PIR KHAN Vs. FAYAZ HUSAIN

JUDGEMENT

(1.) This appeal arises out of a suit; for pre-emption of a zemindari share and a house. The plaintiff-appellant; is a co-sharer in the mahal. He is also a Mussalman of the Sunni sect. The, vendor-is also a Mussalman but of, the Shia sect. The vendees are Hindus and strangers to the village. The plaintiff bases his right. on a custom prevailing in the village among the members, of the co-parcenary body. In the alternative he claims a right based on. Muhammadan Law and alleges that he performed the two necessary preliminary demands. The Court below has dismissed the suit. It held that the plaintiff had failed to prove satisfactorily the existence of the alleged custom. In regard to the alternative claim, it held that the plaintiff was not entitled to claim the application, of the Sunni rule of pre-emption to this case, the vendor being a Shia, and under the Shia rule of pre-emption, no right of preemption could be claimed in the circumstances of the present case as there were admittedly many more than two co-sharers. It must be pointed out that the share sold is Khata Khewat No. 19 in which the plaintiff has no share, but it is part of a patti in which he has a share. To this patti is attached certain shamilat land in which all the co-sharers of the patti have a share, and there is also some shamilat deh in which all the co-sharers of the mahal have shares. The house in suit stands on the shamilat deh and belonged to the vendor only. The plaintiff claims his right because he has a share in the patti and village. On appeal it is urged: (1) That the evidence produced is amply sufficient to prove the custom. (2) That if this is not correct, then the lower Court was wrong in applying the Shia rule of pre-emption as the Muhammadan law of pre- emption prevailing in these Provinces must be taken to be the Sunni Law, irrespective of the creed of the parties, and, therefore, the lower Court ought to have decided the third and fourth issues which it has not touched.

(2.) In regard to the first point, the plaintiff, produced an extract from the village; Wajib-ul-arz of 1867, also copy of a judgment in a pre-emption suit of 1897, a copy of the pasture dehi prepared at the last Settlement which is now current and four witnesses.

(3.) Taking first the extract from the Wajib-ul-arz of: 1867 we see that it runs as follows: Paragraph 6 regarding the transfer of a hakiyat by sale or mortgage. Every co-sharer has, power to transfer his hakiyat (his property) entered in the khatauni. If any co-sharer, wishes to transfer his hakiyat by sale he shall first transfer-it to an ek-jaddi own brother, and in case of his refusal a co-sharer in the village." is entitled to make a purchase. If a dispute arises regarding the price of the property to be transferred it shall be decided either by the Court or by arbitration, and if any brother or co-sharer does not take-in lieu of the price fixed by arbitrators, the co-sharer may transfer it to a stranger if he; likes; and he may mortgage it to whomsoever, he likes. If a son is alive a gift in favour; of a daughter s son or sister s son shall not be valid in the case of Hindus; but it shall be valid in the case of Mussalmans, while in the case of Englishmen the provisions of the statutory enactments shall be complied with. In this village Mahajans, Brahmans, Kalals, Rajputs and Saiyeds are co- sharers. On the death of a proprietor without male issue, his widow provided she does not re-marry shall be the owner with a power to sell or mortgage, but she shall not transfer the property of the deceased to her father, brother or relations. She can make a transfer to the heirs of her deceased husband. In case the widow adopts a son from amongst the issue of her father or deceased husband, then the property shall devolve on such adopted son if she adopts one from among the relations of the husband but it shall not devolve on the issue of her father or on a ghair-kuf. In the case of two widows with different number of children the estate shall be divided with reference to the number of brothers and not per stirpes. In case there is no male issue the ek-jaddi relations shall be the owners.