1. This is a defendant-vender's appeal arising out of a suit for pre-emption. The defendant had denied the existence of any custom and the Court of first instance dismissed the suit. On appeal the learned District Judge set aside the decree of the First Court and decreed the suit, holding that the custom of pre-emption alleged by the plaintiff had been established. The evidence as to the existence of the custom produced by the plaintiff consists of an entry in the wajib-ul-arz of 1870 as well as decrees the years 1885 and 1916. As against that the defendant relied on the judgment and decree of; the year 1913.
2. An entry as to the right of pre-emption recorded in a wajib-ul-arz is certainly good prima facie evidence of the existence of the custom unless there is internal evidence in the wajib-ul-arz itself, or some other evidence or circumstance to rebut it. In the present case, although it appears that there was an earlier wajib-ul-arz of 1860 in existence, none was filed. We have only the entry in the wajib-ul-arz of 1870 which in the early portion of it does contain an express statement as to the existence of a right of pre-emption in favour of bhai haqiqi and then qaribi, then pattidars and then co-sharers in other pattis as against strangers. The clause in the wajib-ul-arz containing this recital, however, contains a large number of other matters over a dozen in number.
3. It has been contended Very strongly on behalf of the defendant-appellant that, reading the clause as a whole, this entry cannot be a record of custom. The test to be applied in such cases was laid down by the Special Beach in Fazal Hussain v. Muhammad Shari 24 Ind. 464 : 36 A. 471 : 12 A.L.J. 800, where it was pointed oat that if a wajib-ul-arz was of an unusual nature and in the very same clause in which reference was made to pre-emption, reference was also made to a number of other matters which could not possibly have been matters of custom, the presumption would be rebutted. This case has been, followed in a number of other cases, vide the case in Surijbali Singh v. Mohammad Nasir 48 Ind. Cas. 220 : 16 A.L.J. 879 where the right of one co-sharer to redeem a mortgage made by another co-sharer, was held not to be n possible record of custom.
4. In the present case as it is not necessary for us to give in detail all the matters recited in the clause which may or may not be the record of custom, we need only to refer in particular to that portion of it which says that an usuless co-sharer shall have no right to make a gift of his property in favour of a person not entitled (gair mustahaq), and if such a transfer takes place, then on of the death of the co-sharer his legal heirs would be the owners of the property.
2. It is obvious that this is an unreasonable restraint on an owner's power of alienation, and even though intended for the benefit of his relations, it cannot possibly be enforced in a Court of Law. An entry which lays down that a right exists which cannot be based on a custom having the force of law, is valueless as evidence to prove such custom. This being so, we are of opinion that the presumption which would ordinarily arise from an entry of a right of pre-emption in the wajib-ul-arz has in this case been sufficiently rebutted, and that there is internal evidence in the clause itself to show that the recitals contained therein are not all records of custom. In addition to this wajib-ul-arz, the plaintiff relied on a decree for pre-emption of the year 1885. It is, however, to be noted that the Settlement of 1870 had not expired by that year and that the right of pre-emption, even if based on contract, wets then enforceable. In that judgment the question of custom was neither raised nor decided. The decree of the year 1916 is a mere compromise decree. Although it is certainly evidence of an assertion of the right of pre-emption on the part of the co-sharers, it cannot be conclusive inasmuch as the question of the existence of any custom was not gone into by the Court and decided. As against this we have the Munsif's judgment of the year 1913 where the plaintiff's case that a custom existed had been found not to have been established. Our conclusion therefore, is that in this case the plaint ff has failed to establish that there is a custom of pre-emption under which he is entitled to pre-empt the property. The result is that this appeal must be allowed. We accordingly set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs including in tin's Court fees on the higher scale.