MAHARAJA SINGH Vs. MOHINDRA MAN SINGH

JUDGEMENT

(1.) The facts are fully set forth in our judgment dated the 3 of August, 1921. On the 9 of June, 1917, Mrs. Kinloch executed a sale-deed, in favour of the defendant vendee, of considerable property, including shares in two villages, Kachhpura Bibamau and mahal Girwar Singh of mauza Salehdi. In both these villages the plaintiff was a co-sharer at the time of the sale. On the 30 of January, 1918, under a private sale-deed, the plaintiff transferred all his interests in mahal Girwar Singh of village Salehdi in favour of a third party. A few months after this, the present suit for pre-emption was instituted in which the plaintiff omitted to pre-empt the share in mauza Salehdi. On behalf of the defendant it was pleaded inter alia that there was a custom of pre-emption existing in village Salehdi tinder which the plaintiff was entitled to pre-empt the share transferred therein, and that inasmuch as the transaction of the 30 of January, 1918, was in reality a mortgage by conditional sale, the plaintiff had still a subsisting proprietary right in it and had a right to pre-empt. By his not having claimed pre- emption in respect of a part of the property transferred, his whole claim was barred. It was further pleaded that in any case the plaintiff, having voluntarily deprived himself of his right to pre-empt a portion of the property, was prevented from pre-empting the remainder. As there was no clear finding on the question of the existence of a custom in mauza Salehdi, this Court sent down an issue on the point and also directed the court below to record a clear finding as to the values of the different parts of the property. That finding has been returned.

(2.) The finding on the question of custom must be accepted. The defendant produced a copy of the wajib-ul-arz of 1872 which clearly records a custom of pre- emption under which a co-sharer in the patti in which the property is situated has a first right, and, after him, co-sharers in other pattis have a right of pre-emption. On behalf of the plaintiff an earlier wajib-ul-arz of 1833 was produced which simply stated that all the zamindars have the option to sell and mortgage the property but shall first transfer it to co-sharers of the village, and if they do not take it, then to a stranger. But, as pointed out by the court below, in the year 1833 the sub-divisions into pattis did not exist, and, therefore, the entries in the two wajib-ul-arzes are not necessarily contradictory. Furthermore, the defendant relied on a judgment of the year 1882 by which a claim for pre-emption was actually decreed on the basis of custom. The defendant by the production of these pieces of evidence had established a prima facie case that the custom exists. That case has in no way been rebutted. We are, therefore, of opinion that the finding of the lower court that there does exist a custom of pre-emption in village Salehdi, mahal Girwar Singh, is correct.

(3.) The next important question which requires consideration is as to whether the transaction of the 30 of January, 1918, was an out and out sale or a mortgage by conditional sale. Under that document, Maharaj Singh, in lieu of Rs. 3,000, which was part of the amount due on a previous mortgagedeed, dated the 19 of December, 1905, purported to transfer his share in village Salehdi out and out, but the document contained a provision to this effect:-- "If within six years, in the month of Jeth, I, the executant, pay the amount of sale consideration, Rs. 3,000, and the arrears of rent which may then be due against the tenants, the vendee shall reconvey the vended property to me, otherwise the property shall not be reconveyed."