MUSAMMAT RETURAJI DUBAIN Vs. PAHALWAN BHAGAT

JUDGEMENT

(1.) The question raised in this appeal lies in a narrow compass. The appeal arose out of a suit for pre-emption and the sole question is whether or not the record of the right of pre-emption contained in a wajib-ul-arz of the village of Deoria in the district of Gorakhpur, prepared at the Settlement of 1869, is a record of a right existing by custom or by contract. The plaintiff relies upon this wajib-ul-arz as establishing her claim, while the defendants rely also upon an earlier wajib-ul-arz of 1833, and contend that reading the two wajib-ul-arzes together, the right must be regarded as one arising out of contract. This is the view which was taken by the; two Lower Courts. In consequence of a recant decision of a Bench of this Court which is in conflict with earlier decisions, this appeal has been laid before a Full Bench.

(2.) The heading to the paragraph in the wajib-ul-arz of 1833 which deals with pre-emption is Mode of sale or transfer of whole or part of shares. "The words custom of pre-emption" are not used. The paragraph runs as follows: If any of us wishes to transfer the whole or a part of his share by sale or mortgage, he should inform the co-sharers of the village and should mortgage or sell the same to him (sic) at fixed price. If any one sells his share to a stranger without information to the co-sharers of the village, the said transfer shall be invalid.

(3.) In the wjib-ul-arz of 1869 the right which is recorded is different. Paragraph 14 of that wajib-ul-arz in which the right of pre-emption is stated runs as follows: "In case of extreme or urgent necessity every co-sharer has aright to transfer his share recorded in the khewat. Near co-sharers and other pattidars will have the right of pre-emption, preference amongst them will be according to degrees of nearness." The heading to the paragraph is ?pre emption and transfer."