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Budh Singh Vs. Gopal Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All544
AppellantBudh Singh
RespondentGopal Rai and ors.
Excerpt:
pre-emption - wajib-ul-arz--construction of document--custom or contract. - - a strong argument may be based upon the language used in support of the view that it is a record of custom. 'we are, however, not disposed to set aside the decree of the court below unless we are clearly satisfied that it is erroneous......that right still continues to exist in the village. if, on the other hand, it is the record of a right existing by contract, then that right came to an end at the expiration of the settlement, and if it did come to an end at the expiration of the settlement, the language of the later wajib-ul-arz of 1890 would not perpetuate it. in the wajib-ul-arz of 1867 the names of the residents of the village, who are described as the khewatdars, are mentioned, and they purport to declare that 'they agree that up to the term of the settlement and in future to the termination of the next settlement they will abide by the following terms and act upon them.' then follows a number of provisions, and amongst others the following provisions as to pre-emption: 'if any co-sharer wishes to transfer his.....
Judgment:

John Stanley, C.J. and Karamat Husain, J.

1. This appeal arises out of a suit to enforce a claim for pre-emption. The property which is the subject of a sale lies in a mahal of the village Gumti in pargana Sultanpur, in the Saharanpur district, which village was partitioned in the year 1905. The plaintiff relies upon the wajib-ul-arz of the village prepared in the year 1867 and upon an alleged adoption of the provisions of that wajib-ul-arz in the later wajib-ul-arz of 1890. The question before us appears to depend upon the fact whether or not the wajib-ul-arz of 1867 is the record of a right of pre-emption existing by custom. If it be such a record, we are disposed to think upon the authorities that that right still continues to exist in the village. If, on the other hand, it is the record of a right existing by contract, then that right came to an end at the expiration of the settlement, and if it did come to an end at the expiration of the settlement, the language of the later wajib-ul-arz of 1890 would not perpetuate it. In the wajib-ul-arz of 1867 the names of the residents of the village, who are described as the khewatdars, are mentioned, and they purport to declare that 'they agree that up to the term of the settlement and in future to the termination of the next settlement they will abide by the following terms and act upon them.' Then follows a number of provisions, and amongst others the following provisions as to pre-emption: 'If any co-sharer wishes to transfer his share, he can do so, first to his own brother; and in case of refusal by him, all his co-, sharers, descended from a common ancestor, have a right to it,' Now the pre-emptor Budh Singh is a paternal uncle of the vendor, and is also a co-sharer in the village, but he is not a co-sharer in the mahal portion of which is the subject of the sale. If, however, the right to pre-empt, recorded in this wajib-ul-arz is a right existing by custom, then it would appear to us that the pre-emptor plaintiff appellant is entitled to pre-empt notwithstanding the fact that he has no share in the mahal portion of which is the subject of the sale. In the later wajib-ul-arz of 1890, a number of matters are referred to but no mention is made of any custom of pre-emption whatever, but the following words are to be found in it: 'For the remaining village customs see the wajib-ul-arz prepared in 1867.' The plaintiff relies upon this language, and asks us to hold that it imports into this wajib-ul-arz the provision as regards pre-emption set forth in the wajib-ul-arz of 1867. It would not be unreasonable to hold that the parties intended by this language to incorporate the provisions of the earlier wajib-ul-arz as regards the custom set forth in that document. But if the right of pre-emp-tion created by it was one arising from contract and not existing by custom, it is obvious that that right would not be perpetuated by the incorporation in the later wajib-ul-arz of the customs existing in the village. The right was not a right existing by custom, but a right arising from contract. Now the question as to whether or not the wajib-ul-arz of 1867 is a record of a custom or the record of a contract is one of very great difficulty. A strong argument may be based upon the language used in support of the view that it is a record of custom. 'We are, however, not disposed to set aside the decree of the Court below unless we are clearly satisfied that it is erroneous. We do not agree with the learned Subordinate Judge in the reasons given by him for his decision, but after giving the beat consideration we can to the language of the wajib-ul-arz of 1867, we are unable to hold that it is a record of custom. This being so, the appeal fails and is dismissed with costs.


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