John Stanley, C.J.
1. The question raised in this appeal lies in a narrow compass. The appeal arose out of a suit for pre-emption and the sole question is whether or not the record of the right of pre-emption contained in a wajib-ul-arz of the village of Deoria in the district of Gorakhpur, prepared at the Settlement of 1869, is a record of a right existing by custom or by contract. The plaintiff relies upon this wajib-ul-arz as establishing her claim, while the defendants rely also upon an earlier wajib-ul-arz of 1833, and contend that reading the two wajib-ul-arzes together, the right must be regarded as one arising out of contract. This is the view which was taken by the; two Lower Courts. In consequence of a recant decision of a Bench of this Court which is in conflict with earlier decisions, this appeal has been laid before a Full Bench.
2. The heading to the paragraph in the wajib-ul-arz of 1833 which deals with pre-emption is Mode of sale or transfer of whole or part of shares. 'The words custom of pre-emption' are not used. The paragraph runs as follows:
If any of us wishes to transfer the whole or a part of his share by sale or mortgage, he should inform the co-sharers of the village and should mortgage or sell the same to him (sic) at fixed price. If any one sells his share to a stranger without information to the co-sharers of the village, the said transfer shall be invalid.
3. In the wjib-ul-arz of 1869 the right which is recorded is different. Paragraph 14 of that wajib-ul-arz in which the right of pre-emption is stated runs as follows: 'In case of extreme or urgent necessity every co-sharer has aright to transfer his share recorded in the khewat. Near co-sharers and other pattidars will have the right of pre-emption, preference amongst them will be according to degrees of nearness.' The heading to the paragraph is 'pre emption and transfer.'
4. On behalf of the defendants-respondents, the contention is that the right recorded in this later wajib-ul-arz is at variance with the right previously existing; and this being so, the right recorded in it must be deemed to be a right arising from the contract of the parties and as such came to an end at the termination of the settlement. On the part of the plaintiff, it is contended that between the years 1833 and 1869 a custom of pre-emption may have slowly and gradually sprung into existence at variance with the right recorded in the wajib-ul-arz of 1833, and that this custom is the custom which is recorded in the later wajib-ul-arz. In the course of the argument a suggestion was thrown out, that the record contained in the wajib-ul-arz of 1833 was only a skeleton form, which omitted to give the details of the custom and that the details were supplied by the wajib-ul-arz of 1869.
5. As regards the first of these arguments, it appears to me that whatever the right was which is recorded in the earlier wajib-ul-arz, that right must be deemed to be the right which continued to prevail during the existence of the settlement of 1833. There is no evidence before us to justify us in holding that any right of pre-emption grew into existence during this period other than the one which is recorded in the wajib-ul-arz of 1833.
6. Then I come to what I may describe as the skeleton theory. It appears to me that the right recorded in the wajib-ul-arz of 1833 is very far from being a mere skeleton. It is definite, reasonable and complete; such a right as a co-parcenary body might naturally accept as ample protection against the incursion of strangers into the village. In the year 1833, there were only four co-sharers in the village, and the object of pre-emption being to keep out strangers, this object would be attained by a provision that any shareholder wishing to transfer his share should offer it first to his co-sharers before he offered it for sale to a stranger; that there should be grades of pre-emption where there are only four sharers, that is three entitled to preempt, appears to me to approach the absurd. The right recorded in the wajib-ul-arz of 1869 is a modification of the right previously recorded. According to it a share-holder wishing to sell his share must offer it first to near co-sharers, then to other co-sharers, before he could sell to a stranger. A custom to be binding must be unaltered, uniform, constant and definite. If the Settlement of 1833 recorded a custom, then it appears to me that the co-sharers in the village at the time of the later Settlement of 1869 must be deemed to have abrogated it and to have adopted by agreement the right of pre-emption which is recorded in the later wajib-ul-arz as more suitable to the then existing conditions of the village. There are ten signatories to the wajib-ul-arz of 1869 and in the preamble to the wajib-ul-arz is the statement on their part: 'We write out the following conditions and shall act up to them.' It seems to me highly probable that at the time of the settlements the co-sharers agreed among themselves as to the nature of the right of pre-emption which they desired to have recorded, and communicated their wishes to the Settlement Officer, or some subordinate official charged with the duty of collecting information for the preparation of the settlement, and consequently we have different rights recorded in the two settlements. Variance in the rights as defined in the two wajib-ul-arzes leads me to the conclusion, that the right recorded in 1869 cannot be treated as a right existing by custom. This view is consonant with a number of unreported decisions of this Court. It was urged in the course of the arguments that only rights existing by custom are recorded in wajib-ul-arzes, but this does not appear to me to have been the case. It is common experience that agreements of the co-parcenary body as well as customs are constantly recorded in wajib-ul-arzes. We should be closing our eyes to realities if we failed to recognize this. We find that in Thomason's Directions to Settlement Officers of the year 1858, Settlement Officers were enjoined to record an agreement of the community as regards the pre-emption of shares.' As to this, Regulation VII of 1822 may also be relied on (see Section 9).
7. Many cases have come before the Courts in which the sole question was whether the record of a right of pre emption in a wajib-ul-arz was a record of a custom or a contract. This question occupied the Full Bench which determined the case of Ishri Singh v. Ganga 2 A. 877, and also the attention of a Full Bench in Dalganjan Singh v. Kalka Singh 22 A. 1.
8. In addition to the wajib-ul-arz of 1869, the plaintiff relied upon a decree in a pre-emption suit. No reliance was placed upon this decree in the arguments before us. It was passed in January, 1888. If at this date, the Settlement of 1859 was in existence, this decree would be a colourless piece of evidence, as during the Settlement of 1869 a right of pre-emption did exist either by contract or by custom.
9. I would dismiss the appeal.
10. Musammat Returaji Dabain instituted a suit in the Court of the Subordinate Judge at Gorakhpur, in which she sought to enforce a right of pre emption in respect of a 5 anna 4 pie share in mahal Deoria pargana Salempur, which a certain Janki Prasad Singh, share-holder in the same mahal, sold on the 19th of April, 1907, to Pahalwan Bhagat and certain other Bhagats, residents of mahal Bairona, hereinafter styled in this judgment as 'the Bhagats.' She arrayed as defendants the Bhagats vendees and Babu Janki Prasad Singh the vendor. She based her right upon a custom of pre-emption which is described in the plaint as having of old been current in mahal Deoria. This custom, she describes in the plaint thus: 'When a share is to be transferred, the co-sharers in the mahal have a preferential right to purchase it as against strangers.'
11. It is common ground to both parties that the plaintiff is a share-holder in mahal Deoria, and that the defendants Bhagats are strangers. In support of her claim she filed and proved:
(1) Copy of a decree in case No. 302 of 1887 decided on the 25th of January, 1888, by the Munsif of Deoria.
(2) Copy of an extract from a wajib-ul-arz of 1869.
12. 'The Bhagats' defended the suit. No defence appears to have been filed by Babu Janki Prasad Singh. In the written statement filed by 'the Bhagats' they set out that the custom of pre-emption is not current in the village. They raised certain other pleas, but we are not concerned with those in this appeal. In support of their written statements 'the Bhagats' filed one solitary document, copy of an extract of the wajib-ul-arz of 1833, prepared under Regulation VII of 1822, and bearing date 29th June, 1839. When filing it, they stated that they filed it to show that the wajib-ul-arz of 1839 was in the form of a contract. (See paper No. 20, file C.)
13. The learned Subordinate Judge framed no less than five issues, but he disposed of the case upon the first of the five issues, and held that the custom of pre-emption did not exist in the village. The reason for this finding is thus given: 'The language used in the wajib-ul-arz of i83 3 clearly showed that the right of pre-emption recorded in it was founded on contract and not on custom.' He arrives at this finding because.
(1) The right recorded in the wajib-ul-arz of 1833 must have continued for the term of the settlement and consequently the entry in the wajib-ul-arz of 1869 could not be regarded as a record of custom. (In support of this view he cites an unreported ruling of this Court. Babu Jhinku Singh v. Chutkaro, S.A. No. 124 of 1907).
(2) The language of the w wajib-ul-arz of 1833 differs from the language used in the wajib-ul-arz of 1869. [See Ram Nandan v. Ram Narain S.A. No. 97 of 1907]. He dismissed the decree, that had been filed, with the remark that this solitary instance was not sufficient to establish the alleged custom.
14. The District Judge before whom the plaintiff carried her case in appeal, agreed with the Subordinate Judge, that the language used in the wajib-ul-arz of 1833 was the language of contract. He allows that if the wajib-ul-arz of 1869 stood alone, it would be construed as a record of custom, but for two reasons he holds that it cannot be anything but a contract; and the two reasons for his holding this view are the same reasons which are given by the learned Subordinate Judge.
15. The plaintiff then brought her appeal to this Court. In consequence of the decision of this Court, Hub Lal Tewari v. Ganga Sahu 7 A.L.J. 619 : 6 Ind. Cas. 151, the appeal has been placed before a Bench of three Judges, and the question which we have to consider is whether the plaintiff has or has not proved the existence of a custom of pre-emption in mahal Deoria, pargana Salempur. The question raised is a question of no small importance and, so far as I am concerned, I feel that it cannot be dismissed by a simple reference to the fact that the language contained in one wajib-ul-arz differs from the language contained in another wajib-ul-arz appertaining to the same mahal.
16. In the present case neither of the Courts below have really looked into the merits of the case put before them. They have decided the question as to whether the custom of preemption does or does not exist in mahal Deoria, (1) upon the strength of certain words contained in the wajib-ul-arz of 1833, which, it appears to me, they have misunderstood, and (2) by applying, as though it had the force of a touchstone, the question 'Is the language contained in the two wajib-ul-arzes alike or different?' The learned District Judge appears to have had some searchings of heart about the matter in his mind, for he writes that had the wajib-ul-arz of 1869 stood alone, he would have construed it as evidence of custom.
17. I propose first to deal with the criticism addressed by the Courts below to the language of the wajib-ul-arz of 1833.
18. In the first place the learned Subordinate Judge, although he appears to quote the ipsissima verba of the wajib-ul-arz, does not re-produce them accurately. The opening words of the to wajib-ul-arz of 1833 run as follows:
We, Ajudhia Dube, Beni Madho Dube, Lal Behari Dube and Kura Mal Dube, birt-holders of mauza Deoria, tappa Bairona, pargana Salempur Majhauli do declare as follows:The aforesaid village, which is our ancestral birt has been settled with us, as such, under Regulation IX of 1833, and the Regulations (Murtiba) relating to the settlement have been settled. Therefore we execute this wajib-ul-arz (village administration paper) before the Sarkar and having fully understood it, accept the following regulations as binding upon us.
19. The concluding words are: 'For this reason we have written this iqratnama (deed of ratification) that it may be of use at the proper time.' There is nothing in the preamble which corresponds to the words used by the learned Subordinate Judge 'agreed to be bound by them' and I altogether differ from him in the translation which he give3 to the word iqrarnama. It appears to me to have been too easily taken for granted in some canes that the word iqrar contains in it of necessity any idea of contracting, and that an iqrarnama of necessity contains any idea of a deed recording a contract. I have consulted various dictionaries, the well-known Qamus of Freytag, Richardson's Dictionary and others, and in none of them is the meaning 'agreement' given as one of the first meanings of the word iqrar. My view of the word iqrar, and I claim it is amply borne out by those authorities who are entitled to great weight, is that it stands for 'ratification,' 'profession.' A very common use of the word in our Courts is where it stands in the oath addressed to a witness, and again in the confession made by an accused person of some wrong done by him. The witness does not contract with Almighty God, but he professes before Almighty God, that he intends to tell the truth, etc. The accused person does not contract with any one, but he ratifies, professes, or acknowledges that he has done something. In this connection it is interesting to note that in the translation authorized by Government of the Contract Act of 1872, the word contract is never connoted by the word iqrar; this word is not to be found in any part of the Act, If we get rid of this mistaken idea of the meaning of the word iqrar and read the extract of wajib-ul-arz of 1839 naturally, it runs, so far as the question of pre-emption is concerned, thus:
10. 'Method of sale and transfer of the whole or part of a share of share-holders.--Whoever amongst us wishes to transfer by means of sale or mortgage the whole or a portion of his share, it is incumbent (lazim) on him that he give notice to his co-sharers in the village and sell or mortgage to him (sic) at the price fixed, and if any one without notice to the co-sharers of the village transfer his share to a stranger, the transaction will not be lawful,' and the ratifying clause ends thus:Therefore we have written this ratification in order that it may be useful when the time comes.
20. I have consulted the wajib-ul-arz of 1839 in the original, and I see nothing whatever in the language of it from first to last to justify the inference that it is a record of contract. As there is nothing in the language of the wajib-ul-arz of 1839 from which we must necessarily infer that it is a record of contract, it is well to look at the case as it stands between the parties. The plaintiff comes into Court upon a custom, the existence of which she claims to prove by an extract from the wajib-ul-arz of 1869, and by a decree recognising that in the year 1888, according to the fact stated in the ivajib-ul-arz for 1869, the custom did exist in mahal Deoria. There is nothing in the language of the wajib-ul-arz of 1869 which would militate against the idea that it records a custom, and it is corroborated by the decree. Against this evidence, which would be sufficient to establish the custom if it stood alone, [Cf. Majidan Bibi v. Sheikh Hyatan A.W.N. (1897) 3], the Bhagats put forward an extract from the wajib-ul-arz of 1833. Is this extract any longer of any-value as evidence to contradict and rebut the evidence contained in the wajib-ul-arz of 1869 In answer to this I hold, first that there is nothing in the language of the wajib-ul-arz of 1839 which points to the right there in recorded being a right based upon contract. It follows, therefore, the first of the reasons given by the Courts below for their finding falls to the ground.
21. The second reason given by them opens up a more difficult question and requires some consideration both of the origin of the custom of pre-emption in Hindu villages (mahal Deoria is a village of which all the co-sharers have been for a long time past and are still Hindus) and of the sanction which the law confers upon records relating to preemption contained in a wajib-ul-arz, prepared under the authority contained in Regulation VII of 1822.
22. From the copies of the wajib-ul-arz filed in this case and from copies of other wajib-ul-arzes which have been before this Court there is prima facie evidence that a usage or custom did prevail in some of the villages of pargana Salempur, whereby a co-sharer intending to effect a transfer had to give notice of the intended transfer to his co-sharers, and to sell to them in preference to a stranger at the price fixed upon for transfer.
23. In 1822 the Government in Regulation VII of 1822 expressed it as their wish and intention that in revising the existing settlement of Gorakhpur, the efforts of the Revenue officers should chiefly be directed not to any general and extensive enhancement of the jama, but to the object of equalizing the public furthers and of ascertaining, settling and recording the rights, interests, privileges and properties of all persons and classes, owning, occupying, managing or cultivating the land etc.
24. They desired also that the proceedings held and the records formed by the Collectors, when making settlement or otherwise specially employed in conducting inquiries of the above nature, should be such as that all demands, claims and suits may be adjudged and determined according to the facts therein stated, until the same shall have been formally allowed, or it shall be shown by the result of a full investigation in a regular suit that the proceedings, or record of the Collector was erroneous or incomplete. In order to carry out their wish and desire they enacted (Section 9), that it shall be the duty of Collectors and other officers, exercising the powers of Collectors, on the occasion of making or revising settlements of the land revenue, to unite with the adjustment of the assessment and the investigation of the extent and produce of the land the object of ascertaining and recording the fullest possible information in regard to landed tenures etc. For this purpose their proceedings were to embrace the formation of as accurate a record as possible of all local usages connected with land tenures etc. In prosecuting these enquiries, Collectors were given the power of summoning witnesses and examining them on oath. If any doubt exists as to the exact meaning of these words, and as to whether they embraced the enquiry into and judicial decision by Collectors on such questions as to the existence of a usage or custom of preemption, that doubt is resolved by a reference to the famous Circular No. 1, which the Board of Revenue issued on the 9th April 1839, and the Appendix No. XIII, in which a sample is given as to how a right of preemption should be entered in the wajib-ul-arz. (Four Circular Orders of the Sadar Board of Revenue, Allahabad, 1839 to 1841, reprinted Calcutta 1861, see pages 55 and 96.)
25. The intention of the Regulation was that the inquiry into these entries should be such that all suits may be adjudged and determined according to the facts therein stated until it should be shown that the proceedings or record of the Collector was erroneous or incomplete.
26. There is nothing in Regulation VII of 1822 which authorized Collectors to record contracts regarding landed tenures. It is only right to infer, in the absence of proof to the contrary, that they recorded only local usages, i.e., such usages as had the sanction of custom.
27. As has been seen above, provision was made for correction of incomplete entries of any errors that might exist. The first settlement conducted under Regulation VII of 1822 in Gorakhpur came to an end just before 1857.
28. Preparations for the next settlement, also conducted under Regulation VII of 1822, so far as pargana Salempur was concerned, were re-opened in 1859-60, and mahal Deoria, as the wajib-ul-arz shows, was settled in 1869.
29. Just before this date the Board of Revenue had issued their Circular No. 24 of 1868, dated the 9th of December 1868. This Circular had special reference to the formation of the record-of- rights. The attention of Settlement Officers was re-called to the direction to Settlement Officers, which call the attention of Settlement Officers to the fact that (i) the formation of the record-of-rights is a judicial, act (p. 21), (ii) the object of his investigation is not to create new rights, but to define those that exist (p. 46), (iii) that completeness of record can only be ensured by great vigilance on his part. The villagers are themselves reluctant to lay open to public scrutiny the internal economy of their village.
30. They are distrustful, and slow to appreciate the motives which lead to the enquiry. The strong, the crafty, and the dishonest wish to avoid a proceeding winch will tie their hands, and close every door against future encroachment and intrigue. Again, the process is a laborious one, which the persons employed in the formation of the record are apt to slur over. Each peculiarity of the tenure probably has to be elicited by repeated questions, and the expressions to be very carefully adjusted so as exactly to meet the case (p. 70) and (iv) that the record-of-rights is not to answer a temporary end, or to exhibit, as in the case of assessment, to the satisfaction of superiors, that a certain operation has been judiciously performed. The record is to be permanent, it is to be as it were the charter of rights, to which all persons, having an interest in the land, or seeking to acquire such interest, are to appeal. It is to be the common book of reference to all officers of Government in their transactions with the people, to the Collector, to the Magistrate, and above all to the Judge (p. 74).
31. In the second Chapter should be recorded under paragraph 14 the custom relating to pre-emption. They dwell upon the extreme importance to the people of a carefully prepared record-of-rights and upon the necessity of the Settlement Officer confining himself in the wajib-ul-arz to a record of the usages and customs which they find to be actually in existence.
32. Lastly, they direct that the greatest care should always be paid to the attestation of the khewat and wajib-ul-arz. The presence of all parties interested should be secured, and the papers carefully read over and explained to them, when possible, by an English officer. Each record-of-rights should bear at the foot a note by the attesting officer, showing the date and place of attestation, and the names of the parties present. This should be signed in fall by the attesting officer.
33. Such was the law and such were the instructions under which this wajib-ul-arz was prepared. It was attested on the 30th of September 1869, and the attesting officer has signed the attestation. The officer was Rai Baldeo Baksh, a Deputy Collector of eleven years' standing.
34. I have gone through this wajib-ul-arz in the original, and I can find in it none of those fancy entries which are said to exist in certain wajib-ul-arzes. It is divided into four Chapters. The first Chapter is headed 'Chapter I, an account and description of the mahal and of possession therein.' Chapter II is headed 'Haquq baqimanda bahami hissedaran'--the rights which remain in existence among the share-holders--and in the 14th paragraph of this chapter, just where we would expect to find it, comes the entry:
10. Mode of sale and transfer of the whole or part of the share of the co-sharers. If any one of us wishes to transfer the whole or part of his share by sale or mortgage, he is bound to give information to his co-sharers in the village and sell or mortgage to him for the price fixed. If any one transfers his share to a stranger without giving information to the co-sharers in the village, the transfer shall be invalid.
35. The ratification clause runs as follows: 'The persons whose signatures are given be low in a separate rubkar of to-day's date, acknowledge the accuracy of all the paragraphs of the wajib-ul-arz pattidari.'
36. Following the well-known rule Omnia proasumuntur rite et solenniter esse acta donec probetur in contrarium I hold that we have to presume regarding this entry.
(I) that the officer who framed the record of 1869 was properly appointed and duly authorized so to act.
(II) that in the formation of this record-of-rights he held a judicial enquir on the spot regarding the various matters contained therein.
(III) that in the absence of proof to the contrary credit should be given to him for having acted with honesty and discretion within the limits of his authority.
(IV) that wherein his record differs from the record of 1839, he made complete what he decided was incomplete, and corrected what he found to be incorrect in his predecessor's record.
(V) that facts without proof of which the finding as to the custom of pre-emption could not have been found and recorded were proved at the enquiry. See Rex v. Nottingham Old Water Works Coy (1837) A. & E. 355.
37. My attention has now been called to various rulings in which this Court has held that variation between the language contained in two wajib-ul-arzes drawn up under Regulation VII of 1833 is inconsistent with the existence of a custom. One such ruling is Ram, Prasad Misir and Ors. v. Babu Mahadeo Misir and Ors. 3 Ind. Cas. 640, S.A. No. 37 of 1909, decided on the 12th of August 1909; the attention of Mr. Justice Tudball, who decided this case, was not apparently drawn to the force given by Regulation VII of 1822 to records made under that Regulation. He even allows that the agreement before him may have been possibly an agreement to ahide by old existing customs, but the documents do not show this. May not the answer to this be that the documents were drawn up under the Regulation and there was no necessity to show that they recorded old customs as still existing
38. It is now time to turn to the record of the case and see what, viewed from the above standpoint, is the exact position of the contending parties. It seems to me that we are not concerned with the question how the right arose. This suit has, so far as this question is concerned, to be adjudged and determined upon evidence which bears the stamp and impress of being a careful and honest record of a custom of pre-emption. The opposite side might have produced evidence to show that the record was carelessly or dishonestly prepared or that the custom recorded has fallen into desuetude and no longer exists. Nothing of the kind has been shown. They merely produce an extract from the wajib-ul-arz of 1839, in other words, they produce the presumably incomplete or incorrect record in answer to the presumably complete and correct record. I would decree this appeal, reverse the decree of the Court below, and return the appeal, through the District Judge, to the Court below i.e., Subordinate Judge, with a direction that it be re-admitted on the file of pending suits and disposed of according to law.
39. This appeal arises out of a suit brought by the appellant for pre-emption of a share in a village on the basis of custom. The appellant relied, in proof of the custom, upon a decree obtained by another person in 1888, for pre-emption of a share in the village and upon the wajib-ul-arz of the village prepared at the Settlement of 1859-1869. The respondents, the purchasers of the share in suit, who are complete strangers to the village, denied the custom and produced an extract from the wajib-ul-arz prepared at the Settlement of 1834-1842. In this and many other cases the earlier settlement has been referred to as the Settlement of 1833, but it appears that that Settlement did not begin till 1834. The wajib-ul-arz of the earlier settlement produced in the present case was completed, if not prepared altogether in 1839. The opening clause of it contains the following words the settlement has been made according to Regulation IX of 1833, therefore, we write this wajib-ularz of our own free-will and having fully understood it, we accept the matters stated below as binding upon us 'maratib zail khushi se apne upar manzur karte hain.' The heading of the clause relating to preemption is 'Mode of sale and transfer of the whole or part of the share-holders' and the clause itself runs as follows: 'Whoever, amongst us wishes to transfer his share in whole or in part by sale or mortgage is bound to inform his co-sharers and to sell or mortgage to him (sic) at the price fixed. If any one transfers his share to a stranger without informing his co-sharers, the transfer will not be valid.' The concluding words are, 'therefore, we have written this iqrarnama that it may be of use at the proper time.' Paragraph 14 of the wajib-ul-arz of the later settlement which is in the Chapter relating to 'The remaining rights of the co-sharers' is headed, 'pre-emption and transfer by gift and the disposal of property in charity etc.,' and the relevant portion runs as follows: 'In case of urgent necessity every co-sharer has the right to transfer his share recorded in the khewat; near co-sharers and other pattidars will have the right to pre-empt the nearer being preferred to the more remote--tarjih ba lihaz madarij qarib. The Courts below have dismissed the suit. The lower appellate Court has held that the earlier wajib-ul-arz recorded a contract for, not a custom of, pre-emption; that as pre-emption depended upon contract, not custom, between 1833, and 1869, (he assumed that the earlier wajib ul-arz was prepared in 1833), there cannot have been a custom of preemption in 1869, and that if the earlier wnjib-ul-arz was a record of custom, there were differences between the customs recorded in the two wajib-ul-arzes and, therefore, that custom was uncertain and could not be enforced.
40. This appeal has been referred to a Full Bench in consequence of the many conflicting views which have been expressed regarding the proper method of construing the wajib-ul-arzes prepared at the Settlements of the Gorakhpur district made in 1834-1842, and 1859-1869. The learned Vakil for the respondents contended that a number of recent decisions of this Court have established a cursus curiace which we ought not to disturb. Decisions resting upon the construction of documents couched in different language cannot ordinarily be said to conflict with each other, but there has, I think, been a real conflict of judicial opinion in the pre-emption cases from the Gorakhpur district, notwithstanding that the language of the different wajib-ul-arzes produced has not been the same in all cases. The cases which I have been able to find fall into five distinct classes, namely, (1) those in which the wajib-ul-arz of the later settlement has been accepted as sufficient evidence of the custom therein set out, on the ground that the custom may have sprung up since the wajib-ul-arz of the earlier settlement was prepared, e.g., Gokul Ditchhit v. Maheshri Ditchhit A.W.N. (1905) 266 : 2 A.L.J. 719 and Parbhu Nath v. Thakur S.A. No. 307 of 1907, (2) cases in which the differences between the clauses relating to pre-emption in the earlier and later waajib-id-arzes have been disregarded or held to be unimportant, and the later wijib-ul-arz has been accepted as a correct record of the custom, (3) cases in which it has been held that no valid custom has been proved, either, (a) because the earlier wajib-ul-arz was a record of a contract as shown by the use of the words iqrar or iqrarnama, or other similar words which were held to indicate that the persons who signed the wajib-ul-arz had 'agreed' to what was entered in it, or (b) because there was a difference between the earlier and later wajib-ul-arzes e.g., Phallu Rarn v. Sheo Harake S.A. No. 810 of 1903; Dhuram v. Tahal L.P.A. No. 64 of 1905; Abilakh v. Bhawani Deen S.A. No. 582 of 1907; Shiam Lal v. Jadunandan S.A. No. 533 of 1907; Mahabal Rai v. Ram Bhabut S.A. No. 335 of 1908; Mohammed Khan v. Nahi Bukhsh L.P.A. No. 61 of 1908; Ram Prasad v. Mahadeo Prasad 3 Int. Cas. 640; Baldei v. Wazir Khan 5 Ind. Cas. 424; and Manraj v. Nasirullah S.A. No. 711 of 1909, (4) cases in which the Court has held that the earlier wajib-ul-arz was like the later wajib-ul-arz, the record of a custom notwithstanding the use of words indicating assent or agreement, and that the earlier-wajib-ul-arz recorded the custom in brief and general terms, while the later one set it out in greater detail, and there was no real conflict between to two, e.g., Hub Lal .v. Ganga Shahi 7 A.L.J. 619 : 6 Ind. Cas. 151, and Bahal Rai v. Sukhdeo Prasad F.A.F.O. No. 13 of 1910, and (5) cases in which one or both of the wajib-ul-arzes differed largely from those generally met with in the district, and there were special reasons for deciding for, or against, the custom set up which do not exist in the present case. In all the cases of the first four classes which I have seen, the Court had before it an extract from the wajib-ul-arz of the Settlement of 1834-1842, and an extract from the wajib-ul-aiz of the Settlement of 1859-1869; the former gave the right of pre-emption to co-sharers without more, and the latter provided for two or more grades of pre-emptors, the right being given as a rule first to near co-sharers next to co-sharers in the same thok or patti, and lastly to other co-sharers in the village. The reasons given for the decision in any of the cases in the third class are applicable to all of them, notwithstanding the difference in the language of the wajib ul-arses, with which the Court had to deal, and it is upon decisions in cases of this class, of which there have been many lately, that the learned Vakil for the respondents relied as establishing a cursus curices which should not be disturbed. It appears to me that the views expressed in them must sooner or later put an end to suits for pre-emption on the basis of custom entered in the wajib-ul-arz not only in the Grorakhpur district, bat in other districts also. In fact decisions in casses of this class have already been applied to cases from the Meerut and Aligarh districts, and probably to others also. It is a significant fact that learned Judges, when dealing with pre-emption cases from the Gorakhpur district, have almost invariably referred to decisions in other cases, though insisting that each case must be decided with reference to the particular wajib-ul-arzses before the Court. The truth is, that there are two questions which arise in all these cases, namely, the effect to be given to words indicating that the mil-guzars have assented to a wajib-ul-arz, or that they are bound by it, and the importance to be attached to differences of a well defined nature between the wajib-ul-arzes of the two settlements.
41. It seems to me that in construing a wajib-ul-arz one must have regard to the documents as a whole, and bear in mind the law and instructions, if any, under which, and the circumstances, in which the document was prepared. The present District Judge of Gorakhpur has in more than one case complained of the difficulty of construing short extracts from wajib-ul-arzes. In the present case the complete wajib-ul-arzes of both settlements are before us. The wajib-ul-arz-of the settlement which was made between 1834 and 1842 was prepared in accordance with paragraph 9 of Regulation VII of 1822, which, I may note, was not touched by the later Regulation of 1833 mentioned in the wajib-nl-arz so far as our present, purpose is concerned. The Regulation of 1822 imposed upon Settlement Officers the duty of 'uniting with the adjustment of the assessment...the object of ascertaining and recording the fullest possible information with regard to landed tenures and the rights, interests and privileges of the various classes of the agricultural community,' and their proceedings were to 'embrace the formation, of as accurate a record as possible of all local usages connected with landed tenures', and the information collected was to be so arranged and recorded as to admit immediate reference thereafter by Courts of Judicature. In the case of Lehhraj Kuar v. Mahpal Singh 5 C. 744 : 5 C.L.R. 593 : 7 I.A. 63, their Lordships o the Privy Council held that a custom relating to the mode of inheritance was a usage of the kind which the Regulation required the Settlement Officer to ascertain and record and there can be no doubt that a custom of pre-emption was also such a usage. Executive instructions were issued by the Board of Revenue from time to time. The instructions in force at the date of the preparation of wajib-ul-arz of the earlier settlement in the present case, and they are the earliest instructions which I have been able to find, are contained in the Board's Circular of 1839, which laid down that one of the records of the settlement file was to be the engagement (iqrarnama) entered into by the malguzars and co-parceners. This engagement was to show the amount of jama agreed to and to be a general record of liabilities, privileges and interests attaching to each member of the community. Among other matters, it was to show the division of the jama among the members of the community, the mode of collecting village expenses, remunerating chowkidars and putwaris, the selection of lambardars and, generally, all other municipal arrangements made at the Settlement, and the document was to be signed by the parties affected thereby in token of their assent to it. The Board disclaimed any desire to bind Settlement Officers to adopt any particular form but they give a sample form in the appendix and they said that the engagement need not be drawn out to an unreasonable length so as to exhibit in detail all the information collected. The sample form is very brief. It is described as an iqrarnama and one clause in it runs as follows: 'If any co-sharer desires to sell or pledge his share and all the co-sharers refuse to take it, he is at liberty to sell or pledge it to an outsider.' It would appear from this that the revenue authorities intended that the custom of pre-emption should be recorded in brief and general terms. Neither the Regulation nor the Circular says a word about contracts for pre-emption. On the other band, it is notorious, that a custom of preemption was very common. It will be observed that the clause relating to pre-emption in the village now in question gives the sense of the form given in the Circular and that in none of the oases from the Grorakhpur district cited during the arguments, does the extract from the wajib-ul-arz of the earlier settlement, which was put in evidence, go beyond the sample form given by the Board in 1839, though it does not appear whether all the wajib-ul-arzes were prepared after the issue of that Circular or not. In every case the record was brief. In all of them without exception the right to pre empt is given to co-sharers without more and no provision is made for competition between co-sharers. The wajib-ul-arz of 1S69 also was prepared in pursuance of Regulation VII of 1822 but in the meantime the Board of Revenue had issued fresh instructions as to the compilation of settlement files. At the time when the wajib-ul-arz of 1869 was prepared, the instructions in force were contained in the Board's Circular No. 24 of 1863. In paragraph 9 of it, they say that the wajib-ul-arz should be a record of the customs and usages prevalent in the estate. In paragraph 17, they say that it is not their intention to prescribe a form of wajib-ul-arz which is to be undeviatingly followed by all Settlement Officers, but they wish to impress on all officers the extreme importance of a carefully prepared record and the necessity of their confining themselves in the wajib-ul-arz to a record of the usages and customs which they find to be actually in existence. In conclusion they say that the greatest care should be paid to the attestation of the khewat and wajib-ul-arz. The presence of all parties was to be secured and the papers carefully read over and explained to them. These instructions show very clearly that Settlement Officers were enjoined to record customs, not contracts, in matters like pre-emption and that much more detailed information was required in 1868 than in 1839. Attached to the Circular of 1868 was a skeleton form of wajib-ul-arz, paragraph 14 of which is headed: 'The custom relating to pre-emption' and provides for several grades of pre-emptors. The history of the preparation of these wajib-ul-arzes shows that there is a strong presumption that what is entered in them regarding pre-emption is the record of a custom. We have all of us seen wajib-ul-arzes which contain provisions which ought not to be in them. In some, no doubt, language may be found which shows clearly an attempt to create a right of pre-emption. In others there is an obvious contract between the co-parceners for a right of preemption. But where the contrary is not shown, a provision in a wajib-ul-arz relating to pre-emption should be presumed to be the record of a custom and this rule has been affirmed repeatedly by this Court. In all the cases from the Gorakhpur district in which the wajib-ul-arz of the earlier settlement has been held to be evidence of a contract for pre-emption, the preamble or opening clause or the last clause has contained some such words as 'ham iqrar kurte hain,' 'ham paband rahenge,' or 'ham karband rahenge.' In the present case the words are ham maratib zail khushi se apne upar manzar karte hain. In the form given in the Board's Circular, the words are a good deal stronger; they are ba taslim sliarait zail iqrar karte hain, yet it is certain that the Board never intended that a contract of pre-emption should be recorded. The word iqrar does not necessarily mean contract. In the sample forms it means no more than declare assent. Within certain limits the exact form of words used in the opening or attestation clause is immaterial. The form was prepared by officials and the words iqrar, manzur and so forth were intended to show that the malguzars admitted that the record which they were signing was correct and binding upon them. It appears to me that to hold that words in a wajib-ul-arz indicating assent or acknowledgment by the malguzars are sufficient is show that the malguzars entered into a contract with each other regarding pre-emption is to disregard the whole history of the preparation of wajib-ul-arzes.
42. Starting with the presumption that the intention was to record an existing custom I consider that words like iqrar karte hain or manzur karte hain or paband rahenge or the like are entirely insufficient by themselves to rebut that presumption. It would have been a difficult matter to get the malguzars all over the district to agree to the creation of a new right, but easy to get them to assent to the record of a notorious and existing custom. As Aikman, J, observed in the case of Baldeo Sahai v. Nagai Ahir A.W.N. (1907) 17 : 3 A.L.J. 850, malguzars could agree to observe an existing custom as well as enter into a new contract.
43. The earlier wajib-ul-arz in the present case was signed by only four persons but this does not appear to be a sufficient reason for holding that it is a contract, not a custom, which is recorded. The construction, which has been placed in many cases upon wajib-ul-arzes of the earlier settlement, is due, I suspect, in no small degree to the fact that the whole wajib-ul-arz was not before the Court. Having carefully considered the language of the wajib-ul-arz of the earlier settlement produced in the present case, I have been unable to find anything in it which indicates that it was intended to be the record of a contract for pre-emption.
44. It must, however, be admitted that the custom is not recorded in the same language in both wajib-ul-arzes and the question is whether it should, on this account, be held that the custom is not certain. According to the decision of their Lordships in Lekraj Kuar v. Mahpal Singh 5 C. 744 : 5 C.L.R. 593 : 7 I.A. 63, the earlier wajib-ul-arz having been prepared in pursuance of Regulation VII of 1822, must be presumed to be correct so far as it goes, and the same presumption attaches to the later wajib-ul-arz. If the case rested here, I should have been disposed to hold that the later wajib-ul-arz should prevail having been prepared at a settlement made by way of revision of the previous Settlement. One of the avowed objects of the later settlements was to correct errors and make good deficiencies in the old record. The whole Settlement Record of 1839 is brief compared with that of 1869. The Board's instructions in 1839 positively discouraged the recording of elaborate details. But further it appears to me that there is not necessarily any contradiction between the two wajib-ul-arzes, with which we are concerned in the present case. The earlier gives the right of preemption to co-sharers as also does the later. It is incontestable that if the earlier wajib-ul-arz were the only record of the custom the appellant might prove by oral evidence that in case of competition between co-sharers, the nearer co-sharer was entitled to pre-empt. In fact it is always open to a person to supplement a wajib-ul-arz by oral evidence and where large interests are at stake this it commonly done. Why then should not the appellant in the present case be entitled to supplement the earlier wajib-ul-arz by the later and presumably more correct one? I entirely agree with what my brother Knox said in the case of Hub Lal v. Ganga Sahai 7 A.L.J. 619 : 6 Ind. Cas. 151 with reference to similar wajib-ul-arzes. The earlier one records the custom in brief and general terms. The later one goes more info details. It is more complete and this is exactly what one would expect. The words in the later wajib-ul-arz 'in case of urgent necessity' may be disregarded. They have no bearing upon the question of pre-emption It is notorious that the records of the earliest settlements were often found to be unsatisfactory and incomplete. Hence the necessity for the more elaborate records that were prepared afterwards.
45. In my opinion the reasons, given by the Courts below, for holding that the earlier wajib-ul-arz was the record of a contract and that the custom set up by the appellant has not been proved by the waijib-ul-arzes are insufficient. I would allow this appeal, set aside the decree of the lower appellate Court and remand the case through that Court to the first Court to be disposed of according to law.
46. The order of the. Court is that the decrees of the lower Courts be set aside and inasmuch as the suit was dismissed by both the lower Courts on a preliminary point and we have reversed their decisions upon this point, we remand the suit to the Court of first instance, through the lower appellate Court, under the provisions of Order XLI, Rule 23, of the Code of Civil Procedure, with directions to re-admit it under its original number in the file of pending suits and dispose of it according to law. Costs here and hitherto will abide the event.