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Lalji Misir and ors. Vs. Jaggu Tiwari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.930
AppellantLalji Misir and ors.
RespondentJaggu Tiwari and anr.
Excerpt:
pre-emption - wajib-ul-arz--construction--intikal--perpetual lease--sale. - - the object clearly is to keep out strangers and to retain the property in the hands of the brotherhood:.....rent or rs. 5-14-6 on payment of a fine of rs. 1,430. the plaintiffs who are shareholders in the village claim the right to preempt this transaction relying on a custom prevailing in the village and recorded in the wajib-ul-arz of the village. the custom is i hat whenever any co-sharer transfers (intiqal) his share (hakkiat) in any mahal, he shall transfer it first to near co-sharer and after that to a remote co-sharer in his patti etc. the plaintiffs claim the right to preempt the transfer made to the defendant jaggu on the allegation that it is a transfer within the meaning of the wajlb-ul-arz. the court of first instance decreed the plaintiffs' claim but upon appeal the learned district judge reversed the decision of the court below on the ground that the transaction carried out by.....
Judgment:

1. This appeal arises out of a pre-emption suit. The defendant Hazari executed in favour of the defendant Jaggu a perpetual lease which purports to be a lease of a share; in Manga Bichhanpur, District Ghazipur, at any early rent or Rs. 5-14-6 on payment of a fine of Rs. 1,430. The plaintiffs who are shareholders in the village claim the right to preempt this transaction relying on a custom prevailing in the village and recorded in the Wajib-ul-arz of the village. The custom is I hat whenever any co-sharer transfers (intiqal) his share (hakkiat) in any mahal, he shall transfer it first to near co-sharer and after that to a remote co-sharer in his patti etc. The plaintiffs claim the right to preempt the transfer made to the defendant Jaggu on the allegation that it is a transfer within the meaning of the Wajlb-ul-arz. The Court of first instance decreed the plaintiffs' claim but upon appeal the learned District Judge reversed the decision of the Court below on the ground that the transaction carried out by the document of the 14th May, 1909, was not a transfer within the meaning of the word transfer as used in the Wajib-ul-arz. In his judgment he says the oral evidence shown, 'that they (i.e., the parties) intended to effect a sale but for fear of pre-emption they changed their minds and effected the transfer by a lease. This is not sufficient to change what is a lease into a sale,' and, later on, they, the parties, were within their rights, if they adopted this device to defeat the claim of the pre-emptor. The decision of the learned District Judge is impugned in this second appeal and we have to determine whether or not the so-called lease of 14th May 1909, is a transfer (intqial) by the defendant Hazari of his interest in the village to the defendant Jaggu. The word intiqal is, it is to be noted, a word of very wide signification and covers all kinds of transfers, See Jagdam Sahai v. Mahahir Prasad 28 A. 60 : 2 A.L.J. 482 : A.W.N. (1905) 190. The lease purports to create a perpetual interest reserving merely a nominal rent and was granted by Hazari in consideration of the payment of the substantial fine of Rs. 1,436. There can be little doubt that this transaction was entered into with a view to defeat the rights of preemptors and that the transaction was in reality a sale. A similar question came up for decision before a Bench of this Court in the case of Ahmed Ali Khan v. Ahmed (1866) N.W.P.H.C.R. 101. That was also a suit for pre-emption. A usufructuary lease was executed by co-sharers in a village for a term of 8 years with a provision that the lessees should remain in possession during its term and on its expiration should surrender the lauds making no demand for the money advanced by them to the lessors etc. The plaintiffs claimed a right to pre-empt this transaction relying upon the provision of the Wajib-ul-arz of the village to the effect that in all cases of transfer by sale etc., the co-sharers would have a preferential right to the same, It was held by Spankie and Turnbull, JJ., that the co-sharers were entitled by right of pre-emption to take over the usufructuary lease. In the course of their judgment the learned Judges observe: 'We do not think it necessary to determine here whether this transaction be, strictly speaking, a mortgage or not. The terms of the administration paper are that in eases of transfer by 'sale etc.' a preferential claim may he raised,' and later on they observe: 'In our opinion we should rather regard the object, for which prohibitions against transfer are made in the administration papers of village communities. The object clearly is to keep out strangers and to retain the property in the hands of the brotherhood: a transfer of proprietary right for a term of 8 years to a stranger may be as mischievous to the brotherhood as a mortgage for the same or a longer term. In this point of view an usufructuary lease for 8 years is as much a transfer, as a mortgage for the same term; and if the condition of the administration paper includes all transfers permanent and temporary which we hold it to do, then co-sharers have a preferential right over a stranger.' The principle of this ruling applies to this case. In fact the case before us is a stronger case, inasmuch as here the possession of the property is given over to a stranger in perpetuity subject to the payment of a merely nominal rent. For these reasons we are of opinion that the Court of first instance was right in the conclusion at which it arrived. We, therefore, set aside the decree of the lower appellate Court and restore the decree of the Court of first instance with costs of this appeal and also the costs of the lower appellate Court. We extend the time for payment of the price for three months from this date.


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