Amir Haidar and Another vs Ali Ahmad and Another

Lindsay, J.—This is a somewhat peculiar case. The suit was a suit for pre-emption and was brought by two persons, Sh. Amir Haidar and Ahmad Baza. Sh. Amir Haidar was the uncle of Ahmad Raza, who in the plaint, was described as being a minor 7 years old.

The person who sold the property was a lady named Mt. Nawis-un-nissa, who was the step sister of Sh. Amir Haidar, the first plaintiff.

The purchasers were the defendants Nos. 1 and 2.

The Court of first instance decreed preemption on payment of a sum of Rs. 650.

The lower Court has dismissed the suit entirely.

The reason why the lower Court has dismissed the suit is this. In the trial Court it was asserted by the purchasers that the negotiations for sale had taken place through the first plaintiff, Sh. Amir Haidar, who had consented to the sale both on his own behalf and on behalf of his minor nephew, Ahmad Raza.

The Subordinate Judge, who tried the suit, did not believe this evidence and held that consent was not proved and consequently he gave a decree for pre-emption. The lower Appellate Court, however, does find that the first plaintiff, Sh. Amir Haidar, did consent to the sale and consequently he had no right to maintain the suit for pre-emption.

We are bound by the finding of fact of the lower Appellate Court, but the question still remains whether, if it is taken that Amir Haidar consented to the sale, the right of the minor to pre-empt has been lost. The argument before us is that Sh. Amir Haidar had no power to bind the infant by his consent. It has been pointed out that Amir Haidar was the paternal uncle of the minor and as suoh was not a guardian under the Mohammadan Law, nor is he a testamentary guardian, nor has he been appointed a guardian by the Court. In fact, so far as the Mohammadan Law is concerned, he has no status of a guardian as regards the minor Amir Haidar, and so the argument, is that the only finding being that Amir Haidar consented for himself and purported to consent on behalf of the minor, the minor cannot be bound and was entitled to a decree for pre-emption. On the other hand, it is argued that inasmuch as Amir Haidar was allowed to bring this suit for himself and as the next friend of the minor, the minor should be held bound by the act of Amir Haidar. That reasoning does not appeal to us. It seems to us that if Ahmad Raza is entitled to a right of pre-emption, as is admittedly the case, then it must be shown that something in law was done which would be a bar to Ahmad Raza seeking pre-emption in this case. The bar which is held up against him in the consent given by his uncle and if that consent is not valid in law, then we think it cannot be pleaded as a bar to Ahmad Raza''s right to have pre-emption.

We hold, therefore, that nothing is shown to stop the claim for pre-emption being enforced on behalf of the second plaintiff, the minor Ahmad Raza, and we think that he was entitled to a decree accordingly. We therefore allow this appeal, set aside the decree of the Court below and give the minor, Ahmad Raza, a decree for pre-emption on payment of Rs. 650. We allow a period of two months for payment of this sum. If the money is deposited into Court within this period then the plaintiff will be entitled to his costs here and hitherto. If the plaintiff fails to deposit the money within the time so limited then his suit will stand dismissed with costs in all Courts.