DORI Vs. JIWAN RAM

JUDGEMENT

(1.) In this appeal is involved one of the vexed questions in regard to the right of pre-emption which frequently come before the Court. In the suit out of which it has arisen, the plaintiff-appellants claimed a right to pre-empt a sale to Jiwan Ram of a 5 biswas share in a certain village relying upon the provisions of the wajib-ul- arz of 1272 Fasli, which gave a right of pre-emption, first to a near sharer (hissadar karibi) and secondly to another sharer in the village (dusre hissadar deh). The purchaser is a stranger to the village. The village was recently partitioned but no new wajib-ul-arz was framed on the occasion of the partition. The plaintiff is a co-sharer in one of the mahals into which the village is now divided but has no share in the mahal in which the property purchased by Jiwan Ram is situate. Outsidethe wojib-ul-arz neither side produced any evidence. The wajib-al-arz is prima facie evidence of the existence of the custom which it records and the only question is as to the true construction to be placed upon it. The learned Judge of this Court, from whose decision this appeal has been preferred, held overruling the two lower Courts that the case was "on all fours with" the case of Dalganjan Singh V/s. Kalka Singh 22 A. 1 and that the decision of the Full Bench in that case governs it. If that ruling is applicable, it is binding upon us and must be loyally followed, but let us see what was decided in it. The facts of it were these: The sale which was sought to be pre-empted was a sale of 7 bighas of land in the village of Serai Sitam and the claim for preemption was based on the wajib- ul-arz framed at the last settlement in 1880-1881. The portion of the wajib-ul-arz relating to preemption is contained in Chapter II which is headed "as to the rights of co-sharers among themselves based on custom or agreement. " Section 13 of the Chapter (sic) "as to the custom of right of pre-emption," and the clause embodying the right runs as follows: If any hissadar wishes to transfer his share (apna hissa) first, he will transfer it to his own brother, then to his near relatives, thirdly, to owners in the village who are partners in the same khata (malikan sharik khata), fourthly, to sharers in the village (hissadaran deh). If none of these purchase, then he is competent to transfer it to any one he likes."

(2.) It was decided that in every case the question whether or how far a contract or a custom of pre-emption recorded in the wajib-ul-arz of an undivided mahal was still in force or who is entitled to claim the benefit of it, was not capable of any absolute or invariable answer; that it depended in each case upon the proper construction of the terms of the particular contract or the proper interpretation of the particular custom re-corded, assuming that there was no evidence of any intention on the part of the co-sharers at the time of partition to put an end to the contract or the custom ; but that there is a strong presumption against such claims for pre-emption when made after perfect partition by persons who are no longer co-sharers of the vendor."

(3.) No hard and fast rule, it will be observed, was laid down and the judgment is of importance more from the lucid review of the. authorities by the learned Chief Justice, Sir Arthur Strachey, and the guidance to be found in his judgment in dealing with questions of pre-emption, than as a ruling which would govern individual cases. As my brother Banerji said in his judgment in it, the question in each case is that of the construction of the nature of the particular custom or contract on which the claim for pre-emption is based, and whether the custom or contract can apply to the altered state of things which has come into existence since a perfect partition has been effected."