MOHAMMAD BASHIR KHAN Vs. MTKULSUM BIBI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption of shares sold in two mahals in village Mohammadpur Kalan. The property was transferred under a sale-deed dated the 16 of February 1923, which was presented for registration on the same date, but was actually registered on the 17 of February. The plaintiffs came into Court both on the ground of Mahomedan Law, the custom of pre-emption, and the provisions of the Agra Pre-emption Act of 1922. No evidence was led as regards the performance of any talab, and the case so far as it was based on the Mahomedan Law was apparently not pressed. The Court below has held that the transfer took place before the coming into force of the Agra Pre- emption Act and is therefore not governed by the new Act. It has also held that inasmuch as there were single proprietors in both mahals at the time when the wajib-ul-arzes recording an entry of a right of pre-emption were prepared, there could be no custom, nor even any contract. The suit was accordingly dismissed.

(2.) In appeal it has not been pressed before us that the entry made at the time of the settlement when there were single proprietors in both the mahals could in any sense be the record of a custom of pre-emption, or a binding contract between co- sharers. The only point alleged is that the case is governed by the new Act. The learned vakil for the appellants argues that inasmuch as under Art. 10 of the Limitation Act the period fixed for suits for pre-emption is one year from the date of the registration of the document, the cause of action to institute a suit arises only when the registration has been effected. He therefore argues that it must be supposed that the present transaction was complete only when the registration was effected.

(3.) It is not disputed that the new Act came into force on the 17 of February 1923. In fact this has been clearly so held in the case of Sarju Prasad V/s. Bhagwati Prasad .