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Telu Ram and ors. Vs. Raja Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.722
AppellantTelu Ram and ors.
RespondentRaja Ram and anr.
Excerpt:
pre-emption - wajib-ul-arz--construction--custom or contract--presumption of custom. - - it was held by a pull bench of this court in the well-known; on the contrary the terms of that document read as a whole clearly show that not only were contracts recorded in it but also customs existing in the village. it is headed 'wajib-ul-raz',or 'dustordehi',(customs in the village). the fourth clause of the document clearly mentions customs 'relating to shamilat lands in patti and thok. ' the words i have quoted above clearly relate to all these classes of transfer and leave no room for doubt that so far as pre-emption is concerned the rules regulating it are rules enjoined by prevailing custom......of the settlement; but that clause is equally consistent with those conditions being the terms of a contract, or the rules of a custom then prevailing in the village. under these circumstances having regard to the provisions contained in the particular wajib-ul-arz in this case, it cannot be held that it does not record a custom but only records a contract. this is the only point in the cass'. the result is that i allow the appeal and setting aside the decree of the court below restore that of the court of first instance with costs in all courts. i extend the time for payment of the purchase money for a period of two months from this date.
Judgment:

Banerji, J.

1. This appeal arises out of a suit for pre-emption brought on the basis of an alleged custom recorded in the wajib-ul-arz. It was urged by the defendants that the entry in the wajib-ul-arz was the record of a contract and not of a custom. The Court of first instance held that it evidenced a custom and decreed the claim. The decree of that Court was reversed by the lower appellate Court on the finding that the wajib-ul-arz recorded a contract and not a custom.

2. The question to be determined in this appeal is whether the wajib-ul-arz records a contract or a custom. It has been repeatedly held that as regards claims for pre-emption each case must be decided on the terms of the particular wajib-ul-arz and on the circumstances of the case. Clause (6) of the wajib-ul-arz of 1867, which is the wajib-ul-arz relied upon, lays down that if, a co-sharer wishes to transfer his share he should do so first to a share-holder khewat and on his refusal to a share-holder in the village. It was held by a Pull Bench of this Court in the well-known; case of Majidan Bibi v. Sheikh Hayatan A.W.N. (1897) 3 that unless from the terms of the wajib-ul-arz it is clear that it records a, contract the: entry in it must be deemed to be the; record of; a custom. There is nothing in the wajib-ul-arz of .1867 to indicate that what was recorded in it was the record of a con, tract. On the contrary the terms of that document read as a whole clearly show that not only Were contracts recorded in it but also customs existing in the village. It is headed 'wajib-ul-raz', or 'dustordehi', (customs in the village). The fourth Clause of the document clearly mentions customs 'relating to shamilat lands in patti and thok.' In the sixth Clause which relates to pre-emption and other matters, it is stated that 'at the time of a transfer the customs mentioned above should be observed (aur hangam intakal riwaj sadar par amal dammed hoga.) 'From these words it is manifest that the document does not merely contain the record of contracts but also of customs. The learned Subordinate Judge wishes to limit the clause mentioned above to what immediately precedes it but when the whole paragraph is read it is clear that the aforesaid clause applies to everything in the paragraph that precedes it and that what was required to be done in regard to transfers was required under the custom prevailing in the village. The sixth paragraph is headed 'mention of transfers of property by means of sale, mortgage and gift.' The words I have quoted above clearly relate to all these classes of transfer and leave no room for doubt that so far as pre-emption is concerned the rules regulating it are rules enjoined by prevailing custom. It is true that in the preamble to the wajih-ul-arz it is said that the co-sharers would be bound by the conditions mentioned in the document during the term of the settlement; but that clause is equally consistent with those conditions being the terms of a contract, or the rules of a custom then prevailing in the village. Under these circumstances having regard to the provisions contained in the particular wajib-ul-arz in this case, it cannot be held that it does not record a custom but only records a contract. This is the only point in the cass'. The result is that I allow the appeal and setting aside the decree of the Court below restore that of the Court of first instance with costs in all Courts. I extend the time for payment of the purchase money for a period of two months from this date.


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