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Hazari Lal Vs. Durga Parshad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.114
AppellantHazari Lal
RespondentDurga Parshad
Excerpt:
pre-emption - wajib-ul-arz--construction--contract or custom. - .....the words contained in the particular wajib-ul-arz which was considered in the case of tassadduk husain khan v. ali husain khan a.w.n. (1908) 120 : 5 a.l.j. 740, and that as in that case the words there used were held to indicate the making of a contract only amongst the cd-sharers and' not the keeping alive of a pre-existing custom, we should in this case construe the wajib-ul-arz before us in the same way. now the wajib-ul-arz, referred to in the case of tassidduk husain khan v. ali husain khan a.w.n. (1908) 120 : 5 a.l.j. 740, does differ in one material respect from the wajib-ul-arz before us. between the words 'rawaj' and 'shufa' there comes in the important word 'haq:' to that decision one of us was a party, and it was pointed out that every question of the kind, must be governed.....
Judgment:

1. The solitary question before us for consideration in this Letters Patent Appeal is whether or not the Wajib-ul-arz rightly. construed records a pre-existing custom of pre-emption. The Court of first instance decreed the claim for, pre-emption as brought. The Subordinate Judge reversed that decree. In dealing with the question before us, which was also before him, he says that the finding on this issue depends on the construction of the pre-emptive clause in the Wajib-ul-arz of the previous settlement and if that clause contain a record of the custom of pre-emption, the plaintiff is certainly entitled to claim the property in dispute by right of pre-emption, but plaintiff can have no such right if the said pre-emptive clause contains simply a covenant for pre-emption as that Covenant came to an end oh the expiration of the previous settlement and was not renewed in the dastur dehi of the present settlement.' In appeal the learned Judge of this Court took into consideration the words of the Wajib-ul-arz which are as follows: 'Ainda jari rakhna rawaj shufa ka hamko manzur hai.' He interpreted these words as amounting to a record of the existence of a custom of pre-emption which the co-sharers wished they would continue. We agree with the interpretation thus put upon the Wajib-ul-arz. It has been contended before us that the words contained in the Wajib-ul-arz do not in reality differ from the words contained in the particular Wajib-ul-arz which was considered in the case Of Tassadduk Husain Khan v. Ali Husain Khan A.W.N. (1908) 120 : 5 A.L.J. 740, and that as in that case the Words there used were held to indicate the making of a contract only amongst the CD-sharers and' not the keeping alive of a pre-existing custom, we should in this case construe the Wajib-ul-arz before us in the same way. Now the Wajib-ul-arz, referred to in the case of Tassidduk Husain Khan v. Ali Husain Khan A.W.N. (1908) 120 : 5 A.L.J. 740, does differ in one material respect from the Wajib-ul-arz before us. Between the words 'rawaj' and 'shufa' there comes in the important word 'haq:' To that decision one of us was a party, and it was pointed out that every question of the kind, must be governed by the language which is to be found in the documents under which rights of the kind arise and the case law rarely is of much assistance to the Court in determining such questions. This has been repeatedly laid down. In the present case we are concerned merely with the language of the Wajib-ul-arz before us. We have no doubt as to what the meaning of this Wajib-ul-arz if, namely, that there was a pre-existing custom of pre-emption and that the persons who dictated that Wajib-ul-arz did intend that that pre-existing custom of pre-emption should continue. We accordingly dismiss this appeal with costs.


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