HAR LAL SINGH Vs. RUDRA SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for pre-emption of property sold to three vendees under a sale-deed, dated the 23 January 1922. On the 12th January 1922, the present suit for pre-emption was instituted in which all the three vendees were impleaded. Later on it was discovered that one of the vendees was a minor and on an application made by the plaintiff's a guardian and litem was duly appointed by the Court. This appointment, however, was after the expiry of one year from the date of the registration of the document. The plaintiff relied on the wajib-ul-arz of 1870 and alleged that it recorded a custom of pre-emption. He also disputed the genuineness of the amount of consideration mentioned in the sale-deed. The defendants, on the other hand, pleaded that the claim as against one, and, therefore, as against all, was barred by limitation, and also that there was no custom, of pre-emption in the village. They further pleaded that the consideration set forth in the sale-deed was true

(2.) The learned Subordinate Judge, in a very short judgment, has disposed of only, two issues leaving the others undecided. He has held that inasmuch as the guardian and litem of one of the defendants was appointed after the expiry of the period of limitation the claim was barred by time as against him. He has held that having regard to the language of the wajib-ul-arz no custom was established.

(3.) We are unable to agree with either of the views expressed by the Court below. It is difficult to see how the claim can be barred by limitation. The real parties to the suit were the vendees themselves and all of them were impleaded within the time allowed. The more fact that the guardian of one of the vendees was not appointed by the Court till after the expiry of the period would in no case be fatal. Under Order 32, it is the duty of the Court, when it is brought to its notice that one of the defendants is a minor, to appoint a guardian, and as has been held in the case of Rup Chand V/s. Dasodha [1907] 30 All. 55 the subsequent appointment of a guardian is not fatal as a plea of limitation. As regards the question of custom the only evidence in support of it is the wajib-ul-arz of the year 1870. This settlement expired about the year 1900 when the new wajib-ul-arz under the Circular of the Board of Revenue could not contain an entry either way. The heading of para. 8 which embodies a right of pre-emption is as follows: Relating to transfer of, property by means of mortgage, sale, gift, inheritance and custom of pre-emption.