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Sheo Badan Tiwari and anr. Vs. Musamat Sahibzadi Kunwar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All459
AppellantSheo Badan Tiwari and anr.
RespondentMusamat Sahibzadi Kunwar
Excerpt:
pre-emption - wajib-ul-arz--construction of document--custom or contract. - - we agree with the conclusion arrived at by the lower appellate court, and hold that the plaintiffs appellants have failed to prove their allegation of custom......and retain the share so redeemed until the original mortgagor is in a position to pay his co-sharer. wajib-ul-arzes of this kind have come up before this court1 more than once, and it has been held that the terms that we find in the present wajib-ul-arz do not go to show that they are a record of custom. a reported case on this point is that of surajbali singh v. mohammad nasir (1902) i.l.r. 24 all. 521. the wajib-ul-arz in the reported case was also in similar terms to the one before us.3. in the reported case, on interpreting the wajib-ul-arz before them, the learned judges of this court held that the entry in the wajib-ul-arz, on the very face of it, disproved the existence of the custom. the clause relied upon by the plaintiffs appellants, when read as a whole and examined.....
Judgment:

Muhammad Rafiq and Lindsay, JJ.

1. The two appeals, Nos. 1333 and 1334, are connected inasmuch as they arise out of one suit brought by the plaintiffs appellants to pre-empt certain property conveyed by Moti Saran and Musammat Sona Kunwar to the contesting defendants. The claim was resisted on the ground, among others, that the custom of pre-emption alleged in the plaint did not obtain in the village in which the property-sold was situate. In support of the alleged custom of pre-emption the plaintiffs appellants produced the wajib-ul-arz of the village. The learned Munsif accepted the recital in the wajib-ul-arz as evidence of the custom stated in the plaint and decreed the claim. On appeal by the vendees, the learned District Judge construed the clause relating to the transfer of a share by a co-sharer in the village differently. *He was of opinion that the phraseology of the clause upon which reliance was placed by the pre-emptors negatived their allegation as regards the custom of pre-emption. The appeal was, therefore, allowed and the decree of the first court was set aside and the claim of the pre-emptors was dismissed.

2. In appeal before us it is contended on behalf of the plaintiffs appellants, the pre-emptors, that the learned District Judge has not interpreted the clause of the wajib-ul-arz relating to the transfer of property by a co-sharer correctly. The clause upon which reliance is placed is to the effect that in case of a transfer by a co-sharer of his share by sale or mortgage he must give preference to his co-sharers over a stranger. It further goes on to say that in case a mortgage given by a co-sharer has matured and the mortgagor is unable for want of funds to redeem the mortgage, any of his co-sharers can pay off the mortgage and retain the share so redeemed until the original mortgagor is in a position to pay his co-sharer. Wajib-ul-arzes of this kind have come up before this Court1 more than once, and it has been held that the terms that we find in the present wajib-ul-arz do not go to show that they are a record of custom. A reported case on this point is that of Surajbali Singh v. Mohammad Nasir (1902) I.L.R. 24 All. 521. The wajib-ul-arz in the reported case was also in similar terms to the one before us.

3. In the reported case, on interpreting the wajib-ul-arz before them, the learned Judges of this Court held that the entry in the wajib-ul-arz, on the very face of it, disproved the existence of the custom. The clause relied upon by the plaintiffs appellants, when read as a whole and examined closely and carefully, goes to show that it mentions matters which the co-sharers had agreed upon and does not mention a custom. We agree with the conclusion arrived at by the lower appellate court, and hold that the plaintiffs appellants have failed to prove their allegation of custom. We, therefore, dismiss this appeal with costs.


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