HANS NATH Vs. RAGHO PRASAD SINGH

JUDGEMENT

(1.) The dispute in this appeal is as to the appellants' right to pre-emption in respect of a 2 1/2/16 share in each of two villages known as Mouza Khurma and Jungle Khurma. On 27 July 1921 the shares in question were sold by one Thakur Prasad to the respondent. It is admitted that at the date of the sale the vendor and all the appellants were cosharer in the villages, and that the respondent was not.

(2.) Two suits were instituted in the Court of the Subordinate Judge of Gorakhpur on 15 and 26 July 1922 respectively by the different appellants against the vendor and the respondent, in which the right of pre- emption by village custom was asserted. On 2 November, 1922, during the pendency of these suits the respondent acquired, ex facie by gift, from another cosharer a small independent fractional share in the villages. If this transfer had been made before suit raised, and had admittedly been by gift, it could not have been suggested that the custom alleged by the appellants applied.

(3.) On the execution of the transfer last referred to, a third suit, No. 859 of 1922, was instituted by two of the appellants, alleging that the gift was merely colourable and that the transaction was in reality a sale to the respondent, and claiming the right of pre-emption in the fraction concerned, the value of which appears to have been in the neighbourhood of Rs. 20. This suit was accordingly instituted in the Munsif's Court, but was transferred to the Court of the Subordinate Judge, and all the three amis were tried together.