LALA BADRI PRASAD Vs. GOURI SHANKER

JUDGEMENT

(1.) THE facts giving rise to this appeal are as follows:

(2.) THE plaintiff-respondent was the Lambardar Zamindar of the village where the disputed property was situat ed. He alleged that there was a custom hi that village that when a 'riyaya' sold a house, the Zamindar got one-fourth of the sale consideration. Sri Ram de fendant No. 1. was in possession of a house as a 'riyaya'. He sold the same to the contesting defendant appellants for Rs. 12, 000/- and, therefore, by virtue of the custom, referred to above, the plaintiff, was entitled to recover Rs. 3, 000/- from the defendants.

(3.) THE first point which was argued In this appeal was that in order to prove that a custom has the force of law, it must be reasonable and not opposed to law and as this right to recover 'zare chaharum' was unreasonable and was opposed to law, there fore, the plaintiff-respondent was not entitl ed to claim a decree on the basis of the same. In support of the custom, the plain tiff relied on a number of documents and oral statements. The oldest document is the 'dastoor dehi'. This custom came into force after the Transfer of Property Act was en forced and, therefore, as provided under Section 2 (c) of the Transfer of Property Act, the custom in question was opposed to law and, as such, it was not binding on the parties. In this connection, reliance was placed on Sections 55 (1) (g), 55 (5) (b) and Section 55 (5) (d) of the Transfer of Proper ty Act. Under Section 2, the Transfer of Property Act was not to affect the provisions of any enactment not repealed, the terms of incidents of a contract or constitution of property which are consistent with the pro visions of the Act and are allowed by the law to remain in force; the right and liabi lity arising out of a legal relation constitut ed before the Act came into force or any relief in respect of any such right or liability and a transfer by operation of law save as provided by Section 57 of this Act. In order to see as to whether clause (b) or clause (c) of Section 2 of the Transfer of Property Act applied to the facts of the case, it has to be decided as to whether the right to recover 'zare chaharum' is a custom or a contract. To my mind, it is a custom lost in antiquity and exercised as a right through out because there was no contract between the seller and the buyer about the payment of any amount to the Zamindar out of the sale consideration. This right arose out of the custom which was mentioned in the 'Dastoor-e-Dehi' or the 'Wajibularz'. There fore, sub-clause (c) of Section 2 of the Trans fer of Property Act applied and the Trans fer of Property Act would not affect such a custom.