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Ram Bharosa Sahu Vs. Musammat Kabutra - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All301; 50Ind.Cas.48
AppellantRam Bharosa Sahu
RespondentMusammat Kabutra
Excerpt:
pre-emption - custom, proof of--mortgage by way of conditional sale--decree absolute, whether gives rise to right of pre-emption--limitation act (ix of 1908), schedule i, article 10. - .....results. a number of cases have been cited as to what is the period of limitation for pre-emption suits. but all these cases proceed on the basis that the right of pre-emption had accrued on a particular date and the question was whether on that assumption article 10 or article 120 applied. it is quite clear that if a right of pre-emption accrues on a particular date and if the case cannot be brought within the provisions of article 10, then article 120 must apply. we do not think that any of these cases are applicable to the present case, once it is decided that the custom proved in the present case was not a custom which entitled the pre-emptor to pre-emption upon the making of the decree absolute. in our opinion if the custom proved were sufficiently wide to include a.....
Judgment:

1. This appeal arises out of a suit for pre-emption. It appears that the property was mortgaged as far back as the year 1907. The particular form of mortgage adopted was what is called a mortgage by conditional sale. No suit we then instituted to assert any right of pre-emption. A foreclosure decree was obtained in 1912, which was made absolute on the 7th of June 1913. Again no attempt was made to assert any right of pre-emption. The property was then transferred to the appellant on the 1st of April 1914 and the present suit was not instituted until the 26th of June 1915, that is, more than a year after (he transfer in favour of the defendant vendee was registered. If pre-emption was sought by virtue of this last mentioned deed of transfer, it is quite clear that it was barred under Article 10 of the Limitation Act as being brought more than one year after the registration of the sale-deed. The plaintiff, however, based her cause of action on the making of the decree absolute in the foreclosure suit, and then by applying Article 120 of the Limitation Act attempted to show that the suit was filed within time. The contending defendant pleaded that there was no custom, that the custom did not apply to transfers by way of mortgage and that the suit was barred by limitation.

2. We think that the first point to be considered in this case is what was the custom, assuming that there was any right of pre-emption at all. The only evidence was that afforded by the entry in the wajib-ul-arz. This does not on the face of it purport to record any right on the occasion of a mortgage. We must bear in mind that the mortgage of 1907 was made long after the passing of the Transfer of Property Act in one of the recognised modes of mortgaging property. It would seem, therefore, that if there was no right of pre-emption when the mortgage was made, that right could not accrue at a later stage when the mortgagee took steps to enforce the mortgage unless a custom giving such a right was proved. In the present case there is absolutely no evidence of any such custom. The learned-Advocate, on behalf of the respondent, has contended that in all cases in which a custom of pre-emption on sale is proved the right of preemption can be enforced at any time within six years after a complete transfer has been carried out by means of a suit on the mortgage and sale of the property in pursuance of the mortgage-decree. If this proposition were correct, it would certainly lead to astounding results. A number of cases have been cited as to what is the period of limitation for pre-emption suits. But all these cases proceed on the basis that the right of pre-emption had accrued on a particular date and the question was whether on that assumption Article 10 or Article 120 applied. It is quite clear that if a right of pre-emption accrues on a particular date and if the case cannot be brought within the provisions of Article 10, then Article 120 must apply. We do not think that any of these cases are applicable to the present case, once it is decided that the custom proved in the present case was not a custom which entitled the pre-emptor to pre-emption upon the making of the decree absolute. In our opinion if the custom proved were sufficiently wide to include a mortgage, then the plaintiff's cause of action arose when that mortgage was made and the year of limitation would run from the date of the registration of the mortgage. If on the other hand the custom is not sufficiently wide to include a mortgage, then it seems to us that no right of pre-emption arose by reason of the fact that the mortgagee obtained a decree absolute upon that mortgage. For these reasons we allow the appeal, set aside the decrees of both the Courts below and dismiss the plaintiff's suit with costs in all Courts.


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