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Mahtab Ram Vs. Bhawani Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.118
AppellantMahtab Ram
RespondentBhawani Singh and ors.
Excerpt:
pre-emption - provision in the wajib-ul-arz as to price--not reasonable--custom--no dispute as to price between vendor and pre-emptor--rate given in the waiib-ul-arz not followed. - .....in the sale-deed is rs. 1,000 and no evidence was adduced to show that this was not the real price agreed to be paid. the appellant, however, relied upon the terms of the wajib-ul-arz which gives the right of preemption to persons arranged in a number of categories and then proceeds as follows: 'if there be any dispute between the vendor and the pre-emptor regarding the price being less or more, it will be settled on the basis of rs. 200 per biswa.' the pre-emption clause directs a pattidar, who wishes to sell, to offer the property to parties referred to in the several categories. in the present case, there is no dispute between the vendor and the pre-emptor in regard to the price but it is contended that the language of the wajib-ul-arz, even if there had been no dispute,.....
Judgment:

1. This appeal arises out of a suit for pre-emption. Raghunath Singh sold to the defendants Nos. 1 and 2 and to one Ram Singh the property which is the subject-matter of the suit. The plaintiff-appellant, under the terms of the wajib-ul-arz of the Village, claims pre-emption. It has been found that he is entitled to pre-empt and this right is not now in dispute. The price mentioned in the sale-deed is Rs. 1,000 and no evidence was adduced to show that this was not the real price agreed to be paid. The appellant, however, relied upon the terms of the wajib-ul-arz which gives the right of preemption to persons arranged in a number of categories and then proceeds as follows: 'If there be any dispute between the vendor and the pre-emptor regarding the price being less or more, it will be settled on the basis of Rs. 200 per biswa.' The pre-emption clause directs a pattidar, who wishes to sell, to offer the property to parties referred to in the several categories. In the present case, there is no dispute between the vendor and the pre-emptor in regard to the price but it is contended that the language of the wajib-ul-arz, even if there had been no dispute, entitles the pre-emptor to pre-empt the sale at a price lower than the price which the purchaser was willing and agreed to pay, namely, at the reduced price named in the wajib-ul-arz. Reliance has been placed upon a number or cases in support of this contention and amongst others upon the decision in Karim Bakhsh Khan v. phula Bibi 8 A. 102. In that case the wajib-ul-arz provided as in the present case that a co-sharer before selling his share to a stranger should offer it to the co-sharers; and it further provided that the price to be paid in case of a sale to a co-sharer should be calculated in proportion to the price for which a particular share had been sold in 1860, namely, Rs. 198. In the judgment of Petheram, C.J., in that case, it is pointed out that according to the true meaning of the agreement, a co-sharer was entitled to purchase at the price agreed before the property could be sold to any one else. The right of pre-emption in that case was one arising from contract and not a right existing as here be custom, and the wajib-ul-arz did not provide as here that in case of a dispute between the vendor and the pre-emptor regarding the price, it should be settled on a fixed basis. Tyrrell, J., in his judgment draws attention to this distinction and refers to the ruling in Akbar Singh v. Jualu Singh A.W.N. (1885) 216 which is a case on all fours with the case before us. Similarly in Bahadur Singh v. Ram Singh 27 A. 12, the provision of the wajib-ul-arz was similar to that in Karim Bakhsh Khan v. Phula Bibi 8 A. 102, there were not the words which are in the wajib-ul-arz before us viz., ''if there be any dispute between that vendor and pre-emptor regarding the price'. Similarly in the case of Husain Ali v. Muhammad Umer A.W.N. (1908) 98, there is no reference to the existence of a dispute as to price between the vendor and the pre-emptor. In the case before us there was no dispute between the vendor and the pre-emptor in regard to the price and, therefore, the Court below rightly held that the price agreed to was not affected by the provisions of the wajib-ul-arz. We may further point out that a custom to be binding must be reasonable. The custom set up here would not, we think, be reasonable. We, therefore, dismiss the appeal with costs including fees in this Court on the higher scale. We extend the time for payment of the price for three months from this date.


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