MAKHAN LAL Vs. JANKI PARSHAD

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption based upon a contract embodied in the wajib-ul-arz of 1283 fasli. Since that wajib-ul-arz was framed a partition of the village has taken place with the result that the plaintiff is no longer a co-sharer of the vendor in the same mahal though he holds a share in the village. The vendee is a stranger. The question is whether after partition the contract embodied in the wajib-ul-arz can be enforced. We are of opinion that the mere circumstance of a partition having taken place does not necessarily abrogate a contract entered into by the co-sharers before partition whether the contract subsists or not depends upon the terms of the particular wajib-ul-arz and the surrounding circumstances of each case. In the wajib-ul-arz in question the right of pre-emption is given to five classes of persons, namely (1) own brothers and nephews, (2) descendants from a common ancestor, (3) co-sharers in the same khewat, (4) co-sharers in the same thok, (5) co-sharers in other thoks and in the village. The first two classes of pre-emptors are persons who have the right of pre- emption independently of their being co-sharers in the village. Unless at the time of partition a fresh wajib-ul-arz was framed and anew contract was entered into, it would be unreasonable to hold that at the time of partition it was intended to take away from these classes of pre-emptors their right of pre-emption. For similar reasons it seems to us that the intention was to maintain the contract recorded in the wajib-ul-arz of 1283 fasli. The object of giving a right of pre-emption to persons of the fifth class was clearly to exclude outsiders to the village and it seems that when a partition took place the co-sharers still intended that outsiders should not be allowed to acquire a share in the village. As the vendee is an outsider and as the plaintiffs own a share in the village, though not in the same mahal they are pre-emptors of the fifth class and are entitled to pre-empt the property in question. We dismiss the appeal with costs.