Bhagwat Prashad Tiwari and Another vs Dharamraj Rai and Others

The matter for decision in this second appeal is whether the Lower Appellate Court has put a right construction upon the terms of the Wajib-ul-arz. The Wajib-ul-arz runs as follows: "If any co-sharer wishes to sell or mortgage his share in this mahal he must do so first to karabatdaran kareebi (near relations), then to near co-sharers in the thok (hissa daran hareebi thok), then to other co-sharers of the thok (hissa daran digar thok)". As the word kareebi in the Wajib-il-arz before us is used together with the word "karabatdaran" we think that the same meaning should underlie both words. Also if we look to the probable intention of the framers of the Wajib-ul-arz, we think that their intention was that the property as far as possible should remain in members of the same family and the construction put upon the Wajib-ul-arz would harmonize with this construction. We dismiss the appeal with costs.