ALKHU RAI Vs. LACHHMAN UPADHIYA

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for pre-emption. A mortgage by conditional sale was executed in the year 1861, but no suit for preemption was brought then. Recently a suit for foreclosure was instituted and after the preliminary decree for foreclosure the decree was made absolute on the 12 of April, 1919. On the 15 of September, 1920, the present suit was instituted on the ground that the defendant, who was originally the mortgagee and in whose favour the mortgage had since been foreclosed, was a stranger to the mahal. Reliance was placed on behalf of the plaintiffs mainly on an extract from the wajib- ul-arz which contained a clause to the effect : "In the mahal if any one of the co- sharers would wish to make a mortgage by conditional sale or an absolute sale he would do so, on the same price as the price offered by others, to pattiwala karibi, next to other hissedar patti, and when they would not take, to his hissedar karibi who may be in the other patti, and if they too would not take, to hissedar mahal and then to a stranger."

(2.) On behalf of the defendant it was, However, pleaded inter alia that he was a co-sharer in the same mahal and patti in which the property sought to be pre- empted was situated; the existence of the custom was also denied and it was further alleged that there was no custom of a right of pre-emption on the foreclosure of a mortgage by conditional sale.

(3.) The court of first instance came to the conclusion that in view of the decree absolute for foreclosure the plaintiffs had no right to pre-empt. It further expressed the opinion that the defendant too had a share in the same patti and mahal in which the property was situated and that therefore no question of preference inter se arose.