ZAMIAR AHMED Vs. S HAIDAR NAZAR

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for pre-emption. The facts briefly stated are : There is a grove No. 1247 in Mahal Maufi Thok Mohammad Naqi in the town of Amroha. The parties are co-sharers in the Mahal. Defendants 2 to 6, namely, Syed Hasan, Munsif Hasan, Mt. Manzoor Fatma, Absan Hasan Khan and Mt. Fatma Sughra, sold their shares in the grove to Zamir Abmad by means of a sale deed, dated 29-6-1942, for a consideration of Rs. 200. Haidar Nazar filed a suit for pre-emption on the ground that he had, according to the custom of pre-emption prevailing with regard to the property in dispute a preferential right and was entitled to pre-empt the property sold. He claimed the preferential right on the ground that he was a relation of the vendors in addition to his being a co-sharer, while Zamir Ahmad, the vendee, was merely a co-sharer. The defence inter alia was that there was a custom of pre-emption in Amroha, that, at any rate, if there was a custom it was in accordance with the Muham-madan law and that as the plaintiff had not performed the demands necessary under that law, he was not entitled to pre-empt the property. The trial Court held that there was a custom prevailing in the town of Amroha whereby a co-sharer, who was related, had a preferential right of preemption, that the plaintiff did not perform any demands and that the Muhammadan Law of pre emption did not apply. It, therefore, decreed the suit. On appeal, the lower appellate Court confirmed the trial Court's decree.

(2.) In this second appeal by the defendant, four points have been urged before us; firstly, it has been urged that even if there is a custom of preemption, the Muhammadan law of pre-emption would apply because the parties are Muhammadans; secondly, that even if there is a custom, since it does not mention anything about the performance of demands, it is necessary to perform the demands and the plaintiff is not entitled to pre-empt in the absence of any demands having been made by him; thirdly, that even if there is a custom, it has ceased to exist because the land in dispute is in a Municipal area, and fourthly, that custom favouring a relation ia not reasonable.

(3.) So far as the general principle urged by learned counsel for the appellant that as between Muhammadans the law applies in preference to custom is concerned, we have no hesitation in holding that in India this principle does not apply, except where by law the Muhammadan law has been made applicable to Muhammadans. It will be observed that the Muhammadan law applies to Muhammadans not in all, but in some matters only. The power of Courts to apply Muhammadan law to Muhammadans is derived from and regulated partly by Statutes of the Imperial Parliament read with Article 225 of the Constitution of India but mostly by Indian legislation. Article 225 of the Constitution provides: