DASHRATHLAL CHHAGANLAL Vs. BAI DHONDUBAI

JUDGEMENT

(1.) THIS is a second appeal from the Extra Assistant Judge of Ahmedabad. In the suit the plaintiff seeks to exercise a right of preemption in respect of the suit property, which is situate in the Bhadra division of Ahmedabad. The plaintiff seeks to exercise the right of pre-emption by reason of her owning property adjacent to the suit property. So that we are only concerned in this case with the right of a neighbour to exercise the right of pre-emption, and not with the right of other parties, like co-owners.

(2.) PRE-emption is a part of the Mahomedan law, and, so far as is necessary for the purpose of the present appeal, one may say that it is the right of an owner of property to acquire from the purchaser of adjacent property such property at the price and on the conditions at and on which he has bought it. The object of the law, as explained in the Hedaya, was to enable landowners to avoid the advent of an undesirable neighbour, and the Prophet laid down that the neighbour has a right superior to that of a' stranger in the land adjacent to his own. So that, under Mahomedan law, a neighbour can acquire property, which has been sold, from the purchaser, provided he observes certain formalities, and in this case the lower Courts have held that the formalities were duly complied with, and that is a finding of fact which cannot be challenged in second appeal.

(3.) THE appellants have taken three points on this appeal, apart from the point which I have mentioned that the plaintiff, being a Deccani Brahmin, is not entitled in any case to exercise the custom. THEy say, first of all, that no custom is alleged, or proved, in the plaint. THE answer: to that, made in both lower Courts, is that this custom has been judicially recognized as applying to Ahmedabad; and, no doubt, it is the law that if a custom is known, and has been judicially recognized, it is not necessary to allege or prove it; it has become part of the local law of which the Court takes judicial notice. Putting it shortly, the authorities on this point come to this. In Gordhandas Girdharbhai v. Prankor (1869) 6 B.H.C.R. (A.C.J.) 263 it was asserted by a division bench that the custom was recognized in the) whole of Gujarat, though it was not necessary for the purposes of that decision to go as far as that. In Dahyabhai Motiram v. Chunilal Kishordas (1913) I.L.R. 38 Bom. 183, s.c. 15 Bom. L.R. 1136, which was a case relating to the Kaira district which is in Gujarat, the Court considered that there was no justification for the view that this custom prevailed throughout Gujarat, and they held that it did not apply in the Kaira district. That case undoubtedly very much weakened the authority of Gordhandas Girdharbhai v. Prankor. It was held in Mahomed Beg Amin v. Narayan, Meghaji (1915) I.L.R. 40 Bom. 358, R. 75, s.c. 18 Bom. L.R. 81 that the custom did not apply to Khandesh district. THEn comes Motilal Dayabhai v. Harilal Maganlal (1919) I.L.R. 44 Bom. 696, s.c. 22 Bom. L.R. 806 in which it was held that the custom existed amongst Hindus in Ahmedabad, and then there is Hamedmiya v. Benjamin (1928) I.L.R. 53 Bom. 525, s.c. 31 Bom. L.R. 374. (which I have mentioned) in which the Court held that, assuming the custom to exist in Ahmedabad, it did not extend to the vendee in that case, who was a Bene Israelite. THE Court expressed the view that this right was purely personal, and for the reasons I have given I think that the ratio decidendi in Hamedmiya v. Benjamin cannot be supported. However, it is not in any case a direct authority for the proposition that the custom exists in Ahmedabad. For that one has to go back to Motilal Dayabhai v. Harilal Maganlal, In that case the learned Chief Justice Sir Norman Macleod says that the trial Judge referred to a number of decisions both of the High Court and of the Courts at Ahmedabad, in which the custom had been considered, and he says that the custom was not disputed, but was assumed to exist, and that the effect of the decisions is that the custom of pre-emption amongst Hindus in Ahmedabad must be recognized. One criticism which arises on that decision is that "Ahmedabad" is a very vague expression. Ahmedabad is a city, and not a district, and in recent times the limits of Ahmedabad city have very much extended. Generally speaking, a local custom must be certain as to the locality in which it operates, and I do not myself know of any authority for saying that a local custom can apply within the limits of a city for the time being, and that it will expand or contract with the growth or shrinkage of the city. However, it is not disputed in this case that the lands in question are within the ancient city of Ahmedabad as it existed in the time of the Moghuls when, no doubt, this custom originated, and, it may well be that the custom within the walled city of Ahmedabad does exist. It is not necessary in the view I take of the case to express any final opinion on that subject.