MATU RAM Vs. IMTIAZ ALI

JUDGEMENT

(1.) THIS is an appeal against a judgment and decree of District Judge Maharaj Kishore dated the 27th November 1947 holding that the plaintiff being an Aggarwal Mahajan doing business of money-lending was a member of the joint Hindu family with his father and therefore could not pre-empt the sale by his father which was for Rs. 2,000/- by means of a sale-deed dated the 5th january 1944, the property sold being 5 bighas 1 biswa of land. The suit for pre-emption was brought under Section 15 of the Punjab Pre-emption Act on the ground that the plaintiff is a son of the vendor and this suit has been dismissed by the District Judge on the ground that the plaintiff is a member of a joint Hindu family with his father,

(2.) THE plaintiif's appeal in this Court is based on the ground that in the first place he and his father were governed by custom and therefore there was no joint Hindu family, but in my opinion the learned Judge has rightly held in this case that in spite of the fact that the tribe was consulted at the time of the preparation of the Riwaj-i-am, the family being a trading family doing money-lending business and belonging to the Aggarwal caste and therefore they are governed by hindu Law, and nothing has been shown which would go to prove that the learned Judge has in any manner erred in coming to this conclusion.

(3.) IT is then submitted that even though the plaintiff is a member of a joint Hindu family, he has a right of pre-emption, and reliance is placed on a judgment of the Lucknow Chief Court in 'himanchal SINGH v. AJODHIYA SINGH', 4 Luck 370. In that case it was held that even a member of a joint Hindu family, where property is sold by the Manager, can bring a suit for pre-emption on the ground that he had the status of a co-sharer on the date of the sale within the provisions of the Oudh Laws Act (Act XVIII (18) of 1876 ). It was also held that a Hindu son may be debarred from challenging the sale on the grounds open to him under the Hindu Law, but he cannot be debarred from exercising his right of pre-emption which exists in his favour outside the transaction of sale and only arises subsequent to and after a valid sale has been carried through. This view of the law was not accepted in the Lahore High Court.