Phula Bibi vs Karim Bakhsh And Ors. on 20 January, 1886

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Allahabad High Court
Phula Bibi vs Karim Bakhsh And Ors. on 20 January, 1886
Equivalent citations: (1886) ILR 8 All 102
Author: W C Petheram
Bench: W C Petheram, Straight, Oldfield, Brodhurst, Tyrrell


W. Comer Petheram, C.J.

1. I am of opinion that the answer to this reference, as altered, should be in the affirmative. The facts of the case are, that by the wajib-ul-arz of the village concerned it was agreed by the co-sharers that, if any of them desired to sell his share, he should offer it to the others before selling it to a stranger; and also that the price of the property, if sold to any of themselves, should be so much a share. One of the co-sharers sold his share to strangers for a greater price than that mentioned in the wajib-ul-arz. A suit is brought by another of the co-sharers against the vendor and against the purchasers, in whose possession the share is; and the question arises whether, under the circumstances, the plaintiff is entitled to possession of the share on payment of the price agreed upon under the wajib-ul-arz. I am of opinion that he is. It has always been considered–and this view has been acted upon–that agreements of this nature run with the land to this extent, that a co-sharer wishing to purchase, and to whom the property has not been offered, can follow it in the hands of the vendee, and get possession of it himself. If this is so, the agreement so far runs with the land; and if it does so to any extent, it must, in my opinion, do so to the full extent of the agreement,–that is to say, a co-sharer is entitled to purchase at the price agreed, before the property can be sold to any one else. As soon, therefore, as a co-sharer finds that another co-sharer has sold his share, he can call on the vendor and the purchaser to hand it over, upon payment of the price which he agreed to pay to those who were parties to the agreement. If the purchaser has paid more than was stipulated for in the agreement, he may get it back from the vendor. The pre-emptor can get the land under the original contract, that is to say, upon payment to his co-sharer of the price mentioned in the wajib-ul-arz; and the purchaser can recover the price which he paid, whatever it was, because the consideration has failed, and he has not got the land. For these reasons, I am of opinion that the answer to the reference, as altered, must be in the affirmative, and that the appeal must consequently be dismissed with costs.

Straight, J.

2. I am of the same opinion.

Oldfield, J.

3. I am of the same opinion.

Brodhurst, J.

4. I am of the same opinion.

Tyrrell, J.

5. I am of the same opinion. The ruling in Akbar Singh v. Juala Singh Weekly Notes 1885 p. 216 is distinguishable. The standard in this case is fixed and inflexible; in that case it was only a practicable alternative price to be adopted in the event of the selling and purchasing co-sharers being unable to agree together what the fair price should be.

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