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Udai Chand Vs. Mt. Bakka and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil R. 1st Appeal No. 16 of 1950
Judge
Reported inAIR1952Raj52
ActsBikaner State Pre-emption Act, 1919 - Sections 10(1)
AppellantUdai Chand
RespondentMt. Bakka and ors.
Appellant Advocate Ugam Raj, Adv.
Respondent Advocate Ganpat Singh, Adv.
DispositionAppeal dismissed
Cases ReferredBajranglal v. Gani
Excerpt:
.....eighth clause of section 10 (1) which reads as follows: 5. we have in this case to interpret the word 'community'.it may be mentioned that the bikaner act does not define the word 'community' anywhere and we have, therefore, to find its meaning as best as we can by reference to dictionaries and the circumstances in which the word has been used in the particular section. but inthe case of hindus, it seems to us that therestriction will have to go further because thereare four well recognised 'varnas' among hinduseach of which may be said to consist of a bodyof persons organised into a social unit further, considering that the right of pre-emptionis given to the members of the same community when relations do not exist, it is dear thatthe restriction among hindus must refer tothese four..........in fact, belong to tbe same community because they are both hindus. the argument is that the word 'community' used in this section is a very wide word and should be given the widest application and that, therefore, every hindu should be deemed to be a member of the same community. this view, however, was not accepted by the high court of the former bikaner state in an unreported case 'rangla v. hanumanprasad', appeal no. 2 of 1948. in that case, the vendors were agarwals and the pre-emptor was a brahmin. it was held that the two did not belong to the same community. in that case, reference was also made to an earlier decision of the judicial committee of the former state of bikaner, 'bajranglal v. gani', appeal no. 49 which was decided on the 23rd of january 1948'. in that case,.....
Judgment:

Wanchoo, C.J.

1. This is an appeal by Udaichand against the decree of the District Judge of Bikaner dated 26th of May 1950 dismissing the suit brought by the plaintiff-appellant for pre-emption.

2. The suit related to the pre-emption of a house in the city of Bikaner. It belonged to one Ghewarchand Suthar. This man sold the house to Mt. Bakko wife of Senskaran Oswal. The plaintiff-appellant claimed pre-emption on the ground that his house was contiguous to the house of Ghewar Chand and opened on the same side and he was of the same community as Ghewar Chand and was therefore entitled to preempt. Pre-emption was also claimed on another ground based on Clause 7 of Section 10(1) of the Bikaner State Pre-emption Act (No. 1 of 1919) but that ground is not being urged before us in appeal. Reliance is being placed entirely on Clause 8 of Section 10 (1) of the Act.

3. The suit was opposed by Mt. Bakko. She admitted that the plaintiff's house was contiguous to that of her vendor and that the two houses opened on the same side but she denied that the plaintiff was of the same community as the vendor. She therefore, said that he could not take advantage of the eighth clause of Section 10 (1). The only question for decision, therefore, before the Court below was whether the plaintiff belonged to the same community as the vendor and that is the question which we have also gone into.

4. Before we turn to answer that question, we should like to set out the eighth clause of Section 10 (1) which reads as follows:

'The right of pre-emption shall vest eighthly where the sale is of a property contiguous to other properties in the owners of such of the latter properties as are contiguous to the property sold and open in the same direction: provided that only those bearing relationship to the vendor and failing them, those of the same community as the vendor, shall have a right of pre-emption.'

The trial Court relying on a decision of the High Court of the former State of Bikaner dismissed the suit on the ground that the pre-emptor did not belong to the same community as the vendor. The contention on behalf of the appellant before us is that the pre-emptor and the vendor, in fact, belong to tbe same community because they are both Hindus. The argument is that the word 'community' used in this section is a very wide word and should be given the widest application and that, therefore, every Hindu should be deemed to be a member of the same community. This view, however, was not accepted by the High Court of the former Bikaner State in an unreported case 'Rangla v. Hanumanprasad', Appeal No. 2 of 1948. In that case, the vendors were Agarwals and the pre-emptor was a Brahmin. It was held that the two did not belong to the same community. In that case, reference was also made to an earlier decision of the Judicial Committee of the former State of Bikaner, 'Bajranglal v. Gani', Appeal No. 49 which was decided on the 23rd of January 1948'. In that case, the vendor was an Agarwal and the pre-emptor Bajranglal was a Maheshwari. It was held in that case that the two belonged to the same community.

5. We have in this case to interpret the word 'community'. It may be mentioned that the Bikaner Act does not define the word 'community' anywhere and we have, therefore, to find its meaning as best as We can by reference to dictionaries and the circumstances in which the word has been used in the particular section. In the Shorter Oxford English Dictionary, the word 'community' has been given a number of meaning as below: (1) The commonalty. (2) A body of people organised into a political municipal or social unity, (3) The body of persons living together and practising community of goods. In 'Webster's New International Dictionary of the English language also, the word 'community' has various meanings of which the following appear relevant for our purpose: (1) The society at large. (2) A commonwealth or state. (3) A body politic, (4) The public or peoples in general, (5) Restrictedly, the people of a particular place or region as a town, village or neighbourhood, (6) A body of people having common organisation of interest or living in the same place under the same laws and regulations as a community of monks.

6. It will appear from these meanings that in its widest sense, the word 'community' will include all the members of the public in the whole country but the word also has a restricted meaning and may apply either to all persons living in a particular place, for example, a town or a village or to all persons knit together by certainties which may be political, municipal or social.

7. It seems to us that the word 'community' as used in the eighth clause of Section 10 (1)has not been used in its widest but in its restricted sense. The word appears in a provisoin that clause and the proviso is meant to restrict what would otherwise have been a generalright given to everyone who has property contiguous to the property sold and opening inthe same direction. The restriction that hasbeen placed in the proviso is twofold. In thefirst place, the right of pre-emption has beengiven to relations and secondly, failing the relations, to persons of the same community. Itseems to us, therefore, that the meaning to beattached to this word in the context in whichit has been used should be restricted to peopleorganised into a social unit. If that meaningis given, it is clear that persons belonging, forexample to the Christian or Moslem religionwill form communities by themselves. But inthe case of Hindus, it seems to us that therestriction will have to go further because thereare four well recognised 'Varnas' among Hinduseach of which may be said to consist of a bodyof persons organised into a social unit further, considering that the right of pre-emptionis given to the members of the same community when relations do not exist, it is dear thatthe restriction among Hindus must refer tothese four well-defined Varnas. The judgment of the Judicial Committee of the formerBikaner State in which it was held that'Agarwals and Maheswaries belong to thesame community' can be reconciled only onthis principle with the later judgment of theHigh Court, in which it was held that a Brahminand an Agarwal belong to two different communities. We are, therefore, of opinion thatwhere both the pre-emptor and the vendor areHindus, we have to restrict the meaning ofthe word 'community' a little than in thecase of say. Moslems or Christians and musttake into account whether the two partiesbelong to the same Varna or not. Applyingthis principle to the present case, we findthat the vendor is a suthar while the pre-emptor is an Oswal. The two. therefore, donot belong to the same community and thetrial Court was right in dismissing the suitfor pre-emption. The appeal is hereby dismissed with costs to the vendees respondent.


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