RAJA MAKUND SINGH Vs. GOPI PRASAD

JUDGEMENT

(1.) This is a defendant-vendee's appeal arising out of a suit for pre-emption. The three vendors are the sons of one Jatwar Singh, a Brahmin by caste. The plaintiffs are the two first cousins of the vendors. Their case is that on the 26 of July 1915 the vendors sold this property to Raja Makund Singh really for the sum of Rs. 8,000 but falsely entered a sum of Rs. 11,000 in the sale-deed; that there is a custom existing among the proprietors of the village under which the plaintiffs by reason of their blood relationship alone are entitled to pre-empt. They, therefore, claim the right to pre-empt not on the basis of co-ownership but simply on the basis of blood relationship. The suit was instituted on the 26 of July 1916, that is, on the last day of limitation. The vendee contested the case. He denied that there was any such custom; he pleaded that Rs. 11,000 was the true consideration and he further urged that the plaintiffs had been offered the property prior to his purchase and had refused to purchase. The case as we have said above, was instituted on the 26 July 1916. The Court below completed the case up to the arguments on the 18 of September 1917. It thereupon postponed the case for delivery of judgment. It did not deliver judgment until the 21 of October "1918." The recording, of the evidence was completed on the 1 of February 1917 and the case was postponed some 3 or 4 times then for the hearing of arguments and the arguments, as we have noted above, were not heard until the 18 of September 1917. The Court below held in favour of the plaintiffs on the question of austom and consideration and also on the question of the alleged refusal to purchase. It held that there was a custom binding on the parties, under which the plaintiffs were entitled by reason of their relationship to take the property in priority to an outsider. It also held that the true sale consideration was Rs. 8,000, and not Rs. 11,000 and it held that no offer had been made to the plaintiffs and they had not refused to purchase, Naturally, the judgment having been delivered so long after the hearing of the arguments and the recording of the evidence, there are several mistakes in it.

(2.) The defendant urges before us: (1) That the evidence on the record establishes no custom under which the plaintiffs have any right to pre-empt on the basis of their relationship. (2) It is next strongly urged that the lower Court's finding as to the sale- con-sideration is wrong; that there is no evidence whatsoever upon the record to show the market price; that the evidence of the solitary witness Aaharfi Lal is unworthy of belief and utterly insufficient to shift upon the defendant the burden of proving the true consideration; and lastly, it is urged that the evidence produced by the defendant is credible and supports the contention that Rs. 11,000 was the true consideration. The question of refusal to purchase has not been very strongly pressed, although our attention has been sailed to the evidence on the point.

(3.) Coming first to the question of custom, there are certain points which have considerable bearing upon the question. The plaintiffs filed an extras from the wajib-ul-arz of 1864. The defendants filed the whole wajib-ul-arz of the year 1864. There have been three settlements in this village. One in 1864, one in 1883 and one in 1903-1904. The wajib-ul-are of 1864 contains a brief history of the village. The then Lambardars and a fairly large body of co-sharers dictated that wajib-ul- arz. They stated therein that this village Nainpura had been founded by their ancestor, one Nain Sukb, a Kayesth by caste, that it was he who had turned the jangle into cultivation and had settled the village and that the Zemindari of this village had continued in the family without interruption and without the entry of any stranger from outside, and on the date of the wajib-ul-arz the whole body of co-sharers consisted of Kayesths, the direst descendants of the said Nain Sukh. In one paragraph of the wajib-ul-arz headed "Mention of the right of pre-emption," there is an entry to the following effect: When a so-sharer wants to transfer his share, first his near brothers shall have a right to purchase it, then the co-sharer of the patti and then again the co-sharers in the village. If these persons refuse to purchase the property, then the transferor shall be at liberty to sell, mortgage or make over the property to any one he wishes.