Jagannath vs Gola And Anr. on 12 May, 1910

Allahabad High Court
Jagannath vs Gola And Anr. on 12 May, 1910
Equivalent citations: 7 Ind Cas 261
Author: Banerji
Bench: Banerji


Banerji, J.

1. The only question in this appeal, which has arisen out of a suit for pre-emption, is whether the plaintiffs have a preferential right of pre-emption in respect of the property purchased by the vendee-appellant. The wajib-ul-arz provides for two classes of preemptors, first, the nearest relative of all, who owns a share in the village, and, second, any other co-sharer in the same patti or thok. The plaintiffs claim to be the nearest relation of the vendor, as also his co-sharers. The vendee also is a co-sharer of the vendor, but it was found by the Court of first instance that either he is no relative of the vendor or is a very remote relative. On this point the lower appellate Court has expressed no opinion. But both the Courts below have found that the plaintiffs are the nearest relatives of the vendor and own a share in the village. Those Courts accordingly have held that the plaintiffs have a preferential right of pre-emption. It is contended in this appeal that under the terms of the wajib-ul-arz all the relatives stand on the same footing and as between them a nearer relation has no priority. This contention would render the words sab se qaribi rishtedar’, (the nearest of all co-sharers) in the wajib-ul-arz superfluous and unmeaning. Priority of right is given not to every co-sharer who is a relative of the vendor but to the co-sharer who is his nearest relative among all relatives. The plaintiffs have been found to be the nearest relatives and, therefore, under the wajib-ul-arz they have the first right to claim pre-emption. The wajib-ul-arz does not confer that right only in the case of a purchase by a stranger. I agree with the view taken by the Courts below and dismiss the appeal with costs including fee on the higher scale.

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