1. The facts out of which this appeal arises are sufficiently stated in the referring order. The essential point for determination is whether, under a custom described in the wajib-ul-arz, the plaintiffs--appellants have or have not a right of pre-emption in respect of a foreclosure decree which was made absolute on the 12th April 1919. The said decree was passed on a mortgage by conditional sale executed in the year 1861. The record of the custom in the wajib-ul-arz is in the following terms:
If one of the co-sharers desires to make a mortgage, or a mortgage by conditional sale, or an out-and-out sale, he must do so on the same adequate price as may be offered by other parties, in the first instance to a near co-sharer in the same patti, next to other co-sharers in the patti, if they will not take, hen to a near co-sharer in another patti; next to any co-sharer in the mahal, and finally to a stranger.
2. It we were called upon to interpret these words, apart altogether from any decisions which have been pronounced or reported in other cases, I cannot say that I should feel any serious difficulty as to their meaning. I understand them to mean that a right of pre-emption is violated, and a cause of action given to the persons possessing preemptive rights in the order specified above, in the event of an ordinary mortgage in favour of a stranger, or of a mortgage by conditional sale in favour of a stranger, or of an out-and-out sale to a stranger. In each of these cases the violation of the right would occur, and the cause of action would accrue, from the date of the ordinary mortgage, the mortgage by conditional sale and the out-and-out sale respectively. I cannot read anything into the provisions of the waji-bul-arz, as quoted above, which would warrant the conclusion that, in the case of a mortgage by conditional sale, a pre-emptor whose rights were violated by the mortgage contract is entitled, either to claim to be placed at once in the shoes of the mortgagee, or to wait until proceedings are taken for foreclosure and then to prefer his claim to be placed, as owner of the property, in the shoes of the mortgagee, after the latter has enforced his rights to foreclosure by process of law.
3. It has, however, been contended that there is a great deal of case-law which requires be be considered before a correct interpretation can be placed upon the provisions of this waji-bul-arz. With reference to this argument I would take this general point, that any ruling as to the interpretation of a document can only be applied in its entirety to a document absolutely identical in language, and in a case the general circumstances of which are substantially the same. Where these conditions are not satisfied, an appellant, or a respondent, relying upon previous rulings of the Court and putting them forward as guides to the correct interpretation of the particular document on which the case under appeal actually turns, can do nothing more than ask the Court to take into consideration the general principles which have been applied by other Hon'ble Judges in similar cases and to derive from them whatever assistance it can towards arriving at a correct conclusion.
4. Looking at the matters from this point of view, I think that, of all the cases which have been cited to us, the one most immediately in point is that of Sundar Kunwar v. Ram Gulam 46 Ind. Cas. 900 : 16 A.L.J. 561 : 40 A. 626. The learned Judges who decided that case were dealing with a waji-bul-arz the terms of which were so far analogous to those of the document we are seeking to interpret, in that a right of preemption was given in respect of transfers either by mortgage or by sale. Furthermore, in the decision of that case, reference is made to the previous Full Bench ruling of this Court which has been most strongly relied upon by the plaintiff in appeal before us. This is the case of Alu Prasad v. Sukhan 3 A. 610 : A.W.N. (1881) 31 : 2 Ind. Dec. (N.S.) 329 (F.B.). The point taken by Richards, C.J, in discussing this older ruling is, in substance, the one which I have myself ventured to make. He treats the question as being essentially one of the interpretation of a document, and he holds that he is not bound to put a particular interpretation upon a particular document because observations made by learned Judges of the Court, in a case in which the general circumstances were not the same, and the document to be interpreted was not in identical terms, serve to suggest that, if the said Judges had had to decide the case then before the Court they might have interpreted the document under consideration in a particular way. The decision actually arrived at in Sundar Kunwar v. Ram Ghulam 46 Ind. Cas. 900 : 16 A.L.J. 561 : 40 A. 626 supports the view that I should myself be disposed to take of the waji-bul-arz now before us.
5. It has been admitted in argument that this view is in accordance, generally, with the principles of interpretation applied to evidence of custom in cases which have come before this Court on appeal since the constitution of the Pre-emption Bench, On behalf of the appellants reliance is placed on certain older cases of this Court, and in particular the argument is preferred that the Pre-emption Bench has in effect overruled older Full Bench decisions and has applied be the decision of cases before it principles inconsistent with those affirmed by their Lordships of the Privy Council in Batul Begam v. Mansur Ali Khan 24 A. 17 : 5 C.W.N. 888 : 28 I.A. 248 : 3 Bom. L.R. 707 : 8 Sar. P.C.J. 133. The point of their Lordships' decision in that case is to be found in the remarks at the close of the judgment, wherein they approved of the decision of this Court in Ali Abbas v. Kalka Prasad 14 A. 405 : A.W.N. (1892) 108 : 7 Ind. Dec. (N.S.) 627 (F.B.). Now, with regard to this case, as also to the one which went before the Privy Council, it seems to me important to notice that these were cases in which a claim for pre-emption was dismissed, and was dismissed upon a finding of limitation. The actual decision, therefore, in each case amounted to no more than this, that a cause of action had accrued to the preemptor at least from the date on which something had happened amounting to the foreclosure of a mortgage by conditional sale. The question whether any cause of action had or had not accrued before that date was one which it was no concern of either party in the cases then before the Court to argue. The decisions in themselves are not authority for anything more than what was actually decided. The real difficulty, so far as there is any, arises out of the older case of Alu Prasad v. Sukhan 3 A. 610 : A.W.N. (1881) 31 : 2 Ind. Dec. (N.S.) 329 (F.B.). It is to be noted that this case was decided by a Full Bench of five Judges and that there was very considerable difference of opinion. The case was one in which there had been a transfer by way of mortgage by conditional sale, and this had been followed by foreclosure proceedings under the old Regulation in force before the passing of the Transfer of Property Act, No. IV of 1882. According to the head-note, the five judges who heard the appeal were divided into three distinct categories of opinion. Pearson, J., held that a cause of action for a pre-emption suit had arisen from the date of the mortgage by conditional sale, and that no subsequent cause of action arose out of the foreclosure proceedings. Stuart, C.J. held that no cause of action accrued to the plaintiff on the date of the mortgage, but that he had a cause of action from the date of the foreclosure proceedings. The remaining three Judges constituting the Bench were of opinion that causes of action accrued to the plaintiff pre-emptor on both dates, but that he had a right to bring a suit on the strength of the later of the two causes of action, even though he had ignored the first. Personally, after examining the judgment delivered by Straight, J., in detail, I should feel disposed to question the correctness of the head-note. I very much doubt if Straight, J., did not intend to hold that, on the terms of the particular custom which the Court held to be proved in that case, the plaintiff pre-emptor could not have brought a claim to pre-empt on the mortgage, and if so, he was in agreement with the Chief Justice on this point. At any rate, the learned Judges were very much divided, as has above been shown. They were dealing with a Record of Bights the wording of which was certainly not identical with that of the wajib-ul-arz which we are considering. Moreover, they were dealing with foreclosure proceedings which had taken place under the old Regulation. In my opinion, therefore, the ruling in this ease cannot be quoted as in itself determining any specific point of law in such a manner as to bind subsequent decisions. If we are asked to consider the opinions expressed by the learned Judges who then constituted the Full Bench of this Court, we are certainly bound to receive with all due respect the views upon questions of law expressed by those Judges; but so far as I am personally concerned, I can only say the line of reasoning followed by Pearson, J., in his dissentient judgment appeals more strongly to my mind than anything else which I can find in the report of the case.
6. To conclude, therefore, I am of opinion that, if the question now before us is to be determined apart altogether from previous authorities of the Court, then this appeal ought to fail, because upon a plain and straightforward construction of the terms of the wajib-ul-arz the plaintiffs' cause of action accrued to them on the date of the mortgage, and the subsequent foreclosure of that mortgage was not a transfer by a co-sharer by way of sale within the meaning of the custom as recorded in the wajib-ul-arz. On the question of authority, it seems to me that the balance of authority is also on the whole in favour of the same view, and that the decision of the Full Bench in Alu Prasad v. Sukhan 3 A. 610 : A.W.N. (1881) 31 : 2 Ind. Dec. (N.S.) 329 (F.B.) may fairly be distinguished, and should not be regarded as binding us to put upon the wajib-ul-arz in this particular ease the interpretation contended for by the appellants. I would, therefore, dismiss this appeal with costs, including fees on the higher scale.
7. I agree.
8. I agree that every case of presumption must be judged on its own merits. In such a case it is not sufficient for the plaintiff pre-emptor merely to prove that there is a general custom of pre-emption prevailing in the village. It is incumbent on him to establish such particulars of that custom as would entitle him to a decree. In the present case the plaintiffs came into Court on the allegation that there was a custom in village under which, if a mortgage by conditional sale was foreclosed by a decree of the Civil Court the co-sharers had a right to intervene and take the property by pre-emption from the successful plaintiff. In order to establish such a custom the sole evidence produced consisted of an entry in an old wajib-ul-arz which has been recited in full by my learned brother. Independently of all authorities, I would agree that the only interpretation which can be put on the terms of that wajib-ul-arz would be to hold that that cannot apply to a case like the present. The plaintiffs claimed that they had a cause of action to bring the suit for pre-emption on the date when the foreclosure decree was passed. It cannot be said that on that date the defendant vendor was wishing to make a mortgage by conditional sale or an absolute sale in favour of the old mortgagee. I am of opinion that the terms of the wajib-ul-arz as they stand contemplate a voluntary sale and not a transfer which is effected by compulsion of law.
9. The learned Vakil for the plaintiffs has relied on a number of earlier cases of this Court including those of Alu Prasad v. Sukhan 3 A. 610 : A.W.N. (1881) 31 : 2 Ind. Dec. (N.S.) 329 (F.B.), Ali Abbas v. Kalka Prasad 14 A. 405 : A.W.N. (1892) 108 : 7 Ind. Dec. (N.S.) 627 (F.B.) and Batul Begam v. Mansur Ali Khan 20 A. 315 : A.W.N. (1898) 61 : 9 Ind. Dec. (N.S.) 562 (F.B.) all of which were Full Bench cases, and also on the Privy Council case of Batul Begam v. Mansur Ali Khan 24 A. 17 : 5 C.W.N. 888 : 28 I.A. 248 : 3 Bom. L.R. 707 : 8 Sar. P.C.J. 133. The argument before us has been that in view of the expression of opinion in these Full Bench cases the word 'sale' in the wajib-ul-arz should be given a wide meaning so as to include the extinguishment of the right of the mortgagor by foreclosure. The learned Vakil does not say that the present wajib-ul-arz should be interpreted in the light of the interpretation put upon the wajib-ul-arz in the earlier cases. What he has really contended is that the word 'sale' should be taken in its general and wider meaning and not in its narrow meaning as defined by the Transfer of Property Act.
10. If the present case had arisen under the old Regulations and had been governed by those Regulations, I am bound to say that on the authorities cited before us I would have felt compelled to hold that the word 'sale' must be taken in its general meaning so as to include the extinguishment of the right of redemption on foreclosure, That, however, is not the case. It is well known that before the Regulations came into force a mortgage by conditional sale used to become absolute on the expiry of the period fixed. The object of the Regulations was somewhat to protect the right of redemption of a mortgagor, and to give him a further period of grace. It was, however, held by their Lordships of the Privy Council in Alexander John Foroes v. Ameeroonnissa Begam 10 M.I.A. 340 : 5 W.R.P.C. 47 : 1 Suth. P.C.J. 621 : 2 Sar. P.C.J. 153 : 1 Iad. Jur. (N.S.) 117 : 19 E.R. 1002. that the proceedings following an application under Section 7 of the old Regulations up to the order passed under Section 8 of those Regulations were purely ministerial act and not a judicial act. It was on this ground that the majority of the learned Judges in Ali Prasad v. Sukhcn 3 A. 610 : A.W.N. (1881) 31 : 2 Ind. Dec. (N.S.) 329 (F.B.) above referred to came to the conclusion that the foreclosure was the consequence of the mortgagor's failure to redeem mortgage, that it was really the result of his own act and not on account of any intervention by the Court. Under the present law, however, suits for foreclosure are governed by the Code of Civil Procedure. The proceedings taken with regard to the foreclosure of a mortgage are proceedings in Court and the equity of redemption is extinguished by a decree of the Court. It cannot, therefore, be said that the right of redemption is extinguished by any act of the mortgagor himself. I am, therefore, of opinion that even accepting the view which was laid down in the earliest Full Bench cases, the soundness o the opinion in one of which, namely, Ali Abbas v. Kalka Prasad 14 A. 405 : A.W.N. (1892) 108 : 7 Ind. Dec. (N.S.) 627 (F.B.) appealed to their Lordships of the Privy Council in the case reported in Batul Begam v. Ali Khan 24 A. 17 : 5 C.W.N. 888 : 28 I.A. 248 : 3 Bom. L.R. 707 : 8 Sar. P.C.J. 133 those oases are distinguishable on the main ground that suits tor foreclosure are now governed by Statute. I am fortified in this view by the opinion expressed by the Full Bench in the case of Gaya Bharthi v. Lokhnath Rai 20 A. 103 : A.W.N. (1897) 208 : 9 Ind. Dec. (N.S.) 426 (F.B.) that a claim for pre-emption could nob be enforced after the order absolute for foreclosure under the Transfer of Property Act had been passed.
11. I also would, therefore, dismiss the appeal.
12. The order of the Court is that this appeal is dismissed with costs including in this Court fees on the higher scale.