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Allahabad High Court
Syed Mohammad vs Jaitul Bibi And Ors. on 25 February, 1927
Equivalent citations: AIR 1927 All 739, 101 Ind Cas 499


1. This is a plaintiff’s appeal arising out of a suit for pre-emption under the Agra Pre-emption Act. The plaintiff is the great-grandson of Saiyed Ahmad Ali, the common ancestor, and the vendor is his great-granddaughter. The plaintiff claimed preference on the ground that he was a relation of the vendor, whereas the vendee was not related to him. The Courts below have disallowed the plaintiff’s claim on the ground that Section 12(3) is not applicable to this case but only applies to cases “where there are rival suits brought by various pre-emptors. This view has not been accepted by this Court in several cases. We may mention the case of Ishwar Datt Upadhiya v. Mahesh Datt Upadhiya A.I.R. 1925 All. 747. The plaintiff is, therefore, entitled to claim preference if he is related to the vendor and not removed from the common ancestor by more than four degrees. In Jadunandan Rai v. Bindeshri Rai A.I.R. 1927. All. 434 it was held by this Bench that the four degrees were to be counted from the common ancestor and not from the vendor and that in counting those degrees the common ancestor has to be included. In the present case the pre-emptor being the great-grandson of the common ancestor is just within four degrees from the common ancestor including him. The plaintiff, therefore, has clearly a preferential right of pre-emption. No other question arises in this case, and the amount of consideration was not disputed. It was Rs. 2,084.

2. We accordingly allow the appeal, set aside the decree of the Court below and decree the plaintiff’s claim for pre-emption on payment of Rs. 2,084 within two months from this date. If the amount is paid within the time allowed the plaintiff will have his costs in all Courts including in this Court fees on the higher scale. If the amount is not so paid his suit shall stand dismissed with costs in all Courts including in this Court fees on the higher scale.

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