TMI Blog1960 (7) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... wo sons Motosin Ali (pro, forma defendant No. 11), and Abdul Latif (minor plaintiff No. 2) and Kutina Bibi (plaintiff No. 1) his wife as his heirs. According to the plaintiffs out of the properties belonging to Mafiz Ali, plaintiff No. 1 inherited one-eighth share and the two sons got the remaining seven-eighth share in equal shares. While the plaintiffs were owners is possession of their shares in the property belonging to Mafiz Ali, the pro forma defendant No. 11 and the other co-sharers of the pattas who were impleaded as pro forma defendants 9 and 10, executed two Kabalas in favour of defendant No. 1 in respect of the land of Schedule attached to the plaint. In the kabalas the shares belonging to the plaintiffs were also included. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous taluks and pattas. 3. The contesting defendants alleged that the suit had been filed at the instance of Abdul Aziz who was one of the prospective buyers and that no proper demands were made by the plaintiffs. It was further alleged by the contesting defendants that the entire suit land had been sold to their vendor, that is, defendant No. 1, by defendants Nos. 9 to 11 on 20th August 1950. The plaintiffs therefore, lost any right in the property by the aforesaid sale.... The plaintiffs not being co-sharers. they were not entitled to claim any right of pre-emption. 4. The trial court framed a number of issues. The trial court observed that though in the body of the plaint the plaintiffs stated that their shares of the lands are incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim' partial pre-emption. 6. In the Assam case the further question decided was that even though there has been a partition by the co-sharers, so long as the liability to pay land revenue remained joint, it gave right to the co-sharers: in whose share the property sold had not fallen, to pre-empt on the ground that they still continued to be co-sharers. This case does not apply to the facts of the present case and in my opinion the court below was right in holding that these cases are of no assistance to the plaintiff-appellants. So long as the sale deed of 1950 subsists and has not been set aside by a proper court and in a proper proceeding, the plaintiffs cannot claim to have any interest or to be co-sharers in the property. Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gajadhar Jaipuria 1955-1 SCR 70 : AIR 1954 SC 417. In this case the suit was brought for enforcement of right of pre-emption in respect of an enclosed plot of land in the city of Banaras. The vendor and the vendee both were residents of Calcutta and the pre-emptor was a Hindu resident of the locality. He had claimed the right of pre-emption on the basis of custom. The defence taken was that the custom will be available in case the vendor and the vendee both are residents of the town. This contention was repelled by the Supreme Court on appeal. It was held that a local custom of pre-emption-attaches to all the house properties situated within it and where a right of pre-emption rests upon custom it becomes the lex loci or the law of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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