BHIM SEN Vs. MOTI RAM

JUDGEMENT

(1.) This appeal arises out of a pre-emption suit. The Court of first instance dismissed the plaintiffs claim on the ground that the right set up by them was a right existing by contract and not by custom and that the period for which the contract was entered into having expired, the right came to an end. The same view was taken by the learned District Judge upon appeal to him. Hence this appeal to the High Court.

(2.) In consequence of a conflict in the decisions of the Court in regard to the construction of wajih-ul-arzes in the District of Shahjahanpur, corresponding to the wajib-ul-arz before us in this case, the appeal was sent to a larger Bench so that there might be a binding decision of the Court upon the true meaning of the pre-emptive clause in the wajib-ul-arz before us, and similar clauses in other wajib-ul-arzes in regard to the right of pre-emption. The wajib-ul-arz runs thus: "If a co-sharer has to sell and mortgage his Hakeat and a mortgagee has to sub- mortgage, then at the time of transfer it will be incumbent that he should, after giving information sell and mortgage for a proper price, first to a near co-sharer and, in case of his refusal, to another co-sharer in the village; should he not take it, or not give a proper price, then he (the vendor) will have power to transfer it to whomsoever he likes." This translation is admitted by the parties to be an accurate translation of the wajib-ul-arz in regard to pre-emption. The paragraph in which this right is set forth is headed "Relating to the right of pre-emption (dar bab haq shufa).? It has been suggested that this heading indicates that the right was not one existing by custom but arising out of contract as the word custom is not used in the heading. I am not disposed to attach any importance to the omission of the word 0custom in the heading of paragraph 14. It appears to me that the words relating to the right of pre-emption" would apply equally well to a right of pre- emption existing by custom as to a right of pre-emption arising out of contract. In the Full Bench case of Majidan Bibi V/s. Sheikh Hayalan A.W.N. (1897) 3, it was laid down that "If a wajib-ul-arz did not itself show, or if it was not otherwise proved, that the pre-emption clause was merely the embodiment of a new contract as to pre-emption, the reasonable and proper construction of such a document would be that the pre-emption clause was merely the recital of a pre-existing custom in force in the village ; and in such a case, it would be for the defendant in a suit for pre-emption to prove by clear evidence that no such custom had existed in the village, and that the vendor and the plaintiff had not agreed to be bound by the recital."

(3.) This rule I fully approve of. It has been followed in a number of cases. [See Baldeo Sahai V/s. Nagai Ahir 3 A.L.J. 850, also Sewak Singh V/s. Girja Pande 2 A.L.J. 6 : A.W.N. (1905) 16].