MUHAMMAD NASIR Vs. ROSHAN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The learned Subordinate Judge has dismissed the suit on the ground that though there is a custom of pre-emption prevailing in the village the plaintiff has not the right to pre-empt as against the vendee. The plaintiff is not a co-sharer in the mahal in which the property sold Is situate. He is however a proprietor in the village. The custom of pre-emption is recorded in the wajib-ul-arz prepared about the year 1870 and is as follows: Every co-sharer has (a right) to transfer his haqiyat (property) by sale first to own brother, and then to a qaribi ekjaddi (near rightful collateral) for a price which might be current at the time. If the transferor fixes a fictitious price in order to deprive the co-sharers it will be caused to be settled by arbitrators. If no one wishes to purchase that property for the price fixed by the arbitrators, the proprietor shall be at liberty to sell it to any other co-sharer of the village or to a stranger. With the exception of mortgage by conditional sale, every person is competent to mortgage otherwise. He may mortgage to anybody he likes.

(2.) The learned Subordinate Judge has held that the person entitled to preempt must be a co-sharer with the vendor and on this ground has dismissed the suit.

(3.) In our opinion there are two points which are fatal to the appeal. In the first place the person entitled to preempt must be either an own brother or a qaribi ekjaddi (near rightful collateral). The plaintiff is admittedly not a brother of the vendor, but claims to be qaribi ekjaddi. According to the pedigree set up by him the great-great-grandfather of the plaintiff and the vendor was the common ancestor. Thus the plaintiff and the vendor are at least eight degrees apart. Under these circumstances it is a impossible to hold that he is near collateral of the vendor. In the case of Ganga Mal V/s. Ram Singh AIR 1920 All 225 a Bench of this Court held that, even in the case of Hindus, persons who were seven or eight degrees removed could not be called near relations. The present case is therefore much stronger and we find it impossible to hold that the plaintiff is a near relation of the vendor. He therefore cannot come within the category of the pre-emptors.