RAJENDRA KISOR SARAN SINGH Vs. DRIBRAHIM HUSAIN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for pre-emption. The shares in eleven villages were sold under a sale-deed dated the 9 of February, 1921, by Bhagwati Saran Singh who has not been impleaded. These eleven items of properties were sold for Rs. 12,500, the prices of these are not separately specified but the Government revenue and cesses against them are mentioned in the sale-deed about which there is no dispute. Both parties admit that there is no evidence on the record to indicate the total profits of all the eleven items of properties. The Court below has decreed the claim for pre-emption with regard to two villages. The plaintiff in appeal claims one more village, Faridpur, by pre- emption. He also challenges the accuracy of the calculation of the sale price with regard to one village which has been decreed to him.

(2.) So far as the question of pre-emption is concerned we have only to deal with the village of Faridpur. There was an entry of the right of pre-emption in the wajib-ul-arz for the year 1282F. corresponding to 1875 which raises a prima facie presumption that co-sharers are entitled to pre-empt sales as against strangers. The learned Subordinate Judge has conceded that there was such a presumption and that, therefore, such a custom existed about the year 1875. He has, however,held that this custom ceased to exist about the year 1880, because at that time the old village was partitioned into several mahals and one mahal called Sheo Shankar Singh came to be owned exclusively by Sheo Shankar Singh's family. The share sold in the present suit is situated in this mahal, Sheo Shankar Singh. The learned Judge has applied the principle laid down incases like that of Kamer-un- nissa Bibi V/s. Sughra Bibi 40 Ind. Cas. 427 : 15 A.L.J. 422 : 39 A. 480, where it has been held that if a whole mahal comes to be owned by a single proprietor, the custom must be deemed to have been extinguished. This ruling, however, is not applicable to the present case for in the present case the whole of the mahal did not come to be owned by a single proprietor but, in fact, was owned by one joint family consisting of several members. As laid down by a Bench of this Court in the case of Babban Panday V/s. Lachhman Chaudhri 70 Ind. Cas. 584 : 22 A.L.J. 62 : 46 A. 205 : A.I.R. 1924 All. 371 : L.R. 5 A. 33 Civ. "it is not correct to say that if it is shown that certain property in the course of time becomes the exclusive property of an entire family, any custom relating to pre-emption must necessarily lapse. The true doctrine is that if the custom of pre-emption exists and if it so happens that the property to which it relates eventually comes into the hands of a single individual proprietor, the custom is there and then extinguished. That, however, is not the case, here, for, as we have pointed out, in the application which was made in the year 1837, the applicant stated that there were other people who were co- sharers with himself." We feel that there is no justification for extending the rule made applicable to single proprietors to cases of joint Hindu families. The learned Vakil for the respondents has riot been able to cite any ruling in support of the view taken by the learned Subordinate Judge. We must, therefore, hold that the custom of pre-emption did not cease to exist in consequence of Mahal, Sheo Shankar Singh being owned by one single Hindu family. The only other question that remains is the calculation of the price which the plaintiff should pay for the three villages in respect of which his suit succeeds. As already remarked, there is no reliable evidence to show the total profits of all the eleven item's of properties. In the absence of such evidence the only correct criterion for calculation is tip, Government revenue and cesses assessed against each. It appears that the total Government revenue, and cesses assessed on all the eleven items of properties come to Rs. 292-14-4; and the total Government revenue and cesses on the three properties, with regard to which the suit succeeds, namely, Faridpur Sarai Jai Ram and Qasim pur, come to Rs. 134-7-3. The plaintiff must, therefore, pay the proportionate price calculated on the basis of Government revenue and cesses. This comes to Rs. 5,738.

(3.) We accordingly allow this appeal, modify the decree of the Court below and decree the plaintiff's claim for pre-emption of the shares in villages Faridpur, Sarai Jai Ram and Qasimpur on payment of Rs. 5,738 within two months from this date. The plaintiff must deposit the balance of the sale consideration within two months from this date. In case of payment within the time allowed, the suit will be decreed with costs in all Courts including in this Court fees on the higher scale. In case of non-payment within the time allowed the whole suit shall stand dismissed with costs in all Courts including in this Court fees on the higher scale.