Abbasi Begam vs Rustam Ali Khan

Sir John Edge, Kt., C.J. and Tyrrell, J.—This is a second appeal arising out of a suit for pre-emption brought upon a wajib-ul-arz. The appellant before us is the defendant. The wajib-ul-arz in question was framed in May 1874. It was not executed by any lambarddr or any of the co-sharers. It has not been shown that any person interested in the mah�l took any steps to challenge the correctness of the wajib-ul-arz before the settlement was confirmed by the Local Government, or indeed until the legality of the wajib-ul-arz was challenged by the defendant in this suit. Although, no doubt, it would have been better if the wajib-ul-arz had been attested by the lambardar or lambardars, if any, and by the co-sharers, or some of them, we cannot, at this distance of time, and having regard to the fact that the correctness of the wajib-ul-arz remained all these years unchallenged, hold that it is not prim� facie evidence of the village rights and customs recorded in it. The next question is, what is the meaning of the particular clause which relates to pre-emption? That clause is as follows:-- "When any mu�fidar in the patti desires to transfer his share, then first a shareholder in the patti takes it; and if he does not take it, then another man who desires to take it takes it." "We cannot construe the clauses in a wajib-ul-arz as if they had been carefully prepared by a conveyancing counsel. We must try to find what was probably meant, so far as we can. Now, we think this clause shows that there was a local village custom of pre-emption, and that by that custom any shareholder in the patti was entitled to buy in preference to an outsider and that the custom was not the custom of the Muhammadan law, pure and simple, but partook of the character ordinarily found in wajib-ul-arzes, and that it was the duty of the shareholder desiring to transfer to give a co-sharer an opportunity of purchasing. Every wajib-ul-arz has to be construed, so far as is possible, on its own wording. Few wajib-ul-arzes which have come before us are worded precisely alike. This wajib-ul-arz in question was anterior to the issue of the rules to settlement officers of 1875. We accordingly, holding the views we do, dismiss this appeal with costs.