ASHRAF BIBI Vs. MOHAMMED ABDUL RAOOF

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The plaintiff Mt. Ashraf Bibi is the own sister of the vendor Ali Ahmad. The defendant-vendees are the own uncles of Ali Ahmad, that is, his father's brothers. The case is governed by the Agra Pre-emption Act and it is obvious that the plaintiff as well as the vendees are descendants from a common ancestor of the vendor and are within four degrees. The Courts below have dismissed the suit. The learned Munsif held that Section 12, Sub-Clause (3) which gives preference in cases of near relationship applied only to the case of rival pre-emptors. The lower appellate Court is also of the same opinion. It has further expressed the opinion that, inasmuch as a sister is a sharer, whereas uncles are only residuaries, the sister is a nearer heir.

(2.) The language of Section 12, Sub-Clause (3) is certainly ambiguous but it has been held by this Court in two reported cases. Jagrup Singh V/s. Indrasan Pande and Ishwar Dat V/s. Mahesh Dat , that the expression "claiming pre-emption" is not confined to suits by rival claimants but is applicable to a vendee who puts forward his equal right of pre-emption. While following these cases we noticed that this may involve a different interpretation of the word "claiming" in Section 13: vide S.A. 586 of 1925. decided on 26 March 1926. It must therefore be held that the preference is not confined to rival suits only.

(3.) Under the Mahomedan law the sister is a sharer and the uncles are residuaries, but if the vendor were to die all these three persons would be the immediate heirs and would succeed to definite portions of the estate. For purposes of calculating the shares, classes of sharers and residuaries have been constituted. But when all succeed simultaneously it is impossible to hold that the sister is a nearer heir than the uncles. Daughters and sisters are in the list of sharers, and yet they can hardly be said to be nearer heirs than sons and brothers respectively, who are not sharers but only residuaries. The word "nearer" apparently has been used to denote persons who would succeed immediately as against a person who would succeed if those other heirs also were dead. For instance, a nearer Hindu collateral would be a nearer heir than a more remote collateral. And among Mahomedans, sons and daughters would be nearer heirs than brothers and sisters. We are therefore unable to hold that the plaintiff is a nearer heir.