Kandhaiya Lal vs Jasoda Nand and Another

Straight and Knox, JJ.—This was a suit for pre-emption and the vendee is the appellant. The plaintiff is an admitted co-sharer within the terms of the wajib-ul-arz and the defendant is a stranger. The terms of the wajib-ul-arz are as follows, under the head of "custom for pre-emption":-- "At the, time a proprietary share is transferred a right of purchase will vest, first, in a co-sharer of the same family, that is, of the vendor, and then in the other co-sharers of the village, in preference to a stranger, provided that the same price is paid by the co-sharer as is offered by the stranger." The Court below has decreed the claim, and it is contended by Mr. Banerji on behalf of the vendee-appellant that this passage in the wajib-ul-arz merely defines the parties entitled to enjoy the custom of pre-emption and that it does not specify or define the custom, which must be looked for in the Muhammadan law, which law, in the absence of contractor custom to the contrary, supplies the custom. In support of this view, he called our attention to the case of Ram Prasad Vs. Abdul Karim, which was a considered judgment of the learned Chief Justice and my brother Mahmood. It seems to me that that case is clearly distinguishable and that the language used there in the wajib-ul-arz is wholly different from that used here. There the words of the wajib-ul-arz were--"the custom of pre-emption prevails according to the usage of the country," and, as I understand the learned Chief Justice, there was no evidence in that cause beyond the declaration contained in the wajib-ul-arz of what the nature of the custom was, and the learned Chief Justice therein said, what I entirely agree in, namely, that where such general terms are used, the custom that must be looked for is that custom which mostly prevails, viz., the custom as recognised by the Muhammadan law. But in the present case it appears to me that the wajib-ul-arz itself defines and declares what the custom is, and that within the four corners of the paragraph to which I have called attention the mode in which that custom is to be exercised and regulated is specifically fixed, in other words, that the right of pre-emption vests primarily in the co-sharer ek jaddi, and secondly in the co-sharer of the village, and that as to both of them there is this proviso that they must give the same price for the property sold as a stranger was prepared to give for it. The interpretation that I have placed upon the case of Ram Prasad Vs. Abdul Karim, is consistent with what the learned Chief Justice himself said in Husain Khan v. Umedi Bibi Weekly Notes, 1889, p. 192 and in unison with the remarks of Mahmood, J., in Muhammad Rustam Ali Khan v. Niadar Singh Weekly Notes, 1886, p. 114. I therefore think that the claim of the plaintiff was rightly decreed, and he was entitled to pre-empt the property in suit. While dismissing the appeal with costs, we direct, in accordance with the rule laid down in the recent Full Bench of this Court, that the time for the payment of money be extended to the 1st of August 1891, and the decree will declare that if the money is paid in by that date, the plaintiff will get the property, and if the money be not paid by that date, the plaintiff''s suit will stand dismissed with costs. To leave no doubt upon the question, I think it well to add that in the event of the money being paid in by the specified date, the plaintiff will have his costs in all the Courts.