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Monoranjan Mitra Vs. Fazlar Rahman and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal925,103Ind.Cas.823
AppellantMonoranjan Mitra
RespondentFazlar Rahman and ors.
Cases Referred and Jiban Krishna Mullik v. Nirupama Gupta A.I.R.
Excerpt:
- .....to the terms of the mahommedan law, the co-sharers of the said insolvent have and shall have the right of pre-emption.2. in accordance with that notice the sale was held on the 8th september and pertain persons including the appellant bid at the auction. before the sale commenced the respondent fazlar rahaman who is the brother of the insolvent claimed his right of pre-emption as a co-sharer. it is not disputed that he was a co-sharer. as the several lots were put up for sale the respondent asserted his right of pre-emption apparently without protest from the appellant. eventually the lots sold realized rs. 1,51.5 and the appellant was the highest bidder, although at the close of the bidding for each lot the respondent had asserted his right of pre-emption.3. thereupon, pursuant to the.....
Judgment:

1. This is an appeal from an order of the learned Additional District Judge of dacca of the 8th September, 1925. The order is one the nature of which is not precisely defined. The receiver is an officer of the Court and he must act according to the order of the Court. Under Section 59, Provincial Insolvency Act, the receiver is entitled to sell the property of the insolvent subject to the provisions of that section. On the 24th August, 1925, there was a notification of the conditions of sales published in the panchayet, a local newspaper, and it was upon the terms and conditions of that notice that the appellant must be taken to have bought the property. That notification states that the insolvent's share in certain family property will be sold by public auction subject to the charges that were thereupon imposed. The notice proceeded:

according to the terms of the Mahommedan Law, the co-sharers of the said insolvent have and shall have the right of pre-emption.

2. In accordance with that notice the sale was held on the 8th September and pertain persons including the appellant bid at the auction. Before the sale commenced the respondent Fazlar Rahaman who is the brother of the insolvent claimed his right of pre-emption as a co-sharer. It is not disputed that he was a co-sharer. As the several lots were put up for sale the respondent asserted his right of pre-emption apparently without protest from the appellant. Eventually the lots sold realized Rs. 1,51.5 and the appellant was the highest bidder, although at the close of the bidding for each lot the respondent had asserted his right of pre-emption.

3. Thereupon, pursuant to the terms of the notification the receiver proceeded to give effect to the respondent's claim as pre-emptor. The respondent, however, was not anxious to pay the whole of the purchase money at once. He paid Rs. 1,350 forthwith and desired to have a short period, until the 12th September within which to pay the balance. Now, under Section 59 the receiver was not at liberty to accept consideration for the purchase by future payment without obtaining the leave of the Court, and he proceeded to obtain that leave forthwith, and the order complained of is an order under Section 59, of the Act giving leave to the receiver to accept a part of the consideration money at a future date upon the terms set out in the order. It was strongly contended by the learned advocate for the respondents that this order was not an order within Section 75, Sub-section (3) of the Act, because he contended that in substance it was merely a direction by the Court to one of its officers. There is much force in that contention, but it is unnecessary for us to express a definite opinion on the point because, in our opinion, there is no substance in the appeal.

4. The learned vakil who appeared for the appellant, and who if, I may say so, argued his points extremely well and confined his argument within a narrow compass, urged that according to the principles of Mahommedan Law the respondents had no right of pre-emption in the circumstances obtaining in this case. We resisted the temptation to embark upon what would have been the discussion of an interesting problem of law because we are of opinion that the appellant is bound by the terms of the contract into which he entered, and, in our opinion one of the terms of the contract of sale into which he entered was that the co-sharers of the insolvent should be entitled if the sale took place to preempt the property sold. That, we think, is clear from the notification of sale itself which provide that the

co-sharers of the said insolvent have and shall have the right of pre-emption.

5. It is a matter of no moment whether according to the rules of Mahommedan Law they would be held to have a right of pre-emption, because the appellant has contracted that if he bought the property the co-sharers should have a right of pre-emption. Now, the property was sold, and we think that, the appellant had no cause of complaint if after the sale had taken place the co-sharers exercised the right of pre-emption under the terms of the contract to which the appellant had agreed. This case is to be determined upon the words of the contract to which the appellant was a party. It is clear that the right of pre-emption which was given to the respondent under the contract was one that he was entitled to exercise see Gandy v. Gandy [1885] 30 Ch. D. 57 and Jiban Krishna Mullik v. Nirupama Gupta A.I.R. 1926 Cal. 1009.

6. In our opinion there is no substance in this appeal which must be dismissed with costs; the hearing-fee being assessed at three gold mohurs to the respondent Fazlar Rahman, and two gold mohurs to the receiver.


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