K.N. Srivastava, J.
1. The facts giving rise to this appeal are as follows:
2. The plaintiff-respondent was the Lambardar Zamindar of the village where the disputed property was situated. He alleged that there was a custom in that village that when a 'riyaya' sold a house, the Zamindar got one-fourth of the sale consideration. Sri Ram, defendant No. 1, was in possession of a house as a 'riyaya'. He sold the same to the contesting defendant appellants for Rs. 12,000/- and, therefore, by virtue of the custom, referred to above, the plaintiff was entitled to recover Rs. 3.000/- from the defendants.
2A. The suit was contested by the vendees who denied the custom and stated that the plaintiff alone was not entitled to sue. Bar of limitation was also pleaded. It was further alleged that the contesting defendant-appellants were outsiders and were not bound by the custom and, as such, were not liable to pay the amount.
3. The learned Munsif decreed the suit. Being dissatisfied, the defendant filed an appeal. The appeal was also dismissed by the lower appellate court. Being dissatisfied, the defendant-appellants have filed this 'appeal.
4. The first point which was argued in this appeal was that in order to prove that a custom has the force of law, it must be reasonable and not opposed to law and as this right to recover 'zare chaharum' was unreasonable and was opposed to law, therefore, the plaintiff-respondent was not entitled to claim a decree on the basis of the same. In support of the custom, the plaintiff relied on a number of documents and oral statements. The oldest document is the 'dastoor dehi'. This custom came into force after the Transfer of Property Act was enforced and, therefore, as provided under Section 2(c) of the Transfer of Property Act, the custom in question was opposed to law and, as such, It was not binding on the parties. In this connection, reliance was placed on Sections 55(1)(g), 55(5)(b) and Section 55(5)(d) of the Transfer of Property Act. Under Section 2, the Transfer of Property Act was not to affect the provisions of any enactment not repealed, the terms or incidents of a contract or constitution of property which are consistent with the provisions of the Act and are allowed by the law to remain in force; the right and liability arising out of a legal relation constituted before the Act came into force or any relief in respect of any such right or liability and a transfer by operation of law save as provided by Section 57 of this Act. In order to see as to whether Clause (b) or Clause (c) of Section 2 of the Transfer of Property Act applied to the facts of the case, it hat to be decided as to whether the right to recover 'zare chaharum' is a custom or a contract. To my mind, it is a custom lost in antiquity and exercised as a right throughout because there was no contract between the seller and the buyer about the payment of any amount to the Zamindar out of the sale consideration. This right arose out of the custom which was mentioned in the 'Dastoor-e-Dehi' or the 'Wajibularz'. Therefore, Sub-clause (c) of Section 2 of the Transfer of Property Act applied and the Transfer of Property Act would not affect such a custom.
5. Section 55(1)(b) lays down that the seller shall produce before the buyer for his examination all documents of title relating to the property which he has in hit possession. Clause (5) of Section 55 lays down the duties and liabilities of a buyer.Section 55(5)(b) lays down that the buyer is to pay or tender the purchase money at the time of completing the sale and if there is any incumbrances, he shall retain an amount equal to the incumbrances and pay it to the person entitled to the same. The right to realise 'zare chaharum' cannot be said to be an incumbrance. Encumbrance is a liability created on the property by the owner which has to be discharged from the property. The right to realise 'zare chaharum' is not such an encumbrance. It only arises when a sale is effected and not otherwise. Therefore, it cannot be said to be an encumbrance, and, therefore, Section 55(1)(b) and Section 55(5)(b) have no application to the facts of this case.
6. In Kumar Satya Narain Singh v. Raja Satya Niranjan Chakravarti, AIR 1924 PC 5, a distinction was drawn as to what was a 'family custom' and a 'local custom'. It was held that a local custom is binding on all persons in the local area within which it prevails, and differs entirely from a family custom, binding only on member of the family as to rules of descent and so forth. In the instant case, the custom to realize 'zare chaharum' is applicable to agricultural villages where the 'riyaya' has no right to transfer his house which was in his occupation for carrying out his agricultural occupation. The notion behind such custom was that every inch of land belonged to the Zamindar and the 'riyaya' was only a licensee of the house in which he resided with no right to transfer. He was to vacate the house when he abandoned the village. In such an agricultural village, a right was given to a 'riyaya' by way of concession to transfer his house to a third person subject to his paying an amount out of the sale consideration to the Zamindar. This right to realize 'zare chaharum' was based on the legal conception that in an agricultural village, a 'riyaya' had no right in his house except that of residence.
7. In Ram Kishore Jaiswal v. Rai Bahadur B. Kavindra Narain : AIR1955All59 , a Full Bench of this Court observed as below:
'Before we deal with this question, we must point out that in our view the custom relied on is a most unreasonable custom under which the zamindar can claim not only a one-fourth share of the price of parjauti land but also a one-fourth share of the price of the building that may have been put up on the land by the parjotdar and this he is entitled to get every time the house is sold. What was the origin of this custom we do not know. It may have something to do with the levy of chauth by the Marhattas on the fall of Moghul Empire.'
8. Although this observation was made by the above Full Bench, the right to realise 'zare chaharum' was struck down not on the ground of unreasonableness but on the ground that the plaintiffs were proprietors and not entitled to realise 'zare chaharum'. To my mind, it appears that as the law then stood, before the passing of the U. P. Abolition of Zare Chaharum Act, 1951 (U. P. Act No. XXX of 1951), the law Courts did not refuse to decree such suits on the ground of unreasonableness but, on the other hand, all suits which came to law courts, the right to realise 'zare chaharum' was accepted and suits were decreed.
9. The unreasonableness of the realisation of 'zare chaharum' has, therefore, to be judged in the light of the notion of law as it then stood and not as it is today. As observed above, the 'riyaya' had no saleable interest in the house. Therefore, when such a right was given to him, it was given on the understanding that the Zamindar will receive one-fourth of the sale consideration of the house. After the agricultural 'riyaya' left the house or abandoned the village, it was the Zamindar alone who could settle that house to any other person and, therefore, this custom was definitely to the advantage of an agricultural tenant. It was possibly acknowledged because in settling the house, he had made certain investments and for this reason, this custom started and matured into, what we may call, a legal force. The right to realise 'zare chaharum' is, therefore, neither unreasonable nor opposed to law.
10. It was next argued that there is no mention in the plaint that the amount of 'zare chaharum' was to be realised from the vendee nor there was evidence to that effect. The contention of the learned counsel fop the appellants was that the defendant-appellants being outsiders and third party were not bound by the 'wajibularz'. In support of this contention, reliance was placed on a Division Bench case of this court Haji Abdul Shakoor v. Nandlal : AIR1931All552 . In this case, the suit was filed on the basis of contract and, therefore, it was held that Section 40 of the Transfer of Property Act would not apply to an application arising out of a contract. This decision is, therefore, of no help in deciding the above point.
11. As against this, there are a number of decisions in which it has been held that the vendee is also liable for the payment of 'zare chaharum'. The first decision is Dhandai Bibi v. Abdur Rahman, (1901) ILR 23 All 209. In this case, the Division Bench relied on a Full Bench decision Heera Ram v. The Hon'ble Sir Raja Deo Narain Singh, 1867 NWPHCR 63 (FB) and observed as below:
'We construe the judgment of the Full Bench as deciding that in the case of a customary right to receive haq-i-chaharum where it does not appear that the zamindar's right to a share of the purchase money is limited to a right to claim it from the vendor, the right can be enforced against the vendee also.'
12. The other decision is Kedar Nath v. Datta Prasad Singh, 20 ALJR 646 = (AIR 1922 All 370). In this case also, Heera Ram's Full Bench case was relied upon and it was observed as below:
'A different consideration might arise in the case of a right arising out of contract between the Zamindar and occupier, but if the right is based on custom, then it has been held that it is the duty of the vendee to see that haq-i-chaharum is paid to the Zamindar. The vendee cannot get rid of his liability by merely proving that he has paid the whole consideration of 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. This has been followed in a number of cases by this Court. We may only refer to the case of Dhandai Bibi v. Abdur Rahman, where it was pointed out that in the case of a customary right to receive Haq-i-charahum, where it did not appear that the zamindar's right to share of the purchase money was limited to a right to claim it from the vendor alone, the right can be enforced against the vendee also.'
13. The next case is Radhey Shiam V. Nazir Husain : AIR1941All173 . In this case also, it was held that the amount of 'zare chaharum' can be realised from the vendee as well.
14. The last case cited is Shiv Dayal alias Din Dayal v. State of Rajasthan, 1967 All LJ 270. In this case, it was observed as below:
'The matter is concluded by authority. In Kedar Nath v. Datta Prasad Singh it was held that if the right to claim zar-i-chaharum is based on custom, then it is the duty of the vendee to see that haq-i-chaharum is paid to the zamindar and the vendee cannot get rid of his liability by merely proving that he has paid the whole consideration of the vendor, for he ought to see that the one-fourth of the sale price actually goes to the Zamindar.'
15. Therefore, the trend of the authority of this court has been that the vendor as well as the vendee both are liable for the payment of the 'zare chaharum'. There it no mention in the 'Dastoor Dehi' that it could only be realised from the vendor and not the vendee.
16. In this very connection, it was also argued that when the defendant-appellants have paid the amount to the seller, the amount of 'zare chaharum' could be well realised from him specially when the seller was the 'riyaya' knowing the custom. This argument too has no force in it. It is for the vendee to see that the 'zare chaharum' amount is paid to the Zamindar. He cannot be exonerated on the ground that he had paid the amount to his vendor or that he was an outsider. There is a clear mention in the plaint that there is a custom prevalente in the village that at the time of sale, the zamindar would get one-fourth of the sale consideration. It was not necessary, in view of the authorities referred to above, to mention in the plaint that the vendee and the vendor were equally liable for the 'zare chaharum' amount nor it Was at all necessary to have proved it as a fact against the vendee when the law permitted the Zamindar to realise it from both the vendee and the vendor or any of them. In view of the above authorities, the appellants cannot take shelter behind the plea that they were outsiders and that they had no knowledge of the custom. They were purchasing the house after making enquiries and on a cursory enquiry, they could have known this custom. Therefore, this plea too has no force in it.
17. No argument was advanced on the question of the existence of this custom, Both the courts have held that from the oral and documentary evidence, it was proved to the hilt that there was a custom in the village that the zamindar will get 'zare chaharum' on sale of house by a 'riyaya'. This finding in my opinion is correct and, therefore, rightly it was not challenged in the second appeal.
18. It -was next argued that the village has been included in the Town Area and, therefore, the above customary right has been destroyed. In support of this contention, the learned counsel for the appellants relied on a Division Bench decision of this Court M. Amba Sahai v. Gopeshwar Babu Mehra : AIR1953All607 . In this case, it was held that there is a general presumption of custom as to non-transferability of sites by Riyayas in an agricultural village and the same presumption would not apply to portions of the village which have ceased to be agricultural. In that case, it had to be proved that even in that portion of the village which had become non-agricultural, the custom of non-transferability prevailed. There is evidence in this case that this custom prevails in this village and has been continued even after the village was included in the Town Area. In Sheo Shankar Das V. Ram Tahal Koeri, : AIR1927All605 it was held that the inclusion of the village in Municipal limits will not destroy the right of transferability of a house. This argument too has, therefore, no force in it.
19. In the result, the appeal fails. It is hereby dismissed with costs.