KISHAN Vs. RAM SAHAI

JUDGEMENT

(1.) THIS appeal arises out of a suit brought to enforce a right of pre-emption in reference to certain zemindari. On the 14th of May 1906 the original vendor sold the property to the defendant Ram Chander. On the 1st of August 1906 Ram Chander executed a sale-deed of the same property in favour of Kishun Lal for a sum of Rs. 3,500 of which the sum of Rs. 1,500 purported to have been paid in cash while a bond for Rs. 2,000 for the balance was given. The present suit was instituted on the 12th of November 1906. The village at the time of the sale was divided into two thoks. The plaintiffs were co-sharers in both thoks. Ram Chander, the original vendee, was an entire stronger. The vendee of the second sale, Kishan Lal, was a co-sharer in the thok other than that in which the pre-emptive property is situate. The Court of first instance gave a decree to the plaintiffs conditional on the payment of Rs. 2,836-15-0. On appeal the plaintiffs right to pre-empt was upheld and the actual sale-consideration was held to be Rs. 8,000. The decree in favor of the plaintiffs was conditional on payment of that sum. A plea was raised by the plaintiffs that the second sale of the 1st of August 1906 in favor of Kishan Lal was a fraudulent transaction but neither of the Courts below has gone into that question. On second appeal two points are raised. It is urged first that the plaintiffs are not entitled to pre-empt even under the terms of the wajib-ul-arz. Next, it is urged that the plaintiffs must pay Rs. 3,500 the amount paid by Kishan Lal to Ram Chander and the plaintiffs are not entitled to take the property on payment of Rs. 3,000 only. The wajib-ul-arz runs as follows: Each individual co- sharer has a right to transfer his property by sale or mortgage; but while transferring it, he will offer it first to his brother and near co-sharer and in case of refusal he will ask the other co-sharer, and if he too refuses to take the property, then he will sell or mortgage it to a stranger." It is contended that the words "his brother and near co-sharer" clearly indicate that the first co-sharer who is entitled to take property must be a blood relation of the vendor. "Hissadar karibi", it is urged, refers to nearness in relationship and not to nearness in space. The lower Courts have held that as the village is divided into thoks the words "hissadar karibi" naturally mean nearness in space. It is urged that at the time this wajib-ul- arz was drawn up in 1867 this village consisted of one mohal without any sub- division what so ever and in this respect our attention was called to the wajib-ul- arz of the village. On a close examination of that document we find that although there had been no perfect partition of the village yet as a matter of fact, the co- sharers had privately divided the village into certain pattis and actually paid revenue to the Government in certain specific shares. THIS private partition is actually set forth in the wajib-ul-arz itself. In these circumstances, in our opinion, the construction placed by the lower Court on the wajib-ul-arz appears to be a reasonable and correct construction and in this instance the words "Hissadar karibi" relate to nearness in space and not to nearness in relationship. In respect of the sale consideration, taking it for granted that the second sale by Ram Chander to Kishan Lal was a bona fide sale for Rs. 3,500 the plaintiffs are still entitled to take the property on payment of the sum of Rs. 3,000 only, namely, the price paid at the time of the first sale which they seek to pre-empt. The principle which was applied in the case of Kamta Prasad v. Mohan Bhagat 6 A.L.J. 966 applies equally to the present case. At the time Kishan Lal purchased from Ram Chander the plaintiffs had a subsisting right to take this property on payment of Rs. 3,000 only and Kishan Lal must be deemed to have known of that right and to have taken the property subject to that right to be exercised within the time allowed by law. We dismiss the appeal with costs including in this Court fees on the higher scale.