LALA CHANDRABHAN LALL Vs. MANIK PANDEY

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption. The right of preemption is sought to be exercised in respect of a usufructuary mortgage. The Court of first instance dismissed the suit. The lower appellate Court has decreed it. The evidence of the custom was an extract from the wajib-ul-arz of 1881, although the village is permanently settled, the old wajib-ul-arz was not given in evidence. The extract from the wajib-ul-arz of 1881 is to the following effect: The custom of pre- emptiom exists when any co-sharer desires to transfer his share etc." Then follows the usual statement as to the persons who have a pre-emptive right. In the present case the plaintiff has a right as against the defendant provided that there is a custom of preemption extending to usufructuary mortgages. It must be noted that the wajib-ul-arz does not in express terms refer to mortgagors. Witnesses were examined and amongst others the plaintiff and the transferees. Further all the witnesses seem to have admitted that they have heard of pre-emption in the village in the case of a mortgage. The Court of first instance says : The plaintiff himself is an old man and so is the father of the transferee. Both these and the witnesses admit that within their recollection there has not been a single case of pre-emption of a mortgage. The plaintiff certainly gave no evidence of pre- emption in the case of mortgages." I was for some time under the impression that the present case was a case of a simple mortgage and had that been the true state of affairs, I should have been prepared to hold that the plaintiff had not proved a custom of pre-emption in the village extending to the case of simple mortgagor. In pre-emption cases it is specially necessary for the plaintiff to prove his case by producing evidence of the existence of the custom or contract by virtue of which he seeks to pre-empt. I find, however, that the mortgage is not a simple mortgage but a usufructuary mortgage. A usufructuary mortgage means the introduction of a stranger into the co-parcenary body. A usufructuary mortgage may and in many cases does last for a very long period of time. After fully considering the matter I see no sufficient reason for interfering with the decree of the Court below. The word intiqual "is quite sufficiently wide to include a transfer by way of usufructuary mortgage and in the case of Ram Narain V/s. Ganga Ram A.W.N. (1908) 19 : 4 A.L.J. 814 I held in a case, very like the present that the custom would extend to a mortgage by conditional sale. I dismiss the appeal with costs including in this Court fees on the higher scale.