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Sheo Badan Tewari and anr. Vs. Sahebzadi Kuer - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in75Ind.Cas.792
AppellantSheo Badan Tewari and anr.
RespondentSahebzadi Kuer
Cases ReferredSurajbali Singh v. Mohammad Nasir
Excerpt:
custom - pre-emption--wajib-ul-arz, entry in, construction of. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - we agree with the conclusion arrived at by the lower appellate court, and hold that the plaintiffs-appellants have failed to prove their allegation of custom......and retain the share so redeemed until the original mortgagor is in a position to pay his co-sharer. wajib-ul-araiz of this kind have come up before this court more than once, and it has been held that the terms that we find in the present wajib-ul-arz do not go to show that they are a record of custom. a reported case on this point is that of surajbali singh v. mohammad nasir 48 ind : cas. 220 : 16 a.l.j. 879. the wajib-ul-arz in the reported case was also in similar terms to the one before us. in the reported case, on interpreting the wajib-ul-arz before them, the learned judges of this court held that the entry in the wahb-ul-arz on the very face of it disproved the existence of the custom. the clause relied upon by the plaintiffs-appellants, when read as a whole and examined.....
Judgment:

1. The two Appeals Nos. 1333 and 1334 are connected, inasmuch as they arise out of one suit brought by the plaintiffs appellants to pre-empt certain property conveyed by Moti Saran and Musammat Sona Kunwar to the contesting defendants. The claim was resisted on the ground, among others, that the custom 01 pre-emption alleged in the plaiut did not obtain in the village in which the property sold was situate. In support of the alleged custom of pre-emption the plaintiffs-appellants produced the wajib-ul-arz of the village. The learned Munsif accepted the recital in the wajib-ul-arz as evidence of the custom stated in the plaint and decreed the claim. On appeal by the vendees, the learned District Judge construed the clause relating to the transfer of a share by a co-sharer in the village differently. He was of opinion that the phraseology of the clause upon which reliance was placed by the pre-emptors negatived their allegation as regards the custom of pre-emption. The appeal was, therefore, allowed and the decree of the First Court was set aside and the claim of the pre-emptors was dismissed.

2. In appeal before us it is contended on behalf of the plaintiffs-appellants, the pre emptors, that the learned District Judge has not interpreted the clause of the wajib-ul-arz relating to the transfer of property by a co-sharer correctly. The clause upon which reliance is placed is to the effect that in case of a transfer by a co-sharer of his share by sale or mortgage he must gave preference to his co-sharers over a stranger. It further goes on to say that in case a mortgage given by a co-sharer has matured and the mortgagor is unable for want of funds to redeem the mortgage, any of his co-sharers can pay off the mortgage and retain the share so redeemed until the original mortgagor is in a position to pay his co-sharer. Wajib-ul-araiz of this kind have come up before this Court more than once, and it has been held that the terms that we find in the present wajib-ul-arz do not go to show that they are a record of custom. A reported case on this point is that of Surajbali Singh v. Mohammad Nasir 48 Ind : Cas. 220 : 16 A.L.J. 879. The wajib-ul-arz in the reported case was also in similar terms to the one before us. In the reported case, on interpreting the wajib-ul-arz before them, the learned Judges of this Court held that the entry in the wahb-ul-arz on the very face of it disproved the existence of the custom. The clause relied upon by the plaintiffs-appellants, when read as a whole and examined closely and carefully, goes to show that it mentions matters which the co-sharers had agreed upon and does not mention a custom. We agree with the conclusion arrived at by the lower Appellate Court, and hold that the plaintiffs-appellants have failed to prove their allegation of custom. We, therefore, dismiss this appeal with costs.


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