1. This is an appeal from an order of remand passed by the learned District Judge of Cawnpore in a suit by the lambardar to recover haq chaharum from the mortgagor of a house against whom a final decree for foreclosure was passed. The custom entitling the lambardar to haq chaharum in the case of sales of houses is recorded in the wajibularz of the village in these words:
Jo makan reyaya farokht ho jata hai to eh chaharum hissa zamindar ho milta hai.
2. The trial Court held that this custom governs only private or voluntary sales and not involuntary or court sales. The lower Appellate Court held otherwise. The matter is practically concluded by authority. So far back as 1867, a Pull Bench of this Court consisting of six Judges held that where by custom the zamindar is entitled to a quarter share of the sale proceeds as his haq zamindari he is entitled to recover it on the occasion of sales either absolute or originally conditional but sub-sequently becoming absolute by foreclosure : see Heera Ram v. Raja Deo Narain Singh (1867) N.W.P.H.C. 63 (F.B.). A Bench of the late Judicial Commissioner's Court in Oudh observed in Utri Din v. Munshi Prag Narain (1908) 11 O.C. 64 at p. 65 that when a conditional sale has ripened into an absolute sale there is a sale within the meaning of the wajibularz. That was a case where a mortgage by way of conditional sale had been made and subsequently a decree for foreclosure had been passed In 1933 a single Judge of the Chief Court at Oudh held in Raghunandan v. Krishna Dutt (1933) 2 A.I.R. Oudh 527 that the custom of a grove-holder's liability to pay haq-i-chaharum which is recorded in the fard-i-riwaj baghat is not limited to private sales alone, but extends to a case where there has been a foreclosure. I think there is no force in this appeal. It is therefore dismissed with costs.