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Bachi Lal and anr. Vs. Lal Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in3Ind.Cas.819
AppellantBachi Lal and anr.
RespondentLal Chand
Excerpt:
pre-emption - wajib-ul-arz--construction--language of the wajib-ul-arz, variation in--custom or contract. - .....recorded in 1872, which came to an end with the settlement. the district judge after comparing the words contained in the wajib-ul-arz of 1833 with the terms of the wajib-ul-arz prepared at the settlement of 1872, held that the terms contained in both the wajib-ul-arzes afforded sufficient proof of a custom of pre-emption existing in the village. he accordingly set aside the decree of the court of first instance and remanded the case for further trial. in appeal before us it is contended that the learned district judge has put a wrong interpretation upon the words contained in the wajib-ul-arzes and that when the two are read together there is so much difference between their terms, that the only sound conclusion is that the wajib-ul arz of 1872 recorded a contract and not a custom. we.....
Judgment:

1. This appeal arises out of an order of remand. The matter in dispute between the parties was whether or not the custom of pre-emption prevailed in a certain village. The Court of first instance found that there was no custom in the village of the right of pre-emption and that all that existed was a contract, recorded in 1872, which came to an end with the settlement. The District Judge after comparing the words contained in the wajib-ul-arz of 1833 with the terms of the wajib-ul-arz prepared at the Settlement of 1872, held that the terms contained in both the wajib-ul-arzes afforded sufficient proof of a custom of pre-emption existing in the village. He accordingly set aside the decree of the Court of first instance and remanded the case for further trial. In appeal before us it is contended that the learned District Judge has put a wrong interpretation upon the words contained in the wajib-ul-arzes and that when the two are read together there is so much difference between their terms, that the only sound conclusion is that the wajib-ul arz of 1872 recorded a contract and not a custom. We have heard the clauses in both the wajib-ul-arzes relating to this particular question. The wajib-ul-arz of 1833 stated the broad fact that before a co-sharer in the village could sell his share, he had to offer it for a price settled upon to other co-sharers in the village; and only when they refused to take it, could the property be offered to a stranger? The wajib-ud-arz of 1872, so far as pre-emption is concerned, starts with the observation that up to the present no case of pre emption had come into Court; and continues amongst us share-holders as regards the right of pre-emption it is agreed that if a co-sharer wishes to transfer his share, his sharik karibi shall take it first, that the co-sharers in the village according to their grades, and if no co-sharer takes it, then a stranger will acquire it.' The learned Vakil for the appellant takes his stand upon the words which preface the record in the wajib-ul-drz of 1872, and also upon the fact that differences in detail have been introduced in the wajib-ul-arz of 1872 which do not exist in the record of 1833. He also referred us to the case of Tasadduq Hussain Khan v. Alli Hussain Khan A.W.N. (1908) p. 121 : 5 A.L.J. 470. The language used in the wajib-ul-arz in the case just cited is not word for word the language used in the toajib-ul-arz with which we have to deal. It is somewhat similar, but no more; and the words with which the judgment concludes are very important words which ought not to be lost sight of in dealing with cases of this nature. 'Every question of this kind must be governed by the language which is to be found in the documents under which rights of this kind arise, and the case law rarely gives much assistance to the Court in determining such questions.' So we are thrown back upon the words contained in the wajib-ul-arz relating to this particular case. Both the wajib-ul-arzes contain this in common, viz., a clear and positive intention on the part of the co-sharers in the mahal to shut the door against strangers. Another important point is that the words in the wajib-ul-arz of 1872 are nowhere in conflict with the words contained in the wajib-ul-arz of 1833. We think that the learned District Judge was right in holding that both the wajib-ul-arzes are evidence of custom; that of 1833 sets out the broad features of custom, that of 1872 fills in the details. The custom has been one uniform and certain custom from 1833 and so far as we know, up to the present day. We accordingly dismiss the appeal with costs.


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