SITARAM BHAURAO DESHMUKH Vs. JIAUL HASAN SIRAJUL KHAN

JUDGEMENT

(1.) In this case several points have been referred to in the course of the argument which, if they arose, would be of great importance; but in the view their Lordships take, these points do not arise, and they therefore find themselves in a position to intimate at once the advice which they will tender to His Majesty.

(2.) The suit in which the question arises was brought by the original plaintiff, who was the father of the present respondent, as administrator, to recover from the appellants a quarter undivided share in two villages, on the ground that the original plaintiff was entitled to a right of pre-emption in regard to them under Mahomedan law. The question is whether the original plaintiff had such a right of pre-emption. The case was heard before the Additional Subordinate Judge at Thana, and it went to the High Court at Bombay on appeal. It came before the Additional Subordinate Judge and before the High Court on various interlocutory points, but finally a decision was given on the issue defined by the Subordinate Judge, and that decision was affirmed by the High Court on somewhat different grounds, which are sufficient in their Lordships opinion, to dispose of the merits of the case.

(3.) The original plaintiff, who is now dead, was in the middle of October. 1908, entitled, as a co-sharer with his nephew, to the two villages. The original plaintiff had an undivided three- fourths share, and the nephew had the remaining undivided quarter. On October 14, 1908, the nephew sold to the present appellants, who are Hindus. The document is called by the parties a deed of agreement of sale, and it states that (he nephew being the owner of the fourth share in the two villages, certain persons, including the appellants, have agreed to purchase the same for Rs. 29,999, Rs. 1000 paid down, and the remainder payable in two quick instalments, and that there was to be a "pukka" deed of sale, which it was obviously contemplated would be registered. Then they say this, which is important: "you" (that is, the nephew) "should also give us a copy of the notice which you have to-day given to the owner of the three-fourths share, and a receipt of the notice which he will receive on the day of the said deed." And a little further on: "If the owner of the three-fourths share is willing to purchase your said share, and if you and he agree to purchase, you should immediately return to us the rupees which you have received from us."