1. This is a defendant's second appeal. The suit was for a declaration that the plaintiffs own the site of a house which has been sold at auction in a decree against defendant 2 and has been purchased by defendant 1 and that they are entitled to receive one-fourth of the sale price as zar-i-chaharum. The suit was contested by defendant 1; it proceeded ex parte against defendant 2. The contesting defendant denied the plaintiffs' ownership of the site. He also denied the alleged custom generally and as regards auction sales in particular. The Courts below have found for the plaintiffs and have decreed the suit. The question before me is whether the right to zar-i-cha-harum is established. The learned Judge of the lower appellate Court says:
Thus there are numerous agreements on record commencing from 1873 to show that one-fourth price has always been paid to zamindars. The documentary evidence is so abundant that it is unnecessary to deal with each document. In all of them the plaintiffs have been recognized as owners of the site and one-fourth sale consideration has always been loft for them.
2. As I was left in ignorance as to what the learned Judge meant by 'abundant documents,' whether he meant five or five-hundred, I asked learned Counsel for the plaintiffs-respondents, when the appeal was first before me, how many such documents there are and he informed me that there are about a dozen documents in which the right of the zamindar to one-fourth of the purchase price was recognized. The learned Judge also finds that on two occasions, once in 1901 and again in 1903, the right of the plaintiffs' predecessor to one fourth of the money paid at auction was upheld in execution proceedings. It does not appear that the alleged custom finds place in a wajib-ul-arz, but I think that there are sufficient grounds for the finding of the Courts below that the custom of zar-i-chaharum is established. The main contest before me is as to whether it applies to auction sales. In High Court Reports, Full Bench, for the North Western Provinces for 1866, p. 63 at p. 66, it was held by this Court that where by custom the zamindar is entitled to a quarter share of the sale proceeds as his haq zamindari, he is entitled to recover it on the occasion of sales, either absolute or originally conditional but subsequently becoming absolute by foreclosure, from the vendor and the purchaser. The Court observed:
We are of opinion that the zamindar is entitled to a decree against Heera Ram, the conditional purchaser, as well as against the vendors. The zamindar's customary due is payable on the transfer by sale of house property; and this equally (after the sale has become absolute) whether the sale was in its inception conditional or not. The zamindar's right is to a share of the purchase money, it is not merely a right to claim that share from the vendor. It is therefore incumbent on the purchaser, if he would acquit himself of all liability, to see that the zamindar is satisfied in respect of his due...
3. In Utri din v. Munshi Prag Narain ('08) 11 O.C. 64 at page 05, a Bench of the Oudh Chief Court observed:
It cannot be doubted that, when a conditional sale has ripened into an absolute sale, there has been a sale within the meaning of the wajib-ul-arz.
4. It was further held in that case that unless the right of the landlord is limited by the wajib-ul-arz to a right to claim haq-i-chaharum from the vendor, the right can be enforced against the vendee also. In Raghunandan v. Krishan Dutt ('33) 20 A.I.R. 1933 Oudh. 527, it was held that a custom of a grove-holder's liability to pay haq-i-chaharum which is recorded in the fard-i-riwaj-baghat is not limited to private sales alone; it extends to a case where there has been a foreclosure as the result of a compromise between the parties to the mortgage, on the basis of which the mortgagee's claim is decreed by the Court against the mortgagor. In Manni Lal v. Gauri Shankar : AIR1938All655 , it was held by a learned Judge of this Court that a custom recorded in the wajib-ul-arz entitling the lambardar to hac-i-chaharum in the case of sales of houses is not limited to a private sale alone but extends to a case where there has been foreclosure.
5. I have not been referred to any authority relating to sales upon a simple mortgage, but I do not think that there is any difference in principle between a private sale and an auction sale, and in my opinion the plaintiffs are entitled to one-fourth of the sale price. It has been held in the first two cases to which I have already referred and also in Dhandai Bibi v. Abdur Rahman ('01) 23 All. 209 and in Kedar Nath v. Datta Prasad ('22) 9 A.I.R. 1922 All. 370, that the right to hac-i-chaharum can be enforced against the vendee. In the last named ease at p. 649 Sulaiman J. observed:.if the right is based on custom, then it has been held that it is the duty of the vendee to see that hac-i-chaharum is paid to the zamindar. The vondee cannot get rid of his liability by merely proving that he has paid the whole consideration to the vendor. He ought to see that the one-fourth of the sale price actually goes to the zamindar. If the zamindar had not had his share, a joint decree should be passed against the vendor and the vendee, leaving the matter to be decided in a subsequent suit.
6. For the reasons given above I am of opinion that the view taken by the Court below is correct. This appeal therefore fails and is dismissed. I make no order as to the costs of this appeal. Permission to appeal under the Letters Patent is refused.