SHAH LALCHAND Vs. SHAH RAM CHAND

JUDGEMENT

(1.) This appeal and the cross-objection arise out of a suit for pre-emption and the main question for consideration is whether the plaintiffs-respondents are entitled to a preferential right of purchase as against the defendants vendees. The sale in question was effected by the defendants Nos. 3 to 13 in favour of the defendant No. 1 and the father of defendant No. 2 for a consideration of Rs. 22,000 on the 27 of May 1919; and the property sold comprised a 3 biswas share in patti No. 14 with the rights appertaining thereto in shamilat pattis Nos. 17 and 18 in the thok, known by the name of thok 12 biswas in the village Kadipur. The allegation of the plaintiffs was that they were co-sharers in that thok and that the defendants vendees were strangers. The Court below found that the village Kadipur comprised 2 thoks, that the plaintiffs were co-sharers in the thok in which the property in suit was situated and that the defendants vendees were co-sharers in the other thok. It further found that the plaintiffs were entitled to a preferential right as against the defendants vendees and that the sale consideration actually paid was Rs. 22,000 It accordingly decreed the claim of the plaintiffs subject to the payment of the above amount.

(2.) Paragraph 1.4 of the Wajib-ul-arz of the village Kadipur, dealing with the right of pre-emption, states: that in the case of a transfer of property by a sale or mortgage but not by a gift, the claim to the right of pre-emption (dava haq shafa) shall belong first to an own, brother and nephew then to a paternal cousin, a partner in the property, then to the co-sharers in the thok and then to the co- sharers of the village. The contention here is that the right to claim pre-emption arises only when a sale or mortgage is effected in favour of a person outside these categories and that no right of preference is given by the wajib-ul-arz between the co-sharers of the different categories inter se. In other words it is argued that the right of preemption is at best recognised only where a sale or mortgage is effected in favour of a stranger and not where it is effected in favour of a member of one or other of the categories above mentioned. It is further urged that the clause itself does not establish any custom of preemption in the village because it mentions that which could hardly be the subject of a custom, namely, that no gift could be made by a co-sharer except in favour of an own brother and nephew or a daughter's son or except for a charitable purpose. The last condition is clearly extraneous to the scope of the paragraph, which purports to deal with the right of pre-emption. But it is contended that if that entry could not be the record of a custom the previous entry could hardly be treated as a record of a custom of pre-emption.

(3.) The questions raised present features of some difficulty. As pointed out in Digambar Singh V/s. Ahmed Sayed Khan 28 Ind. Cas. 34 : 37 A. 129 : 13 A.L.J. 236 : 19 C.W.N. 393 : 17 M.L.T. 193 : 2 L.W. 303 : 21 C.L.J. 237 : 28 M.L.J. 556 : 17 Bom. L.R., 393; (1915) M.W.N. 581 : 42 I.A. 10 (P. C). and Sher Muhammed Khan V/s. Prabhu Lal 79 Ind. Cas. 41 : 46 A. 47 : 21 A.L.J. 801, a wajib-ul-arz is in the absence of intrinsic or extrinsic evidence to the contrary a prima facie evidence of the custom it records. It may, however, record a custom about certain matters and a contract as regards others. If it records a custom, the incidents of that custom and the occasion which would give an opportunity for its enforcement may be proved by its production or by external evidence or by both.