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Musammat Kamer-un-nissa Bibi Vs. Musammat Sughra Bibi and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All60; 40Ind.Cas.427
AppellantMusammat Kamer-un-nissa Bibi
RespondentMusammat Sughra Bibi and ors.
Excerpt:
custom, meaning of - pre-emption--single proprietor, acquiring entire village, effect of--custom, whether continues to exist. - .....that there could be a, custom of pre-emption in existence when the property belonged to, a single individual, the lower appellate court seems to have thought that it was merely the right to exercise the power that was in abeyance. we do not think that this view can be accepted. 'custom' means a practice prevailing amongst a certain community. if that community has been reduced to a single individual, it is impossible that the practice can any longer exist. it seems to us equally clear that once the property had come into the ownership of a single individual, that individual was entitled to dispose of his property to any one he pleased without its being subject to any right of pre-emption (unless the sale was made expressly subject to such right). we have already decided this same.....
Judgment:

1. This appeal is connected with Second Appeals No. 140 and No 141 of 1916. They were all disposed of by one judgment. All three appeals arise out of preemption suits. The plaintiff in each case came into Court seeking to pre-empt certain property and relying both upon alleged village custom and Muhammadan Law. The Court of First Instance in each case dismissed the suit. The Lower Appellate Court reversed the decree of the Court of First Instance. That Court has held that there is an existing custom of pre-emption under which the plaintiff is entitled to get possession of the property upon payment of the price found to have been paid by the defendant vendee. The Court below, having decided that the custom of pre-emption existed, felt it unnecessary to consider whether the formalities required by Muhammadan Law had been complied with. We may assume for the purposes of the present appeal that some time prior to the year 1881 there was a custom of pre-emption prevailing which was recorded in the wajib-ul-arz of 1840. We find, however, that some time prior to 1881 (and in the year 1881) the mahal was the property of a single proprietor. It seems to us quite impossible that there could be a, custom of pre-emption in existence when the property belonged to, a single individual, The Lower Appellate Court seems to have thought that it was merely the right to exercise the power that was in abeyance. We do not think that this view can be accepted. 'Custom' means a practice prevailing amongst a certain community. If that community has been reduced to a single individual, it is impossible that the practice can any longer exist. It seems to us equally clear that once the property had come into the ownership of a single individual, that individual was entitled to dispose of his property to any one he pleased without its being subject to any right of pre-emption (unless the sale was made expressly subject to such right). We have already decided this same question in another case. See First Appeal No. 302 of 1910, decided on the 22nd of March 1912 Powell v. Powell. In our opinion the Court below was wrong in holding that ft custom of pre emption existed at the time of the sale in question. No doubt a custom might grow up again in the course of time, but there is no evidence to justify any such finding in the present case and this is not the finding ,)f the Court below. Nor can it be said that a contract between the co-sharers has been proved, In 1881 (when the latest record of pre-emption was made) the property was, as already stated, in the hands of a single proprietor. The fact that there is such a record appearing in the wajib-ul-arz of a mahal in the hands of a single proprietor is another instance that the entry in the wajib-ul-arz is not always trustworthy. Before finally deciding the appeal we must refer the second issue to the Court below, namely, whether the formalities required by the Muhammadan Law were performed by the plaintiff pre-emptor. This issue will be deemed to be taken in all three cases and the Court will decide the issue upon the evidence already on the record. The case will be put up on return of the finding before any Bench of two Judges.


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