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Alama Chand Vs. Chhajju - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All530; 74Ind.Cas.339
AppellantAlama Chand
RespondentChhajju
Excerpt:
wajib-ul-arz construction of - pre-emption provision for--exteraneous matters also included--record of custom--presumption--pre-emption--transfer of mortgaged property--consideration equivalent to mortgage-money--transaction, whether sale and pre-emptible. - - 879. in this latter case we may observe the wajib-ul-arz upon which reliance was placed in addition to providing for pre-emption made provisions for other matters such as redemption of property mortgaged by a person who had no interest in the right to edeem clearly in eases of this latter description the wajib-ul-arz does contain matters which cannot possibly be the subject of custom. 4. coining, now to the wijib-ul-arz with which we are concerned in this case there can be no doubt that 'other matters as well as pre-emption are..........is so framed as to refer to matters other than pre-emption it ought not to foe treated as a record of custom but merely as a record of contract.3. it has no doubt been held in a number of cases which have been consistently followed that, if a wajib-ul-arz contains matters which could not possibly be the subject of a custom then the ordinary presumption that the wajib-ul-arz is a record of custom is overturned. that principle is laid down in the case of fazal hussain, v. muhammad sharif 24 ind. cas 464 : 36 a. 471 : 12 a.l.j. 800. it was also enunciated in another case reported as surajbali s ngh v. mohammad nisar 48 ind. cas 220 : 16 a.l.j. 879. in this latter case we may observe the wajib-ul-arz upon which reliance was placed in addition to providing for pre-emption made.....
Judgment:

1. Two points have been discussed before us in this second appeal The first point is whether the Courts below were right in holding that the waj b-ul-arz of 1863 was evidence of a custom.

2. It is contended before us that because the wajib-ul-arz it question is so framed as to refer to matters other than pre-emption it ought not to foe treated as a record of custom but merely as a record of contract.

3. It has no doubt been held in a number of cases which have been consistently followed that, if a wajib-ul-arz contains matters which could not possibly be the subject of a custom then the ordinary presumption that the wajib-ul-arz is a record of custom is overturned. That principle is laid down in the case of Fazal Hussain, v. Muhammad Sharif 24 Ind. Cas 464 : 36 A. 471 : 12 A.L.J. 800. It was also enunciated in another case reported as Surajbali S ngh v. Mohammad Nisar 48 Ind. Cas 220 : 16 A.L.J. 879. In this latter case We may observe the wajib-ul-arz upon which reliance was placed in addition to providing for pre-emption made provisions for other matters such as redemption of property mortgaged by a person who had no interest in the right to edeem Clearly in eases of this latter description the wajib-ul-arz does contain matters which cannot possibly be the subject of custom.

4. Coining, now to the wijib-ul-arz with which we are concerned in this case there can be no doubt that 'other matters as well as pre-emption are referred to. We find a reference to the manner of inheritance. We find reference to the powers of the widow who is in possession after her husband s death. There are declarations as to how property descends when a deceased. Co sharer had left two widows. There are also provisions for the exclusion of daughters and daughters sons from inheritance. It cannot however be said that the matters which we have just referred to cannot be the subject of custom for it is notorious that there is a widespread custom, for example of the exclusion of daughters and daughters sons from inheritance another well-known custom is the custom of stri bant or the division of property in accordance with the number of wives.

5. Looking at this wajib-ul-arz we are unable to hold that it falls within the purview of the rulings to which we have referred and we consider there fore that the Courts below where just find in holding that the wajib-ul-arz was a record of custom.

6. The only other point raised is with regard to certain findings of feet of the Courts below.

7. The sale in this case purported to be for a sum of Rs. 1,2oo. It was recited in the sale-deed that a sum of Rs. 550 was being left with the purchaser to redeem a prior mortgage and the balance of Rs. 650 was to be paid before the Registering Officer. Both the Courts below are agreed that the money was handed over to the vendor before the Registering Officer but they are also agreed that after it had teen so mace over it was returned again to the purchaser. On the findings there fore of the Counts below this transfer was made for a sum of Rs. 550 only.

8. In these circumstances it has been argued by the learned Counsel for the appellant that there was Rule sale at all inasmcuh as the vendor got nothing. We see however that the learned Judge of the Court below has recorded a finding that 1he market value of the property sold was not more than Rs. 500. If, therefore, by this transfer the vendor was getting rid of the liability to pay a sum of Rs. 550 it cannot be said that there was no consideration for the transfer. We may observe that the prior mortgage in respect of which Rs. 550 was left with the purchaser was of the year 1917 and that the suit to enforce the personal obligation of the mortgagor WES well within time It seems to us that the argument that this transfer does not amount to a sale cannot succeed.

9. The result is that we dismiss this appeal with costs including in this Cost fees, if any, on the higher scale.


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