1. Both these appeals arises out of Suit No. 76 of 1920 instituted in the Court of the Munsif of Azamgarh by two plaintiffs Sultan Ahmad and Iqbal Ahmad. The suit was a suit for pre-emption and various parties were impleaded as defendants. One of these parties was Sheikh Muhammad Ali who was impleaded as defendant second party. lie is the purchaser of the property and he is the appellant in first Appeal from order, No. 40 of 1923. The other sets of defendants were Muzaffar Husain the vendor first party and two other parties who were rival pre-emptors and who had instituted separate suits for pre-emption.
2. The Court of first instance held that the plaintiffs could not succeed as no proof of a custom of pre-emption was forthcoming. The lower Appellate Court reversed this decision of the Court of first instance and having done so remanded the suit for disposal on the merits.
3. We now have these two appeals, one by Sheikh Muhammad Ali the purchaser who was impleaded as defendant second party, and the other, namely, Appeal No. 50 of 1923, by Muhammad Junaid and others, who were impleaded as defendants third party. These last were, as we have said, rival pre-emptors.
4. It seems to us that the question which arises for decision in this case is covered by authority. It is not to be denied that there has been a great deal of uncertainty in the law as laid down in various decisions of this Court but an attempt has been made in order to secure consistency and it is above all things necessary in cases of the present kind to adhere as far as possible to the principle of stare decisis.
5. We have, in this case after hearing the arguments of the learned Counsel, determined that the rule of law laid down in the judgment reported as Surajbali v. Nasir 48 Ind. Cas. 220 : 16 A.L.J. 879 shall be. followed in the present case. That rule has been applied in another case reported as Sheo Badan Tewari. v. Sahebzadi Tewari 75 Ind. Cas. 792 : 21 A.L.J. 378 : 45 A. 459 : (1923) A.I.R. (A.) 523 and also in an unreported case Second Appeal No. 1322 of 1921 decided by the Pre-emption Bench on the 16th of March last.
6. It seems to us that the case is for all material purposes on all fours with the case reported as Surajbali v. Nasir 48 Ind. Cas. 220 : 16 A.L.J. 879. What do we find? The plaintiff's rely upon a wajib-ul-arz for proof of the custom of pre-emption and the question which has to be decided is whether this wajib-ul-arz affords reliable evidence of the existence of a custom. It need not be denied that the prima faice an entry in the wajib-ul-arz is to be 'treated as an. entry of a custom. That has been laid down again and again and has the authority of their Lordships of the Judicial Committee of the Privy Council. It has however always been held that this presumption is liable to be overthrown either by external or internal evidence. In the present case we find Clause (14) of the wajib-ul-arz which sets out in some, detail the various things which are to happen when a co-sharer, in a village desires to transfer property either by way of an out and out sale or by mortgage or by way of conditional sale or by way of mere hypothecation. We have a scheme by which provision is made for pre-emption of sales and also for preemption in respect of mortgages. Then we are met with a clause which strikes one as being a peculiar one to find in an entry purporting to be an entry of a custom. It is laid down that in cases where a mortgage has been made by a co-sharer and where that co-sharer is unwilling to redeem the mortgage created by him at the time when redemption may be sought, other co-sharers in a certain order may come forward and demand and get redemption of the mortgage and may take over the property and keep it for themselves. We cannot put any other interpretation on the language of this document. It follows, therefore, that here we have a clause which provides clearly that person who are strangers to a mortgage have a right of redemption and have a right to recover the property from the mortgagee and hold for themselves after they have' paid the mortgage. It was a clause of this kind which attracted attention in the case decided as Surajbali v. Nasir 48 Ind. Cas. 220 : 16 A.L.J. 879. This was one reason why in that case it was held that the recital in the wajib-ul-arz should not be treated as a recital of custom. Another peculiar feature of the wajib-ul-arz in this case is the provision which it makes to regulate the sums which may be demanded when property is either mortgaged or sold. So far as we understand the provisions relating to this matter, it is laid down that when property is sold outright the price is to be regulated on the basis of 1 percent. of the profits. In a case where the transfer is by way of mortgage the sum to be advanced by way of mortgage is to be based upon a calculation of 8 annas per cent on the profits.
7. This is indeed a remarkable provision to be found in a record which purports to be a record of custom. It is, in our opinion, quite impossible that matters of this kind should form the subject of custom and it is preposterous to say that any custom which the law will recognize can grow up which prescribes for all time the prices at which immovable property in villages in these Provinces is to be sold. If there were no other ground a custom of this kind would be condemned at once on the ground that it is unreasonable.
8. We find, therefore, a close analogy between the facts of the present case and the facts of the case in Surajbali v. Nasir 48 Ind. Cas. 220 : 16 A.L.J. 879, and following the principle of. stare decisis we have come to the conclusion that no custom has been established in this case. We hold, therefore, that the decision of the First Court was right and that the decision of the lower Appellate Court is wrong. It follows, therefore, that these two Appeals Nos. 40 and 50 of 1923 must be allowed and the order of the Court of first instance restored. The appellants in both the cases now before us are entitled to their costs including in this Court fees, if any, on the higher scale.