own brother, and that they cannot be extended to mean any other relatives.2. it appears that one musammat saidunnissa executed a deed of sale in favour of musammat reaz-un-nissa and the latter in her turn conveyed the property to one sayed fazal haq. thereupon aziz hasan, musammat rahmat-un-nissa bibi and waqar-un-nissa bibi sued to recover possession of the property from fazal haq on the allegation that they had a preferential right to get it. they alleged that they were of the same family as musammat said-un-nissa and, therefore, under the terms of the wajib-ul-arz had a preferential right to the.....
Judgment:

1. The dispute between the parties to this appeal relates to the interpretation of the words 'bhai' and 'baradarzadah.' It is contended on behalf of the defendant-appellant the vendee that the words 'bhai' ant 'baradarzadah' in the wajib-ul-arz mean own brother and the son of the own brother, and that they cannot be extended to mean any other relatives.

2. It appears that one Musammat Saidunnissa executed a deed of sale in favour of Musammat Reaz-un-nissa and the latter in her turn conveyed the property to one Sayed Fazal Haq. Thereupon Aziz Hasan, Musammat Rahmat-un-nissa Bibi and Waqar-un-nissa Bibi sued to recover possession of the property from Fazal Haq on the allegation that they had a preferential right to get it. They alleged that they were of the same family as Musammat Said-un-nissa and, therefore, under the terms of the wajib-ul-arz had a preferential right to the property as against as stranger. The Court of first instance dismissed the claim holding that the plaintiffs were too distantly related to Musammat Said-un-nissa to fall under the terms 'bhai' and 'baradarzadah.'

3. On appeal the learned District Judge disagreed with toe First Court and held that the words 'bhai' and 'baradarzadah' used in the wajib-ul-an did not mean the own brother and the own brother's son only, but had a larger significance. He was of opinion that the said words meant the members of the family of the vendor including thereby distant relatives also. The decree of the First Court was accordingly reversed and the claim of the plaintiff was decreed.

4. The vendee in second appeal before us repeats the argument which found favour with the learned Munsif. According to the appellant the words 'bhai' and 'baradarzadah' signify and can only signify an own brother and an own brother's son.

5. We do not think that the contention for the vendee-appellant is correct. 'Bhai' and 'baradarzadah' are general terms and apply in the Urdu language to much more distant relations than in any other language. The vendor Musammat Said-un-nissa and the plaintiffs are descended from a common ancestor, of the name of Basu Mian. One of the plaintiffs and the vendor are in the same degree of descent from Basu Mian. We think that the plaintiffs have a preferential right to a stranger on the terms of the wajib-ul-arz. The appeal, therefore, fails and is dismissed with costs.


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