SHEOBARAN SINGH Vs. KULSUM-UN-NISSA

JUDGEMENT

(1.) In this case, pre-emption in a share in a village is claimed by a co-sharer as against the buyer from the assignee in bankruptcy of another co-sharer. The claim was decreed by the Subordinate Judge, but his judgment was reversed and the case dismissed by the High Court of Allahabad on appeal.

(2.) There was another like suit by another co-sharer.

(3.) The circumstances are these. Rai Bahadur Shri Kishan Das was a co-sharer of the plaintiff and others in the" village of Peotha Gokalpur. On September 26, 1913, he was declared insolvent by the Bombay High Court, and all his property, including the share in question was vested in the Official Assignee of Bombay. The Official Assignee put up the property for sale at Aligarh by public auction on November 8, 1914. A bid was made but was not accepted by the Official Assignee, and the sale was re-advertised for December 6, 1914. A bid of Rs. 40,000 was made by one, Sheoraj Singh, and he was declared purchaser, subject to confirmation by the Official Assignee. On the next day the auctioneer received a private offer of a greater amount. The result of the private offer was that the property was sold privately for Rs. 41,000 to a purchaser, since dead, who is represented by the respondents. The plaintiff and appellant alleges that there was in this village a customary right of pre-emption among the co-sharers, and that he is entitled to have that right made good. It was objected by the respondents that the appellant ought to have exercised his right of pre-emption by bidding at the sale. There was a good deal of discussion as to whether the right of pre-emption was always open until a concluded sale, or whether the person in right of pre- emption, if he finds the property is going to be exposed to public sale, is bound to go there and bid. It is unnecessary to consider this matter for this reason, that it appears that what was put up at the auction was not the property pure and simple, but the property plus arrears of rent all in one lot, so that the only sale of the property pure and simple was the private sale, of which, admittedly, the appellant had no notice.