MUHAMMAD SALIM Vs. SADAR-UD-DIN BEG

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-mption of zamindari property consisting of shares in 47 villages in the Azamgarh district. The plaintiff based his claim to pre-empt this property upon a custom of pre-emption as set out in the wajib-ul- arzes of the villages and also on the principles of Muhammadan Law. The plaintiff claimed to be the hissadar qaribi of the vendor and as such entitled to pre-empt as against the vendee. The Court below found in plaintiff's favour and decreed the suit in full except as regards one village, viz., Chak Girwi in which it was held that both plaintiff and the pre-emptor had equal rights, and it was directed that the plaintiff could obtain half the share in Chak Girwi upon payment of Rs. 30. The defendant-vendee appeals against this decree. The learned Advocates in this case have gone through the wajib-ul-arzes in the remaining 46 villages and have satisfied themselves that in all these wajib-ul-arzes there is a right of pre-emption recorded in favour of the hissadar qaribi. The contention on behalf of the vendee- appellant in this Court is that whether the expression hissadar qaribi is understood as meaning near relative or merely a near co-sharer, in either alternative the defendant vendee stands on an equal footing with the plaintiff pre-emptor and that, therefore, the latter has no preferential right under the provisions of the wajib-ul-arzes. The genealogical tree which is set out at page 10 of the paper- book shows that both parties, that is, the vendee appellant and the pre-emptor are both related in some way or other to the vendor and if hissadar qaribi be interpreted as meaning a near relative, they both come under that category. An examination of the khewats discloses the fact that both the appellant and the pre- emptor are recorded in each of the villages in the same sub-division of the khewat. The reason why the Court below has given preference to the plaintiff is as stated in the judgment. Having regard to the signification of the words hissadar qaribi. I am of opinion that the plaintiff may be more aptly termed a near co- sharer of the vendors than the defendant-purchaser whose name is separately shown in the khewat in another line, although both of them appear in the same khata." The learned counsel for the respondent very properly abandoned the line of reasoning upon which the Court below gave the preferential right to the plaintiff-pre-emptor. It is obvious that as both par ties are recorded as holding shares in the same sub-division of the khewat there can be no distinction drawn between them, that is, they both stand on the same level. The conclusion, therefore, we have come to is that if hissadar qaribi be interpreted as meaning a near relative or near co-sharer, the vendee appellant before us stands on an equal footing with the plaintiff and his rights by purchase of the property should not have been interfered with. The learned counsel for the respondent attempted to support the judgment of the Court below on another ground, viz., that according to Muhammadan Law both parties being Muhammadans and having an equal right of pre-emption his clients should at least obtain a decree for preemption of one- half of the property. His contention is that he is entitled to fall upon the Muhammadan Law as the fundamental law of pre-emption. He has not cited to us any precedent for the position he has taken up in this case, and it appears to us that there is a strong current of authority against it. In the decision of Shah Ghulam Hazrat Masoom V/s. Nur Ahmad S.D.A. (1860) p. 362, a somewhat similar question was held that the general rule of Muhammadan Law on the subject of pre-emption cannot be pleaded in bar of the special covenant entered into by the coparceners of an estate defining particularly the rights of pre-emption in respect to that estate. In Chowdhree Brij Lall V/s. Rajah Goor Sahai N.W.P. (F.B.) 1866-67 p. 96, we find the following passage:-- "We do not mean to lay it down that a pre- emptive condition in a wajib-ul-arz may not be so expressed as to indicate that the Muhammadan custom of pre-emption prevails, and in such case, it will be undoubtedly the duty of the Court, if called on to decide on the validity of a claim preferred under such a condition, to decide upon its validity with reference to the special provisions of the Muhammadan Law. But if no clear expression is found that the parties intended that the Muhammadan right of pre-emption should be recorded as prevailing, and if on the contrary the words indicate a course differing from the requirements of the Muhammadan Law to be pursued by the vendor and the would-be purchaser, then the stipulations of the wajib-ul-arz and those stipulations alone are to be regarded, and the Court must pass its decree with reference to the proof afforded, that those stipulations have or have not been performed. In our view, if the wajib-ul-arz is to be regarded as a contract, the same laws of interpretation are to be applied as to other contracts ; if, on the other hand, it is to be regarded as a record of usage or custom, the custom, (if the terms of the instrument be clear) may be assumed to be recorded with all the incidents, which are admitted to attach to it, and no new incidents not mentioned in the record ought to be imported into it,, unless it be the manifest intention of the parties that they should be so imported." A later decision is to be found in the case of Nazir-ud-din V/s. Kadir Baksh A.W.N. (1894) 193, in which it was held by Edge, C.J., and Banerji, J., as follows:-- It appears to us that there can exist a lawful and a reasonable custom in a mahal which ex-eludes the broad application of the Muhammadan Law of pre-emption and limits the right of pre-emption to share-holders and to share-holders in the particular mahal in which the property is sold. If it were not so, the confusion would be immense. One set of persons not share-holders in a mahal and who have not, amongst the Muhammadans, the first right of pre-emption, would be claiming pre-emption as against other persons, who as near co-sharers, would, under the wajib-ul-arz, have the first right of pre- emption according to the custom." Apart from these authorities we are of opinion that the position taken up on behalf of the respondents is untenable. We are confirmed in this view by the authorities to which we have referred. We allow this appeal and set aside the decree of the Court below except as regards a share in Chak Girwi. The decree of the Court below in respect of that particular village is affirmed provided the money, viz., Rs. 30, is paid within two months from this date. If the payment is not made, the suit with regard to Chak Girwi also will stand dismissed. The appellant will have costs in this Court and in the Court below, in this Court including fees on the higher scale.