RAM PRASHAD MISSER Vs. BABU MAHADBO PARSHAD

JUDGEMENT

(1.) This appeal arises out of a suit to enforce a right of pre-emption in respect to a sale of shares in Seminar. The claim was based on custom. The evidence to prove the custom produced by the plaintiff, consists of an extract from the village wajib-ul-arz of 1833 and the whole of that for 1860.

(2.) Both the lower Courts have held that this evidence does not establish the alleged custom and have dismissed the suit. They hold that these two documents are records of contracts between the co-sharers and do not relate the existence of a custom. The sole ground of appeal is that this evidence has been misconstrued and that upon a proper construction they are clear evidence of the custom alleged. It is the old question of contract or custom. I have been led by the parties through what I may fitly describe as a bewildering maze of conflicting decisions.

(3.) The extract of the wajib-ul-arz for 1833 contains the preamble to that document and the clause relating to pre-emption. In the preamble the co-sharers set forth that the village is their ancestral property, that they desire to record the wajib-ul-arz and that after fully understanding the conditions stated therein they gladly accept them as binding on themselves. The claim relating to preemption is headed Mode of sale of transfer." It then sets forth that if a co-sharer wishes to transfer his share he must first, of all inform the other co-sharers in the village.