Niaz Fatima vs Tamiz Begam

This appeal arises out of a suit for pre-emption. Both the plaintiff and vendee are co-sharers but the plaintiff is the own sister of the vendor while the vendee is alleged to be a more distant relative. The existence of the custom of pre-emption is admitted and there is no dispute that such a custom exists. The only question is whether or not the Courts below were justified in holding that the plaintiff has sufficiently established a preferential right by adducing the wijibul-arz. According to the wajib-ul-arz, the custom is that the property must first be offered to bhai bhatiji hakiki, that is to say, own brothers and nephews. The parties are Muhmmadans. The Courts have considered that a sister should be included in the expression "bhai." We are unable to say that this decision was wrong under the circumstances of the present case. We, therefore, dismiss the appeal with costs including in this Court fees on the higher scale.