ANWAR SHEIKH & ANR. Vs. HIRA & ANR.

JUDGEMENT

(1.) This is second appeal by plaintiffs arising out of a suit for pre-emption of the property described in the plaint. The property in suit was sold by Hira to Salah Khan respondent No. I by a sale deed dated 28th Chet 1998. The suit for pre-emption was brought by Anwar and his sister Mst. Began on the allegation that both of them were co-sharers and had a preferential right to purchase the property. It has been concurrently found by both the lower Courts that Mst. Began is not a co-sharer and is a stranger. The trial Court decreed the suit in favour of Anwar Sheikh alone. On appeal the lower Court dismissed the suit on the ground that Anwar Sheikh who was a co-sharer and had a preferential right to purchase the property had joined with him a stranger and he relied on a decision of the Allahabad High Court. The plaintiffs have come here in second appeal.

(2.) The only question for determination in this case is whether a plaintiff who has a right of pre-emption becomes disentitled from claiming pre-emption by associating with himself a person who had no such right in his suit.

(3.) The right of pre-emption imposes certain restrictions on the freedom of alienation and is for the benefit of the co-sharers. Its object is to avoid strangers. The restrictions which appertain to the very essence and nature of the right of pre-emption cannot be ignored, otherwise they would defeat the policy on which the right of pre-emption is based. It is a well settled principle that a stranger cannot defeat the right of a co-sharer, who has a right of pre-emption, by associating a co-sharer with himself in the purchase. This proposition is not disputed by the appellants.