AFZAL HUSAIN Vs. HURAN BIBI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The widow of Abdul Karim acting for herself and as guardian of her minor daughter sold a half- share in 10 bighas 19 biswas zamindari property belonging to her deceased husband ostensibly for a sum of Rs. 1,250. It appears that previously the widow had applied to the District Judge for permission to sell the share of her minor daughter and that permission was refused. The present plaintiff filed this suit for pre-emption and alleged that the widow had no power to sell more than one- eighth share which the plaintiff stated was owned by her. In para. 11 of the plaint it was specifically mentioned that the sale in respect of more than one-eighth share was unlawful. Then in para. 13, the plaintiff offered to pre-empt that portion of the property sold which the Court held was valid according to law and added that if the sale of the whole half-share was found to be valid he was prepared to pre-empt the whole. In para. 16 he offered to pay any price which the Court may determine. The relief claimed was for possession by pre-emption of the property detailed or any portion thereof as the Court may think proper. On a perusal of the plaint we are of opinion that the learned District Judge is quite right in holding that the plaintiff had put forward two alternative cases. In the trial Court he alleged that the sale of any share in excess of one-eighth was invalid and offered to pre- empt the whole only if the Court found that the sale of the whole property was valid. We further agree with the learned District Judge that this way of putting the case in the alternative was not fatal to the plaintiff's suit for preemption because he had also expressed his readiness to pay the whole price and to pre-empt the whole property.

(2.) It would not be proper to decide in this case the exact extent of the share owned by the widow or her right to transfer the property. In the absence of any specific allegation of fraud the plaintiff is not entitled to put the widow to the proof of her title. He should step into the shoes of the vendee and must take the same risk as the latter has taken, and pay the same price.

(3.) The Court of first instance however, decreed the claim for pre-emption of one- fourth of the half-share of the property sold on payment of the proportionate amount of Rs. 292-8-0, having found that the consideration was really Rs. 1,170 and not Rs. 1,250.