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Abdul Karim Khan and anr. Vs. Qasim Ali Khan and Murad Ali Khan and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All254; 70Ind.Cas.951
AppellantAbdul Karim Khan and anr.
RespondentQasim Ali Khan and Murad Ali Khan and anr.
Excerpt:
construction of document - wajib-ul-arz--transfer by co-sharer--custom, record of. - - we are, therefore, of opinion that the plaintiffs pre-emptors have failed to prove that a custom of pre-emption prevailed in the village......the claims of both the plaintiffs half and half on the payment of rs. 289. on appeal by the vendees the decree of the first court was upheld. the vendees have come up in second appeal before us and they contend that the evidence on the record is support of the alleged custom of pre-emption is insufficient. the pre-emptors, on the other hand, contend that the wajib-ul-arz filed on their behalf and the copy of a decree in a former litigation an the occasion of a transfer of the share of a co-sharer sufficiently established the custom of pre-emption in the village. the wajib-ul-arz is of the year 1867. the paragraph upon which reliance is placed by the pre-emptors is headed by these words 'zikr intiqal haqiaat az rue rihn, hibba ya bai' i.e., the mention of transfer by sale, mortgage.....
Judgment:

1. The two Appeals Nos. 232 and 233 of 1921 arise out of two suits for pre-emption instituted in the Court of the. Munsif of Saharanpur. The sale-deed which was the basis of the two suits was executed on the 3rd December 1917 by Mansha Ram in favour of Rao Abdul Karim Khan and Abdul Rahim Khan. Qasim Ali Khan and Murad Ali Khan brought the two suits on the 2nd and 4th of December 1918, respectively, for preemption of the property sold by the defendants on the 3rd of December 1917. The allegation in the two plaints, was that the custom of pre-emption obtained in the village and that the plaintiffs were co-sharers of the vendor while the vendees, were strangers. The plaintiffs, therefore, had a preferential right to the property and claimed to get it on the payment of Rs. 400. The price given in the sale-deed was Rs. 800 but the statement of the two plaintiffs with regard to the sale consideration was that it had been inflated to defeat the right of preemption. The vendees resisted the claims of the two rival pre-emptor by the denial of the custom of pre-emption. Both parties gave evidence in the two suits. The learned Munsif held that the custom of pre-emption had been proved and that both the plaintiffs stood in equal degree and were entitled to preempt. He, therefore, decreed the claims of both the plaintiffs half and half on the payment of Rs. 289. On appeal by the vendees the decree of the First Court was upheld. The vendees have come up in second appeal before us and they contend that the evidence on the record is support of the alleged custom of pre-emption is insufficient. The pre-emptors, on the other hand, contend that the wajib-ul-arz filed on their behalf and the copy of a decree in a former litigation an the occasion of a transfer of the share of a co-sharer sufficiently established the custom of pre-emption in the village. The wajib-ul-arz is of the year 1867. The paragraph upon which reliance is placed by the pre-emptors is headed by these words 'zikr intiqal haqiaat az rue rihn, hibba ya bai' i.e., the mention of transfer by sale, mortgage or gift. After reciting that in the case of transfer by a co-sharer the own brother of the transferor, in the first instance, and, in case of refusal by him the co-sharers of the patti, and, in case of refusal by the latter, the co-sharer of the village will have the right to take the property proposed to be transferred in preference to a stranger, the wajih-ul-arz goes on to mention what would happen in case of a gift or in case where a co-sharer died childless leaving one or more widows and what rules should be observed in case of adoption by the widow of a deceased co-sharer. The language of the paragraph negatives the contention for the pre-emptors that the reference to the transfer by a co-sharer is based upon a custom obtaining in the village. There is no word in the paragraph in question which would lead one to infer that the restriction placed upon the transfer by a co-sharer was founded upon a custom of pre-emption. The decree relied upon by the plaintiffs-respondents is not of very great evidential value. It appears that upon a transfer of a share by a co-sharer to a stranger the co-sharer sued on the basis of pre-emption. The claim was not resisted by the vendees and a decree was psssed in favour of the plaintiff co-sharer. On the other hand, we have on behalf of the vendees in this case, several sale-deeds in respect of which no objection was taken by any co-sharer, though the sale-deeds were in favour of strangers. We are, therefore, of opinion that the plaintiffs pre-emptors have failed to prove that a custom of pre-emption prevailed in the village. The appeal is, therefore, allowed and the decree of the lower Court is set aside. The claim of the plaintiff-pre-emptor, Qasim All, stands dismissed. The vendees-appellants will get their costs throughout including fees in this Court on the higher sale.


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