1. This is a plaintiffs' appeal arising out of a suit for preemption. The plaintiffs claim to preempt properties in a number of villages appended to the parent village Janar, shares in which have been transferred by defendants Nos. 2 and 3 to defendant No. 1 The sale-deed in question purports to bear the date, the 16th August 1919, but it was not presented for registration till the 11th 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 F. 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 inspite 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 Muham-madan 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 ruleof Muham-madan 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 1247F 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 demands 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 1247F. In the course of his judgment he has referred to the Clause in that 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 1247F was quite insufficient to establish the custom.
5. Before we discuss the terms of this wajib-ul-drz 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. Pahalwan Bhagat 7 Ind. Cas. 680 : 33 A. 196 : 7 A.L.J.1040. 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 with land tenures. He has gone on to remark that there is nothing in Regulation VII of 1922 which authorised Collectors to record contract 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 inter se by the co-sharers, nevertheless it is to be borne in mind that the primary duty of the Settlement Officer was to rocord all local usages. We are, therefore, entitled to infer that in the absence of any contract 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 to 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 cutsom 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 the custom of pre-emption. 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 learned 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 if was a mere contract, the record was one of custom.
9. The next question is whether, if the record was one of custem, 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 these particulars are contrary to or inconsistent with the Muhammadan Law, it is apparent that that custom cannot be co-extensive with 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 pre-emption 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, Jagdam Sahai v. Mahabir Prasad 2 A.L.J. 482; A.W.N.(1905) 190 : 28 A. 60 and Zamir Ahmad v. Abdul Razzak 29 Ind. Cas. 993 : 13 A.L.J. 704 : 37 A. 472. 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.
13. The story told by the plaintiff is as follows: On Katik Badi Parwa, 1327F. (corresponding to the 10th October 1919) one Sarju Tiwari went to Jagmohan Misir, plaintiff No. 1, and told him that Sita Ram and Kidar Nath were going to execute a sale-deed in favour of Jhullar Singh also known as Bijai Indar Bahadur Singh. Jagmohan Singh got this information a gharri (about 2 hours)after sun-rise. He immediately asked his brother Ragho Partap Misir to go to Robertsganj at once as he had a right of pre-emption in respect of that property and that lie was ready to purchase it. He gave him certain currency notes also. Ragho Partap Misir then ordered an elephant and rode on the elephant to Robertsganj. It may be noted that Robertsganj is at a distance of 12 miles from Semri, the residence of the plaintiffs. Ragho Pratab states that he arrived at Robertsganj some time about 11 o'clock and found that the sale-deed was being actually faired out. The statement of Ragho Partap is to the effect that he proceeded to the place where Sita Ram, Kidar Nath and Jhullar Singh were. They were in the Club house. He told Sita Ram and Kidar Nath that they should negotiate with them as they had a right of preemption. He told them that he was ready to execute the sale-deed, that he had a right of pre-emption and that why were they purchasing quarrel and causing the sale-deed to be executed. The vendee is said to have declined to offer the property to Ragho Partap. Plaintiff No. 2 stayed in the village till the next day and then early in the morning he went to the house of Hari Har Prasad and told him that the transaction could not be settled and asked him to write out an applicution for filing objection in the office of the Sub-Registrar at the time when the document was going to be registered. Ragho Partap states that this application had been written out partially when he received suddenly information that his wife was dead and he accordingly left the place before the application could be completely faired out. It is admitted by both parties that on the 11th October the sale-deed was presented for registration and at that time an application was filed by Wazir Ali, the elephant driver of the plaintiffs. This application stated that Sita Earn had settled negotiations with the petitioner regarding the sale of the property and in spite of it he had presented the deed for registration in favour of Bijai Indar Bahadur Singh, that in accordance with the conditions laid down in the wajib-ul-arz Sita Ram had no right to execute a sale-deed in favour of any other person and that the petitioner Was a bona fide purchaser of the shares in the said villages. The application was filed through Wazir Ali on behalf of Ragho Partap Misir. Wazir Ali then returned to Semri and handed over the application with the endorsement of the Sub-Registrar that he had nothing to do with the application and that the applicant's remedy was to sue in the Civil Court. After receiving this application Jagmohan Misir then ordered his horse and rode on horseback to the village Mukarsin, where the vendee resides, and asked him why he got the sale-deed executed in his favour when he himself had a right of pre-emption. He told Jhullar Singh that once he had sent his brother to Robertsganj and he asked him not to purchase the property but he did not listen to him; and after that he came to him and asked him not to purchase the property but he did not listen to him, He told him that he had a right of pre-emption and still he paid no heed and, therefore, he had come again to assert his right of pre-emption.
14. The first point to consider is whether this story is to be believed. The learned Subordinate Judge has rejected it altogether. The main ground for disbelieving the story which appealed to the learned Subordinate Judge is that the sale-deed purports to bear date the 16th August 1919. It is also not established that there was any previous binding contract between the vendor and the plaintiffs which might have entitled the plaintiffs to institute a suit for the specific performance of the previous contract. The learned Subordinate Judge, therefore, thought that there was no motive for ante-dating this application. He, therefore, came to the conclusion that the document, the stamp for which had been purchased on the 18th June 1923, was executed on the 16th August, which is the date which it bears. Without coming to any definite conclusion that the sale-deed was actually faired out on the 16th August, we have come to the conclusion that the story that Regho Partap went to Robertsganj on the 10th October and arrived there at the time when the sale-deed being faired out cannot be believed. The story that next day when the application of objection was being written out he had to leave the place suddenly because he received information as to the death of his wife is also difficult to believe. The application which has been produced in this case is a very short one. It begins by saying that this is an application on behalf of Ragho Partap filed through Wazir Ali. Ragho Partap admits that part of this application had already been written before he received information and left the place. It is clear, therefore, that as soon as the petitioner began to write the application it was the intention of the plaintiff that it would be filed through Wazir Ali, for we find this recital even in the very first line of this application. We also find it difficult to believe that the plaintiff was in such a great hurry as not to be able to wait till the completion of this application. The completion of the application could not have taken more than a few minutes and it would have been best for plaintiff No. 2 to have signed the application himself instead of leaving it to be signed by Wazir Ali. It might well have been that the plaintiff did not go there at all but sent the application through Wazir Ali or it may bo that when he got there he did not find anybody and did not like to wait and left the servant to get this application written out. We find it difficult to believe that Ragho Partap arrived just at the psychological moment when the sale-deed was being faired out on the 10th October 19l9. Having regard to all the circumstances we agree with the finding of the Court below that no demand whatsoever was made by Ragho Partap on the 10th October 1919. The way in which the first demand was made by Jagmohan Misir is not quite clear. According to his own statement he had learnt on the 10th that the vendor was going to execute the sale-deed and not that the sale-deed had actually been executed. One would, therefore, have expected that Jagmohan would only authorise his brother to go and make the demand and not that Jagmohan would make the demand immediately. The words which he uses may, however, be interpreted to mean that he did make a demand himself whereas the words used by Ragho Partap suggest that Jagmohan had merely authorised Ragho Partap to go and make a demand. Ragho Partap has stated 'My brother Jagmohan told me that I should prepare in haste as I will have to go to Robertsganj. He asked me to tell Sita Ram that he (my brother) had negotiated with him and that why he (Sita Ram) was not going to execute in his favour on being instigated; he was ready to purchase it and that he had got a right of pre-emption.' It is not suggested that Ragho Partap had made any first demand other than the one said to have been made on the 10th of October at Robertsganj, nor can it be contended that Jagmohan Misir made the first demand immediately on receipt of the information from Wazir Ali when the latter returned from the registration office. We may note here that the plaintiffs are Hindus living in an out of the way village. It is not, therefore, very probable that they would be intimately familiar with the strict method in which demands have to be performed under the Muhammaaan Law. Having regard to all these circumstances we have come to the conclusion that there is no reason for differing from the view taken by the learned Subordinate Judge that the plaintiff has failed to prove that any valid demands were actually performed. The result, therefore, is that this appeal must fail and it is hereby dismissed with costs including in this Court fees on the higher scale.
15. There are cross-objections filed on behalf of the respondents with regard to certain costs that have been disallowed. The learned Subordinate Judge has given reasons for disallowing costs and we are not prepared to differ from him. The cross-objections are dismissed.
16. The result is that both the appeal and the cross-objections are dismissed with costs including fees on the higher scale.