KHUDAYAR KHAN Vs. RAHAT KHAN

JUDGEMENT

(1.) This appeal is without force. The plaintiff sued to preempt certain property situate in certain mahals in which he was a co-sharer. The plaintiff claimed that he was entitled to preference by reason of his being a near kinsman of the vendor. The defendant-vendee was also a co-sharer in the mahal, and his defence was that he was also related to the vendor. The plaintiff relied on an alleged custom recorded in the wajib-ul-arz of 1882 and that prepared after the partition of the village in question in 1911. Both these wajib-ul-arzes gave a preferential right to a near kinsman of the vendor who was also a co-sharer in the mahal or patti in which the property sold was situated. The Court of first instance found that the custom recorded in the wajib-ul-arz of 1882 ceased to be enforceable after the partition and that the plaintiff could only succeed on the ground that there was a contract of pre-emption entered in the new wajib-ul-arz which was prepared at the time of partition. The lower Appellate Court upheld that view.

(2.) We have examined the wajib-ul-arzes produced in the case and have no doubt that the view taken by the Courts below in regard to the effect of the partition on the custom recorded in the previous waijb-ul-arz is erroneous. As observed by their Lordships of the Privy Council in Digamber Singh V/s. Ahmad Sayeed Khan A.I.R. 1914 P.C. a custom recorded in the wajib-ul-arz is not necessarily abrogated by the partition of the village. It is open to the co-sharers to adopt that custom in its entirety or to modify it in order to adopt it to the altered constitution of the village. The co-sharers in the present instance appear to have adopted the former course for the wajib-ul-arz recorded at the time of the partition of the village in question stated that the right of preemption shall continue to belong, in spite of the partition of the village, to the co-sharers who were near kinsmen of the vendor and that it would extend, subject to the limitations therein recorded, to co-sharers of one mahal as against co-sharers of the other mahals. The plaintiff, being a nearer kinsman of the vendor, was, therefore, rightly granted a decree for pre- emption.

(3.) It is urged on behalf of the defendant-vendee that the vendor was a minor at the time of the partition and that he was not bound by any contract entered into by the co-sharers at the time. Even assuming that he was a minor co-sharer at the time, it must be presumed that he must have been duly represented in the partition proceeding by some lawful guardian who looked after his interests, and the wajib-ul-arz prepared in partition proceeding must therefore be held to be binding on all the parties to the partition proceeding. It is not open to the vendor, if he was a co-sharer at the time, So go behind the partition proceeding and raise pleas inconsistent with what was then recorded as one of the conditions on which the partition was effected. That being so, this appeal fails and is dismissed with costs, including in this Court, fees on this higher scale.