MD MOTTAKI CHOUDHURY Vs. MTSHAMSUNNESSA KHATUN CHOUDHURANI

JUDGEMENT

(1.) This is an appeal by-defendants 1 to 3 against the, judgment and decree of the first Court of the subordinate Judge, Sylhet, dated 15 April 1937, where by the subordinate Judge has decreed a suit for pre-emption instituted by the plaintiff respondent on 17 September 1936. The findings of the trial Judge which are not assailed before us by the appellants in this appeal are these: (1) There is a big estate in the district of Sylhet known as Singcha-pair. Plaintiff, defendants 1 and 2, one Md. Yunus Choudhury and certain other persons were the owners of this estate. (2) Defendants 1 and 2 sold their shares in this estate to defendant 3, a stranger, on 25 October 1935, by a kobala (Ex. A) for a consideration of Rs. 7000. Defendants 1 and 2 registered this kobala on 31 October 1935, and 3 November 1935, respectively. (3) Plaintiff came to know of this sale on 10 November 1935 and performed the Talab-i- Mowasibat on the same day and the Talab-i-Ishad on the next day as required by Muslim law (i) On 16 May 1936, Md. Yunus Chaudhury sold his share in the estate to defendant 3 by a kobala (Ex. B).

(2.) The dispute in this appeal is as to the plaintiff's right of pre-emption in respect of the share in the estate purchased by defendant 3 from defendants 1 and 2 on 25 October 1935. Two points were urged by Dr. Pal on behalf of the appellants in this appeal: (1) That the subject-matter of pre-emption cannot be a share in a large estate. (2) That in view of the events that have happened in this ease the plaintiff lost his right of pre-emption on the date of the institution of the suit and also on the date of the decree of the trial Court. No authority was cited on behalf of the appellant in support of the contention that share in a large estate cannot be a subject-matter of pre-emption under the Muslim law. The decision of the Judicial Committee in Jadu Lal Sahu V/s. Maharani Janki Koer ( 12) 39 I a 101 is against this contention. I, therefore, overrule the first contention.

(3.) Under the Muslim law, cosharers are entitled to pre-empt if the purchaser is a stranger. In this case however the purchaser, between the dates of the pre-emption sale and the institution of the suit, purchased the interest of another cosharer in this estate. The question is whether on account of this second purchase by defendant 3, plaintiff's right of pre-emption has been lost. Dr. Pal appearing on behalf of the appellants placed much reliance upon the decision of the Judicial Committee in Hans Nath V/s. Ragho Prosad Singh . The ratio decidendi of that case is that a change; in the status or position of the parties between the dates of the pre-emption sale and of the decree of the primary Court in which a suit for pre-emption is instituted affects the rights of the parties. In other words, the crucial date is the date on which the decree of the trial Court is made. In that case, the purchaser after the institution of the preemption suit acquired by gift a share in the village from another cosharer. When a stranger acquires a share by gift from one cosharer the other cosharers have no right of pre-emption. The purchaser in that case therefore acquired an indefeasible right to the share obtained by him on the basis of the gift. On these facts, their Lordships of the Judicial Committee observed as follows: It is stated by Sir John Edge, in delivering the judgment of the Board in Digambar Singh V/s. Ahmad. Said Khan ( 14) 1 AIR 1914 PC 11 at p. 18, that in all oases the object (of a custom of pre-emption) is as far as is possible to prevent strangers to a village from becoming sharers in the village. If this object would not be attained by a decree in favour of the plaintiff-pre-emptor, it may not unreasonably be held that such a decree should not be passed. In the present case, it is not now contested that the respondent (the purchaser) was at the time when the appellants (plaintiff s) suits stood for adjudication a cosharer in the villages, and a decree which might have been passed in their favour could deprive him of his status as such. If the acquisition by him of a share after the preemption sale but before the suit was instituted would be effective to defeat the appellants claim, as it is admitted that it would, their Lordships think it difficult to see why the same reasoning should not be applicable in the case of a share acquired at any time before the adjudication of the suit.