LIAKAT HUSAIN Vs. RASHID-UD-DIN

JUDGEMENT

(1.) The member of the family of Sheikh Nazir-ud-din were the co-sharers in a six pie share in patti Nanku Singh, mauza Gauhari. In the years 1903 and 1904 they sold their shares to the defendant, Abdul Hamid, in seven different sale transactions. These sales were carried out by seven sale-deeds. To two of these sale-deeds alone were the defendants respondents, Rashid-ud-din and Mukhtar Ahmad, parties. These co-plaintiffs owned shares in the patti which were not conveyed by them to Abdul Hamid, and they continued to hold these shares. The suit out of which this appeal has arisen was instituted on the 24 of September 1904, by the plaintiff appellant, Liakat Husain, who is also a co-sharer in the village, to pre-empt the sales so carried out in favour of Abdul Hamid who was a stranger to the coparcenary body. Before, however, the suit was instituted, namely, on the 16 of September 1904, Abdul Hamid sold and conveyed all the property he had so purchased to the defendants Respondents. The alleged in his plaint that this sale to the defendants respondents, Rashid-ud-din and Mukhtar Ahmad, was fictitious, collusive and without consideration, and was made in order to defeat plaintiff's right of pre-emption.

(2.) The Court of first instance decreed the plaintiff's claim, but upon appeal the learned District Judge reversed the decision of the Court below and dismissed the plaintiff's suit. The lower appellate Court agreeing with the Court below found that the evidence failed to show that the sale carried out in favour of the defendants respondents was not genuine.

(3.) The only question for determination by us is whether the defendants respondents by joining in the sale of the shares comprised in two of the sale deeds to which they were parties thereby precluded themselves from purchasing the property from Abdul Hamid. The argument advanced on behalf of the plaintiff appellant is that Rashid-ud-din and Mukhtar Ahmad having concurred in a sale in favour of Abdul Hamid, a stranger, forfeited their right to pre-empt that sale and in fact could not enter into competition with the plaintiff in the matter of pre- emption. As regards the shares comprised in the five sale-deeds to which Rashid- ud-din and Mukhtar Ahmad wore no parties, it is clear that they did not forfeit their right of pre-emption: they stand on the same footing, as regards pre- emption, as the plaintiff. This is admitted by the learned advocate for the plaintiff.