1. This appeal arises out of a suit to enforce a right of pre-emption in respect to a sale of shares in Seminar. The claim was based on custom. The evidence to prove the custom produced by the plaintiff, consists of an extract from the village wajib-ul-arz of 1833 and the whole of that for 1860.
2. Both the lower Courts have held that this evidence does not establish the alleged custom and have dismissed the suit. They hold that these two documents are records of contracts between the co-sharers and do not relate the existence of a custom. The sole ground of appeal is that this evidence has been misconstrued and that upon a proper construction they are clear evidence of the custom alleged. It is the old question of contract or custom. I have been led by the parties through what I may fitly describe as a bewildering maze of conflicting decisions.
3. The extract of the wajib-ul-arz for 1833 contains the preamble to that document and the clause relating to pre-emption. In the preamble the co-sharers set forth that the village is their ancestral property, that they desire to record the wajib-ul-arz and that after fully understanding the conditions stated therein they gladly accept them as binding on themselves. The claim relating to preemption is headed 'Mode of sale of transfer.' It then sets forth that if a co-sharer wishes to transfer his share he must first, of all inform the other co-sharers in the village.
4. The document (be it custom or contract which it embodies) merely gives the co-sharers a right of pre-emption against a stranger. It does not give any co-sharer such a right as against another co-sharer.
5. The wajib-ul-arz of 1860 has a preamble differing but slightly from that of 1833. In place of the words samajh bhujh kar apne upar kabul karte hain' there are the words sharaiyat zail likhe dete hain mutabik uske kar band rahange.
6. Clause 5 relating to pre-emption is headed 'mention of the transfer of proprietary right.' It relates that it shall be necessary for the co-sharer wishing to transfer to offer the share first to a near co-sharer and then to other co-sharers before selling to a stranger.
7. It must be noted here that between the settlements there does not appear to have been any change in the constitution of the village.
8. In deciding cases of this class there are two rules which have, I think, been consistently followed in this Court.
9. The first is that laid down in Majidan Bibi v. Sheikh Hayatan A.W.N. (1897) p. 3 that in the absence of other evidence if the wajib-ul-arz did not itself show that the pre-emption clause was the embodiment of a contract, the reasonable and proper construction would be that the recital therein was one of a pre-existing custom.
10. The second is to be found in Tassaduk Husain Khan v. Ali Hussain Khan A.W.N. (1908) p. 121 : 5 A.L.J. 470 that every case must be decided on the language to be found in the documents on which the right is based.
11. Other rules may be deduced from other rulings but some appear not to have been regularly observed.
12. In Kesho Ram V. Ajudhia Nath 6 A.L.J. 9 : 1 Ind. Cas. 82, and inLetters Patent Appeals Nos. 64 of 1904 and 6 of 1908, the rule appears to have been laid down that if the pre-emptive right as evidenced by an early wajib-ul-arz was one based on contract, the entry in a subsequent one was to be read in the light of the former and be deemed to evidence a contract. This was based on the fact that there could not be a sufficient opportunity between the two for the growth of a custom. But in Parbhu Nath v. Thakur Tewari S.A. No. 367 of 1907 this was not followed, and the custom recorded in 1860 was maintained though in the preceding wajib-ul-arz a contract had been recorded. In S.A. No. 346 of 1904, the decision on which was upheld on appeal under the Letters Patent, it was ruled that where successive wajib-ul-araiz show changes in the order of priority as regards the rights of the co-sharers to preempt, there is a presumption that the right is based on contract, as a custom must be invariable.
13. But in F. A. No. 77 of 1908 where there was a change of this short, the custom was upheld though there was a difference between the documents of 1860 and 1870.
14. In S.A. No. 533 of 1907 and S.A. No. 335 of 1908 and S.A. No. 335 of 1909, it was held that variations in the wajib-ul-araiz denote contract and not custom because a custom must be invariable and not changeable.
15. Coming now to the evidence in the present case it is contended:
(1) That the language of the wajib-ul-arz of 1833 in no way denotes a contract and, under the rule set forth in Majidan Bibi v. Sheikh Hayatan A.W.N. (1897) p. 3 must be construed as evidence of custom.
(2) That in the wajib-ul-arz of 1860, the preamble cannot have been intended to denote a contract because there are matters set forth in the body of the document which could not have been the subject of con-tract as certain clauses set forth matters of either custom or at least practice. (3) That the difference between the terms tot the two documents is very slight as the later document gives a preferential right of pre-emption to only one class of co-sharer and it is quite possible for this variation to have crept in and crystallised into a custom.
16. On the other hand it is pointed out:
(1) That wajib-ul-araiz from this same district worded exactly as these are worded, have been ruled to denote contract and not custom e. g. Phallu Ram v. Sheo Harakh S.A. 810 of 1903 (which I myself decided as District Judge of Gorakhpur on appeal); Dhuran Rai v. Tahal Bai L.P.A. No. 64 of 1905; Mahmud Khan v. Ilahee Baksh; Letters Patent Appeal No. 61 of 1908. In the latter case also there was a variation of the order of precedence among the co-sharers as stated in the two wajib-ul-araiz.
(2) That the directions, issued by Government to Settlement Officers in 1858 page 76 para. 167, show that agreements as to the right of preemption were ordered to be recorded. Attention is, of course, directed to those cases in which it has been ruled that variations in the various wajib-ul-araiz raise the pre-sumption of contract.
17. The two documents now in evidence must be read together. I cannot take each one separately and shut my eyes to the existence of the other.
18. In neither do we find any mention of the word custom.' In both we find language showing that at the time of settlement there was some agreement between the co-sharers. It might have been possibly an agreement to abide by old existing customs, but the documents do not show this.
19. In addition to this there is the variation between the two documents as to the manner in which the pre-emptive right is to be exercised, which is, in my opinion, inconsistent with the existence of a custom. A custom, to which the force of law has to be given by the Courts, is one which must be certain and not liable to change.
20. All these are indications of contract and not of custom and in this opinion I am supported by the fact that in other cases, documents similarly worded to these, have been held to denote contract and not custom. I think it would be wise to adopt the same construction now for the sake of consistency and to prevent the uncertainty which arises from conflicting decisions, even if I had doubts in my own mind on the subject, which I have not.
21. In my opinion the lower Courts have put a true construction upon these documents. There is no other evidence to show that the custom alleged has been regularly followed or exercised. No instances have been mentioned of its exercise at any time. There have been no decrees upholding the custom.
22. In the absence of any other evidence, I must hold that the custom is not proved by the documents in question.
23. I dismiss the appeal with costs.