1927 (3) TMI 8 - Other - Indian Laws

Summary

Issues:
1. Pre-emption claim in a village share against a buyer from the assignee in bankruptcy of another co-sharer.
2. Reversal of the Subordinate Judge's decree by the High Court.
3. Custom of pre-emption among co-sharers.
4. Validity of pre-emption against a purchaser from an Official Assignee in bankruptcy.

Analysis:

1. The case involved a pre-emption claim in a village share by a co-sharer against a buyer from the assignee in bankruptcy of another co-sharer. The Subordinate Judge initially decreed the claim, but the High Court of Allahabad reversed the judgment and dismissed the case on appeal. Another similar suit by a different co-sharer was also mentioned in the judgment.

2. The circumstances revolved around a co-sharer who was declared insolvent, leading to the sale of his property, including the shares in question, by the Official Assignee. The property was sold privately after an unsuccessful public auction, with the appellant claiming a customary right of pre-emption among the co-sharers.

3. The Subordinate Judge found the custom of pre-emption proved based on the entry in the wajib-ul-arz of the village. However, the High Court did not delve into the proof of the custom but decided in favor of the respondents assuming the custom was proved. The respondents contested the sufficiency of the wajib-ul-arz entry as evidence of the custom.

4. The judgment discussed previous cases where the weight given to entries in wajib-ul-arz was emphasized. The Board held that the entry in the present case was a record of a custom, thereby establishing the custom of pre-emption among co-sharers. The High Court's decision regarding the inapplicability of pre-emption against a sale by an Official Assignee in bankruptcy was criticized for overlooking the fundamental principles of bankruptcy property realization and distribution.

5. The judgment concluded by recommending that the appeal be allowed, the Subordinate Judge's judgment be restored, and the appellant be awarded costs before the Board and in the Courts below.