Sulaiman and Kanhaiya Lal, JJ.
1. This is a plaintiffs' appeal arising out of a suit for pre-emption. The plaintiffs claim to pre-empt properties in a number of villages appended to the parent village Janar, shares in which have been transferred by defendants 2 and 3 to defendant No. 1. The sale-deed in question purports to bear the date, the 16th of August', 1919, but it was not presented for registration till the 11th of October, 1919. The plaintiffs, who are first cousins, base their claim on the custom and the conditions as entered in the wajib-ul-arz of the year 1247 Fasli. The district is a permanently settled district, and it is not disputed that that settlement has not yet expired, though in the meantime records have been revised. The plaintiffs alleged in the plaint that they had made two demands of pre-emption and in spite of those demands the defendants had not transferred the property to them. The defendant vendee denied the existence of a custom and denied that the plaintiffs had any right of pre-emption.
2. The learned Subordinate Judge has found that it is not established that there is a custom of pre-emption. He has, however, found that the condition embodied in the wajib-ul-arz is binding on the parties and can be taken advantage of by the plaintiffs. He has, however, gone on to find that it was incumbent on the plaintiffs to perform the two demands required by the Muhammadan law. Having come to the conclusion that it has not been established that the demands were made in fact, or made in accordance with the rule of the Muhammadan law, he has dismissed the suit.
3. As there has been some controversy as to the actual basis of the claim, it is necessary for us to refer to some of the paragraphs of the plaint. In paragraph 2 the plaintiffs alleged that the wajib-ul-arz prepared at the settlement of 1247 Fasli was still in force, and in paragraph 3 it was alleged that the condition relating to the pre-emption aforesaid is binding on all the co-sharers. Paragraph 4 stated that the sale-deed in question had been executed contrary to the custom and the conditions laid down in the wajib-ul-arz. Paragraph 5 referred to the demand alleged to have been made by the plaintiffs and paragraph 11 stated that on the basis of the custom of preemption obtaining in the villages in dispute and on the basis of the conditions laid down in the wajib-ul-arz and the principle of the Muhammadan law, the plaintiffs are entitled to maintain the suit.
4. The learned Subordinate Judge, after having framed an issue as to whether there was any custom of pre-emption in the disputed mauzas, framed an additional issue as to whether the plaintiffs had a right to sue for pre-emption under the terms of the wajib-ul-arz prepared in 1247 Fasli. In the course of his judgment, he has referred to the clause in the wajib-ul-arz as being still binding on the parties. Having regard to all these circumstances, we have come to the conclusion that even though the word 'contract' was not specifically alleged in the plaint, the plaintiffs did mean to base their claim both on custom and contract. The learned Subordinate Judge, as we have already remarked, came to the conclusion that the wajib-ul-arz of 1247 Fasli wag quite insufficient to establish the custom.
5. Before we discuss the terms of the wajib-ul-arz and the two grounds on which the court below has held that the record is not one of custom, it is necessary to recall the instructions. which were in force to the settlement officers at the time this wajib-ul-arz was prepared. References in detail to these circulars are to be found in the Full Bench case of Returaji Dubain v. Pahlwan Bhagat (1910) I.L.R. 33 All. 196. KNOX, J., in his judgment at pages 206 and 207, pointed out that Regulation VII of 1822 was in force at the time and in Section 9 of that Regulation it was the duty of Collectors and other officers exercising the powers of Collectors, on the occasion of making or revising settlement of the land revenue, to unite with the adjustment of the assessment and the investigation of the extent and produce of the land the object of ascertaining and recording the fullest possible information in regard to landed tenures etc. For this purpose their proceedings were to embrace the formation of as accurate a record as possible of all local usages connected iVith land tenures. He has gone on to remark that there is nothing in Regulation YII of 1822 which authorized Collectors to record contracts regarding landed tenures. It is only right to infer, in the absence of proof to the contrary, that they recorded only local usages, i.e., such usages as had the sanction of custom.
6. It is true that there is nothing in that Regulation or the circulars which were issued on the basis of that Regulation which prevented settlement officers from recording contracts which had been entered into in terse by the co-sharers; nevertheless it is to be borne in mind that the primary duty of the settlement officer was to record all local usages. We are, therefore, entitled to infer that in the absence of anything proved to the contrary, the presumption would be that the entry which was so made in the wajib-ul-arz was the entry of a local usage and not of contract among the co-sharers. The right of pre-emption in the wajib-ul-arz is contained in Clause 8 of that document which runs as follows:
Our shares are free from sale or mortgage. If in future any co-sharer wishes to transfer his share whole or in part, he will have power to do so subject to the right of pre-emption.
7. The first argument is that the entire village had been free from sale or mortgage, i.e., no sale or mortgage had ever taken place in this village, and it is, therefore, contended that no custom of pre-emption could possibly have grown up. We are unable to accept this contention. It has never been laid down that in order to prove the existence of a custom it is necessary to establish that sales or transfers had taken place prior to the establishment of that custom. It may well have been that the custom was so strong and so invariably complied with that no co-sharer had the courage of selling the property to a stranger. Their obedience to this custom, continued for a very long time, would prevent any actual sale from taking place. From the mere fact that no sale or mortgage had taken place, it cannot, therefore, follow that the custom cannot possibly exist.
8. The other argument is that in the clause in question the words ''in future'' are used. It has been laid down in a number of cases that any such words or the use of the future tense in no way negatives the existence of a custom of preemption. At the time that the wajib-ul-arz was framed, there were no less than ten co-sharers and there is nothing else in the history of this village which would indicate that it was impossible for a custom of this kind to have grown up. We are, therefore, unable to agree with the Subordinate Judge that the entry in this clause by itself indicates that it was not a record of custom. Having regard to the rules which were then in force, we are entitled to presume that in the absence of anything indicating that it was a mere contract, the record was one of custom.
9. The next question is whether, if the record was one of custom, this custom was co-extensive with the Muhammadan law or not, i.e., whether it was part of the existence of this custom that the rules of the Muhammadan law in regard to the making of the two demands were to be observed. In a case where the particulars of a custom are fully set forth and any of those particulars are contrary to or inconsistent with the Muhammadan law, it is apparent that that custom cannot be co-extensive with the Muhammadan law. Where we have the existence of a right of pre-emption without specifying how that right is to be enforced or exercised, or without laying down the full particulars of that custom, the presumption is that that right of preemption is in accordance with the rights allowed by the Muhammadan law. This view has been laid down in a number of cases of this Court, e.g. Jagdam Sahai v. Mahabir Prasad (1906) I.L.R. 28 All. 60 and Zamir Ahmad v. Abdul Razzak (1915) 13 A.L.J. 704. These cases have also been followed in subsequent cases.
10. We have, therefore, come to the conclusion that a custom of pre-emption does exist in this village and that it is part of that custom that the two demands would have to be made in order that the plaintiffs could succeed. As already noted, the plaintiffs alleged in the plaint that they had made the two demands.
11. In this view of the matter, it is wholly unnecessary to consider if the record was one of contract, whether that contract is enforceable now and whether it can be taken advantage of by the plaintiffs.
12. The main question of fact to be considered then is whether the two demands alleged in the plaint to have been made were performed in fact, and whether their performance was in strict accordance with the Muhammadan law. We have already remarked that the learned Subordinate Judge has disbelieved the oral evidence of the plaintiffs on this point.
[Their Lordships then discussed the evidence and held that the plaintiffs had failed to prove that any demands had been made, and the appeal must fail.]