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Muhammad Ahsan-ullah and ors. Vs. Shams-un-nissa Bibi and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in24Ind.Cas.425
AppellantMuhammad Ahsan-ullah and ors.
RespondentShams-un-nissa Bibi and anr.
Cases ReferredMuhammad Salim v. Sadur
Excerpt:
pre-emption - claim based on custom, contract or muhammadan law in alternative--custom or agreement not established--suit can succeed on muhammadan law if formalities performed. - - if the wajib-ul-arz truly records the agreement between the co-sharers, it would hold good at least until the next revision of records. it has been argued on behalf of the appellant that the plaintiff having set up a custom of pre-emption and at the same time claimed under the muhammadan law, her suit must fail :and reliance was placed on the case of muhammad salim v......of records. even, however, if we assume that there was no right of pre-emption based either on custom or agreement, we see no reason to differ from the view taken by the court below that the plaintiff had a right under the muhammadan law and duly performed the formalities required by that law. it has been argued on behalf of the appellant that the plaintiff having set up a custom of pre-emption and at the same time claimed under the muhammadan law, her suit must fail : and reliance was placed on the case of muhammad salim v. sadur-ud-din beg 7 ind. cas. 263 : 7 a.l.j. 660. we have already stated that in our opinion the reasonable construction of the plaint in the present case is an alternative claim. the law allows the plaintiff to put his claim in the alternative. the only principle.....
Judgment:

1. This appeal arises out of a suit for pre-emption. The plaintiff in the plaint alleged that under the wajib-ul-arz there was a right to pre-empt. There was also a reference made to the ordinary Muhammadan Law of pre-emption. In our opinion the reasonable and fair interpretation of the plaint was that the plaintiff based her claim alternatively under custom, contract or Muhammadan Law. An extract from the wajib-ul-arz of 1881 was adduced in evidence. If the entry in this document can be accepted as establishing the existence of a custom of pre-emption the plaintiff would be entitled to succeed. If this document could not be accepted as establishing the existence of a custom of pre-emption, it certainly was evidence of an agreement or arrangement between the co-sharers that during the period of the settlement a right of pre-emption should be recognised and enforced between them. The Court below, finding that there was no reference to pre-emption in an earlier wajib-ul-arz, and also that in the year 1840 the village belonged to a single proprietor, held that the existence of a custom was not established. For some reason, not very-clear, the Court was also of opinion that there was no contract. It went on to consider whether or not the plaintiff had a right under the Muhammadan Law and had duly performed the formalities thereby required. On this latter question the Court has found in favour of the plaintiff.

2. If we accept the finding of the Court below that the existence of a custom was not established, and were it necessary to do so, we should be disposed to hold that the plaintiff was entitled to succeed on the basis of the agreement evidenced by the extract from the wajib-ul-arz. It seems to us that if it was not a record of an existing custom, it must be looked upon as the record of an agreement or arrangement between the co-sharers, and prima facie at least binding upon them. It must be noted that in the present case the mahal is permanently settled. If the wajib-ul-arz truly records the agreement between the co-sharers, it would hold good at least until the next revision of records. Even, however, if we assume that there was no right of pre-emption based either on custom or agreement, we see no reason to differ from the view taken by the Court below that the plaintiff had a right under the Muhammadan Law and duly performed the formalities required by that law. It has been argued on behalf of the appellant that the plaintiff having set up a custom of pre-emption and at the same time claimed under the Muhammadan Law, her suit must fail : and reliance was placed on the case of Muhammad Salim v. Sadur-ud-din Beg 7 Ind. Cas. 263 : 7 A.L.J. 660. We have already stated that in our opinion the reasonable construction of the plaint in the present case is an alternative claim. The law allows the plaintiff to put his claim in the alternative. The only principle of law decided in the case cited is the principle that where in a mahal it is proved that a custom of pre-emption exists, then the Muhammadan Law of pre-emption cannot prevail at the same time. So that where there is an established custom and the plaintiff pre-emptor fails to bring himself within that established custom, he cannot fall hack on Muhammadan Law.

3. The only other point taken was that the Court below was wrong in the award of costs. In our opinion the plaintiff's case substantially succeeded and we see no, reason to vary the decree of the Court below in this respect.

4. The objections filed on behalf of the respondents cannot be pressed.

5. The result is that we dismiss the appeal with costs including in this Court fees on the higher scale. The objections are also dismissed with costs including fees on the higher scale.


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