Rajasthan High Court - Jaipur
Udai Chand vs Mt. Bakka And Ors. on 17 October, 1951
Equivalent citations: AIR1952RAJ52
JUDGMENT Wanchoo, C.J.
1. This is an appeal by Udaichand against the decree of the District Judge of Bikaner dated 26th of May 1950 dismissing the suit brought by the plaintiff-appellant for pre-emption.
2. The suit related to the pre-emption of a house in the city of Bikaner. It belonged to one Ghewarchand Suthar. This man sold the house to Mt. Bakko wife of Senskaran Oswal. The plaintiff-appellant claimed pre-emption on the ground that his house was contiguous to the house of Ghewar Chand and opened on the same side and he was of the same community as Ghewar Chand and was therefore entitled to preempt. Pre-emption was also claimed on another ground based on Clause 7 of Section 10(1) of the Bikaner State Pre-emption Act (No. 1 of 1919) but that ground is not being urged before us in appeal. Reliance is being placed entirely on Clause 8 of Section 10 (1) of the Act.
3. The suit was opposed by Mt. Bakko. She admitted that the plaintiff's house was contiguous to that of her vendor and that the two houses opened on the same side but she denied that the plaintiff was of the same community as the vendor. She therefore, said that he could not take advantage of the eighth clause of Section 10 (1). The only question for decision, therefore, before the Court below was whether the plaintiff belonged to the same community as the vendor and that is the question which we have also gone into.
4. Before we turn to answer that question, we should like to set out the eighth clause of Section 10 (1) which reads as follows:
"The right of pre-emption shall vest eighthly where the sale is of a property contiguous to other properties in the owners of such of the latter properties as are contiguous to the property sold and open in the same direction: provided that only those bearing relationship to the vendor and failing them, those of the same community as the vendor, shall have a right of pre-emption."
The trial Court relying on a decision of the High Court of the former State of Bikaner dismissed the suit on the ground that the pre-emptor did not belong to the same community as the vendor. The contention on behalf of the appellant before us is that the pre-emptor and the vendor, in fact, belong to tbe same community because they are both Hindus. The argument is that the word "community" used in this section is a very wide word and should be given the widest application and that, therefore, every Hindu should be deemed to be a member of the same community. This view, however, was not accepted by the High Court of the former Bikaner State in an unreported case 'Rangla v. Hanumanprasad', Appeal No. 2 of 1948. In that case, the vendors were Agarwals and the pre-emptor was a Brahmin. It was held that the two did not belong to the same community. In that case, reference was also made to an earlier decision of the Judicial Committee of the former State of Bikaner, 'Bajranglal v. Gani', Appeal No. 49 which was decided on the 23rd of January 1948'. In that case, the vendor was an Agarwal and the pre-emptor Bajranglal was a Maheshwari. It was held in that case that the two belonged to the same community.
5. We have in this case to interpret the word "community". It may be mentioned that the Bikaner Act does not define the word "community" anywhere and we have, therefore, to find its meaning as best as We can by reference to dictionaries and the circumstances in which the word has been used in the particular section. In the Shorter Oxford English Dictionary, the word "community" has been given a number of meaning as below: (1) The commonalty. (2) A body of people organised into a political municipal or social unity, (3) The body of persons living together and practising community of goods. In 'Webster's New International Dictionary of the English language also, the word "community" has various meanings of which the following appear relevant for our purpose: (1) The society at large. (2) A commonwealth or state. (3) A body politic, (4) The public or peoples in general, (5) Restrictedly, the people of a particular place or region as a town, village or neighbourhood, (6) A body of people having common organisation of interest or living in the same place under the same laws and regulations as a community of monks.
6. It will appear from these meanings that in its widest sense, the word "community" will include all the members of the public in the whole country but the word also has a restricted meaning and may apply either to all persons living in a particular place, for example, a town or a village or to all persons knit together by certainties which may be political, municipal or social.
7. It seems to us that the word "community" as used in the eighth clause of Section 10 (1) has not been used in its widest but in its restricted sense. The word appears in a proviso in that clause and the proviso is meant to restrict what would otherwise have been a general right given to everyone who has property contiguous to the property sold and opening in the same direction. The restriction that has been placed in the proviso is twofold. In the first place, the right of pre-emption has been given to relations and secondly, failing the re lations, to persons of the same community. It seems to us, therefore, that the meaning to be attached to this word in the context in which it has been used should be restricted to people organised into a social unit. If that meaning is given, it is clear that persons belonging, for example to the Christian or Moslem religion will form communities by themselves. But in the case of Hindus, it seems to us that the restriction will have to go further because there are four well recognised 'Varnas' among Hindus each of which may be said to consist of a body of persons organised into a social unit further, considering that the right of pre-emption is given to the members of the same community when relations do not exist, it is dear that the restriction among Hindus must refer to these four well-defined Varnas. The judgment of the Judicial Committee of the former Bikaner State in which it was held that "Agarwals and Maheswaries belong to the same community" can be reconciled only on this principle with the later judgment of the High Court, in which it was held that a Brahmin and an Agarwal belong to two different communities. We are, therefore, of opinion that where both the pre-emptor and the vendor are Hindus, we have to restrict the meaning of the word "community" a little than in the case of say. Moslems or Christians and must take into account whether the two parties belong to the same Varna or not. Applying this principle to the present case, we find that the vendor is a suthar while the pre-
emptor is an Oswal. The two. therefore, do not belong to the same community and the trial Court was right in dismissing the suit for pre-emption. The appeal is hereby dismissed with costs to the vendees respondent.