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Baboo Raghubardyal, Minor, Represented by Bunsi Lal Vs. Saligram Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal224
AppellantBaboo Raghubardyal, Minor, Represented by Bunsi Lal
RespondentSaligram Singh and anr.
Cases ReferredManna Singh v. Ramadhin Singh I.A.
Excerpt:
mahomedan law, pre eruption - joint purchase by co-sharer and stranger, effect of--co-sharer--specification of share in a deed of sale, effect of. - .....there was only one transaction, one purchase at one entire consideration of the whole interest sold in both villages. we cannot split this transaction up into several, we cannot say that any particular part of the consideration was the price of two-thirds of the share sold in dehiri as distinguished from the other one-third in that village, and the whole-interest sold in sadikpur. and this view is supported by the decision of the allahabad court in manna singh v. ramadhin singh i.a. 252 already cited.
Judgment:

1. The judgment of the Court (Wilson and O'Kinealy, JJ.), so far as is material for the purpose of this report, was as follows:

The state of facts with which we have to deal is this. The plaintiff owns shares in two villages, Sadikpur and Dehiri; and the third defendant, Sewanund, also held a share in each of the villages. Sewanund, by a kobala. dated the 3rd March 1883, conveyed his shares in both the villages to the first defendant Saligram, and the second defendant, Ramloohun. Of these two, Saligram was previously the holder of a share in Dehiri but not in Sadikpur. Ramloohun had no share in either. The property is in Gya, where the parties reside, and they are Hindus. It is not disputed that the law of pre-emption, borrowed from the Mahomedans, is by custom in force among the Hindu inhabitants of Behar.

2. The plaintiff brought this suit to enforce against the defendants his alleged right of pre-emption, and he claimed, by virtue of that right, to have the shares in the two villages which Sewanund had sold to Saligram and Ramlochun conveyed to him on his paying the price for which they were sold. The District Judge has found what the actual consideration money was, and has given the plaintiff a decree for pre-emption on payment of that amount. The defendants in second appeal complain of that decree, and have raised several objections on points of law.

3. It was contended, first, that there was no right of pre-emption at all in the case. It has been settled by the decision of a Full Bench of this Court in Lalla Nowbut Lall v. Lalla Jewan Lall 4 C. 831, that where one sharer in an estate sells to another, a third has no right to come in and claim pre-emption as to the whole or any part of the share so sold. And it is there explained that the object of pre-emption 'is to prevent the inconvenience which may result to families and communities from the introduction of a disagreeable stranger as a coparcener or near neighbour.' The present case is very different A claim to pre-emption of shares in two villages is resisted on the ground that in one of the two villages one of the two vendees had already a share. Such a case is neither within the terms of the Pull Bench decision nor within the principle on which it was based. On the other hand, in a long series of cases, the Sudder Court and the High Court of the North-West Provinces have held that if a sharer in an estate alienates his interest to a co-sharer and a stranger, the purchasing sharer, by joining an outsider in the purchase, forfeits his rights as a sharer, and that another co-sharer has a right of pre-emption Section Sheodoyal Ram v. Bhyroo Ram N.W.P.S.D. Rep (1860) 53. Guneshee Lal v. Zarant Ali 2 N.W.P.H.C. 343. Manna Singh v. Ramadhin Singh 4 A. 252. Bhawani Prasad v. Damru 5 A. 197; Harjas v. Kanhya 7 A. 118. It is true, as pointed out by the District Judge, that in those cases the right of pre-emption did not arisra directly from the Mahomedan law governing Mahomedans, nor, as here, from the same law applied by custom to Hindus, but from a written document, the wajib-ul-arz. But in none of the cases was the decision rested upon the special terms of the document. In all of them it turned upon the general nature of the right of pre-emption, which was understood to be pre-emption, as known in the Mahomedan law. We have no hesitation in following this series of rulings; and it must be observed that in this case there is an additional complication, for not only was one of the purchasers no sharer in the village of Dehiri, but in Sadikpur both were strangers.

4. It was contended, secondly, that the defendant, Saligram, is at least entitled to hold such share as, under the purchase, was assigned to him in the village of Dehiri in which he had already a share. We cannot accede to this view. It is true that the kobala declares two-thirds of what was purohased to be for Saligram, and one-third for Eamlochun. But, nevertheless, there was only one transaction, one purchase at one entire consideration of the whole interest sold in both villages. We cannot split this transaction up into several, we cannot say that any particular part of the consideration was the price of two-thirds of the share sold in Dehiri as distinguished from the other one-third in that village, and the whole-interest sold in Sadikpur. And this view is supported by the decision of the Allahabad Court in Manna Singh v. Ramadhin Singh I.A. 252 already cited.


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