Bhim Shah and Another vs Ude Ram Shah and Another

Sulaiman, Ag. C.J.

This is a plaintiffs'' appeal arising out of a suit for preemption in Kumaun. It is not suggested that by any notification the Local Government has extended the provisions of the Agra Pre-emption Act to the scheduled districts in Kumaun. The Pre-emption Act accordingly does not apply.

The case depends on the custom prevailing in Kumaun. Mr. Stowell in the Manual of Land Tenures of the Kumaun Division at p. 46 has stated the custom in the following words:

A relative of the vendor within the third degree has a right of pre-emption against any purchaser who is an unrelated or a mere distantly related cosharer.

It is obvious that that record does not give preference to relatives within the third degree inter se; a relative within the third degree has a right against a purchaser who is either unrelated to the vendor or is related more distantly than the third degree. It does not mean that if both the plaintiff and the vendee are within the third degree the plaintiff would have preference if he is a nearer relation. On p. 27 there is the record of the same custom in different words. That too does not indicate that there is any right of pre-emption inter se if both the plaintiff and the vendee are within the third degree.

On p. 47 Mr. Stowell has pointed out that the third degree of relationship is to be ascertained by counting back to the common ancestor who is to be No. 1. The plaintiffs are the step-brothers of the vendor and the vendees are descended from the same grandfather as the vendor. They are therefore within the third degree. There being no preference inter se the suit was rightly dismissed by the lower appellate Court. The appeal is accordingly dismissed with costs.