Bombay High Court
Gokaldas Motiram Surti vs Partab Kabhai Barot on 27 June, 1916
Equivalent citations: (1916)18BOMLR693, 35IND. CAS.871, AIR 1916 BOMBAY 198
JUDGMENT Batchelor, J.
1. The house in suit belonged to one Damodar whose neighbour on the North was the 1st defendant and on the South the plaintiff. Damodar sold the house to the Ist defendant who subsequently sold it to the 2nd defendant. The parties are Hindus of Godhra. The plaintiff brought this suit on the footing that he was entitled to pre-empt one-half of the house, and, therefore, he prayed for possession of one-half of it on payment of a sum of Rs. 462-8-0.
2. It has been held by the lower Courts that Hindus in Godhra are governed by the doctrine of pre-emption and that finding must now be accepted. The plaintiff's suit has been dismissed by the District Judge as the learned Judge was of opinion that it was not lawful for one person to pre-empt a fraction of the property in controversy.
3. Mr. Ratanlal, who appears for the plaintiff in this appeal, has urged that the learned District Judge is wrong in this view of the Mahomedan law of pre-emption, and in support of this contention has relied upon Abdullah v. Amanatullah (1899) I.L.R. 21 All. 592) which followed Amir Hasan v. Rahim Bakhsh (1897) I.L.R. 19 All. 466. It cannot, we think, be denied that these judgments are in the plaintiff's favour, nor can it, as we think, be denied that they are incapable of reconcilement with the Full Bench decision of the Calcutta High Court in Lalla Now but Lall v. Lalla Jew an Lall (1878) I.L.R. 4 Cal. 831. We have, therefore, to choose between these two authorities, and in this predicament it seems to us safer to follow the ruling which commended itself to the Calcutta Full Bench. The parties here are, as we have said, Hindus to whom the Mahomedan doctrine of pre-emption applies rather derivatively than originally. Moreover, the authorities show that in this Presidency it has not been the custom to enforce the doctrine of pre-emption to the extent allowed in Allahabad, and, as we venture to think, the enforcement of it to the extent of allowing the right of pre-emption-to be exercised in fractions would be productive not only of serious practical inconvenience but in many instances of injustice, seeing that the owner would frequently be compelled to sell his property at an under-value.
4. On these grounds it appears to us that the best course now open to us is to follow the principle adopted in Lalla Now but Lall's case and to confirm the decree of the District Judge, dismissing this appeal.
5. Costs of it will be borne by the plaintiff.