Alimullah vs Farzand Ali

Robert Stuart, C.J.—The judgment of the Judge is substantially right. This is really not a case where the defendant shows any exclusive right of pre-emption and where the plaintiff is a "stranger," but of competitive pre-emption, if I may be allowed the expression, the plaintiff''s claim in respect of title being quite as good as that of the defendant, while he has priority by purchase. As pointed out by the Judge, although the plaintiff did not live in the same patti as the vendor, but in another patti, he was a member of the co-parcenary, and therefore his claim u/s 14 of Act XXIII of 1861 must be allowed, and the sale to the defendant declared invalid. But the plaintiff cannot benefit by this judgment, and obtain possession, until the sale to him has been confirmed. I am therefore of opinion that, with this slight modification, the appeal should be dismissed, and with costs, the plaintiff, respondent, having substantially succeeded, and defendant treating him as a stranger and denying his right as a member of the co-parcenary.

Oldfield, J.

The plaintiff is himself a member of the co-parcenary, being a sharer in another patti of the estate. The right of pre-emption can only be asserted against a stranger, i.e., one who is not a co-sharer or member of the co-parcenary. A sharer in one of the pattis in a pattidari estate cannot be said to be a stranger with reference to the co-sharers in another patti, and the section gives no preferential rights of pre-emption among themselves between co-sharers in the same patti and sharers in other pattis, who come under the denomination of members of the co-parcenary. But the plaintiff can however, only obtain a declaration that the defendant has no right of pre-emption as against him, and that the sale to the defendant is invalid, but he cannot obtain possession until the sale has been confirmed in his favour and made absolute. He has taken no steps to effect this by moving the Court which ordered the sale to confirm it in his favour, which is the proper remedy open to him. I would modify the decree of the lower appellate Court by declaring that the defendant has no right of pre-emption as against plaintiff, and that the sale to the defendant is invalid.