UMRAO SINGH Vs. MTMOHAN KUNWAR

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for preemption. A number of grounds are taken in appeal which I proceed to consider seriatim. The first point is that the Court below has erred in applying the provisions of the Agra Pre-emption Act. This contention is well-founded. The sale-deed was executed on the 23 June 1922, long before the new Act came into force. As held in the case of Sarju Prasad V/s. Bhagwati Prasad the Agra Pre-emption Act came into force on the 17th February 1923. Section 12, C1s. 1, 2 and 3, relied upon by the Court below in its finding on issue 1, have therefore, no application. The second ground of appeal challenges the finding as to the existence of custom and is intended to deny the preferential right of the present plaintiff, Mt. Mohan Kunwar. The third ground asserts that the entry in the wajib-ul-arz of 1872 was a record of contract which has ceased to have any binding effect after the expiry of that settlement.

(2.) The evidence in support of the custom of pre-emption consists of entries in the wajib-ul-arzes of 1269 and 1281 F. Under para. 22 of the first wajib-ul-arz an offer has first to be made to a near brother, and if he refuses to take it then to the lambardar of the other thok, and, if he refuses to take it, to anyone else. Under para. 18 of the second wajib-ul-arz the first offer has to be made to jaddi co- sharers, and if they refuse to take the property then to the proprietors of the village and if they also refuse to take it then to anyone else. Though there are slight differences in the two categories I do not think that these two records are contradictory. Under the first wajib-ul-arz it might not have been intended that a near brother would have the first right even though he was not a co-sharer. In any case there was nothing strange if subsequently the right of relations was limited and made conditional on their being co-sharers. I therefore think that the presumption of custom raised by the entry in the wajib-ul-arz of 1281F has not been rebutted by anything in the earlier wajib-ul-arz, and that a custom exists.

(3.) In this connexion I should like to dispose of the contention raised on behalf of the respondents, that even if the record were not one of custom it would, under the Full Bench case of Aulad Ali V/s. Ali Athar , bind the present parties. Even if we assume that the original parties to the contract of 1281 F were dead, and their representatives were Sheobaran Singh, the original plaintiff, and Bhup Singh, the vendor, the contract would not be subsisting after the expiry of the settlement. No doubt in the Full Bench case the agreement had provided that the executants can transfer the properties among themselves, that is, one executant can transfer it to the other and that in case of transfer to another person the other executant will acquire it by pre-emption, and yet the Pull Bench held that the offer had to be made, not only to the executant, but to their representatives also. Even though Shah Nasiruddin, the vendor in that case, was himself a party to the contract, and the pre-emptor was a representative of the other party, the Bench have not laid any stress on this fact but have laid down that such a contract of pre-emption binds the parties and their representatives. No contention appears to have been at all advanced that on a true interpretation of the document in dispute in that case it was the intention to confine the right to the parties only. It was assumed that it did not. In cases where the contract is for a fixed period of settlement the ordinary intention is that the agreement would last during that period only, and I am unable to hold that the Full Bench case is any authority for the proposition that even when on a true interpretation of an agreement, the contract is limited to a fixed period of time, it will bind the representatives of the parties for all time to come. The point considered by the Full Bench was the question of law whether the agreement bound the representatives, and not the interpretation of the deed of agreement. In the case of Mirza Muhammad Jan V/s. Sheikh Fazl-ud-din A.I.R. 1924 All. 657 I had expressed the dissenting view that a contract of pre-emption was a contract in personam which would bind the parties thereto, and though in case of a breach by either of them it could be enforced against his representatives, neither party had any power to contract on behalf of his descendants that they should make an offer to the descendants of the other party before transferring the property to a stranger. In my opinion there was a difference between a contract entered into by the parties for themselves and one entered into on behalf of their descendants, as the breach in the latter case would be a breach committed not by any party himself but by his descendants. I had thought that such a contract could not bind an indefinite class of descendants, generation after generation, and to bind them for an indefinite length of time. It is that view which has been overruled by the Full Bench. Where however the intention of the parties that the contract should remain in force between themselves only, or only for a fixed period of time, is quite clear from the language of the document itself and the attending circumstances, it cannot be held that the contract nevertheless remains in force for all time to come and for all generations.