RADHEY SHIAM Vs. NAZIR HUSAIN

JUDGEMENT

(1.) This is a defendant's second appeal. The suit was for a declaration that the plaintiffs own the site of a house which has been sold at auction in a decree against defendant 2 and has been purchased by defendant 1 and that they are entitled to receive one-fourth of the sale price as zar-i-chaharum. The suit was contested by defendant 1; it proceeded ex parte against defendant 2. The contesting defendant denied the plaintiffs ownership of the site. He also denied the alleged custom generally and as regards auction sales in particular. The Courts below have found for the plaintiffs and have decreed the suit. The question before me is whether the right to zar-i-cha-harum is established. The learned Judge of the lower appellate Court says: Thus there are numerous agreements on record commencing from 1873 to show that one-fourth price has always been paid to zamindars. The documentary evidence is so abundant that it is unnecessary to deal with each document. In all of them the plaintiffs have been recognized as owners of the site and one-fourth sale consideration has always been loft for them.

(2.) As I was left in ignorance as to what the learned Judge meant by "abundant documents," whether he meant five or five-hundred, I asked learned Counsel for the plaintiffs-respondents, when the appeal was first before me, how many such documents there are and he informed me that there are about a dozen documents in which the right of the zamindar to one-fourth of the purchase price was recognized. The learned Judge also finds that on two occasions, once in 1901 and again in 1903, the right of the plaintiffs predecessor to one fourth of the money paid at auction was upheld in execution proceedings. It does not appear that the alleged custom finds place in a wajib-ul-arz, but I think that there are sufficient grounds for the finding of the Courts below that the custom of zar-i-chaharum is established. The main contest before me is as to whether it applies to auction sales. In High Court Reports, Full Bench, for the North Western Provinces for 1866, p. 63 at p. 66, it was held by this Court that where by custom the zamindar is entitled to a quarter share of the sale proceeds as his haq zamindari, he is entitled to recover it on the occasion of sales, either absolute or originally conditional but subsequently becoming absolute by foreclosure, from the vendor and the purchaser. The Court observed: We are of opinion that the zamindar is entitled to a decree against Heera Ram, the conditional purchaser, as well as against the vendors. The zamindar's customary due is payable on the transfer by sale of house property; and this equally (after the sale has become absolute) whether the sale was in its inception conditional or not. The zamindar's right is to a share of the purchase money, it is not merely a right to claim that share from the vendor. It is therefore incumbent on the purchaser, if he would acquit himself of all liability, to see that the zamindar is satisfied in respect of his due...

(3.) In Utri din V/s. Munshi Prag Narain ( 08) 11 O.C. 64 at page 05, a Bench of the Oudh Chief Court observed: It cannot be doubted that, when a conditional sale has ripened into an absolute sale, there has been a sale within the meaning of the wajib-ul- arz.