Kutina Bibi and Others vs Bikuntha Chandra Dutta and Others

G. Mehrotra, J.—This is a second appeal on behalf of the plaintiffs arising out of a suit for pre-emption brought by the present appellants. The trial court decreed the suit but on appeal the decision of the trial court was reversed.

The property set out in the schedule attached to the plaint originally belonged to three uterine brOrs. Mahajar Ali, Nazir Ali and Mafiz Ali. Mafiz Ali died leaving behind his two sons Motosin Ali (pro, forma defendant No. 11), and Abdul Latif (minor plaintiff No. 2) and Kutina Bibi (plaintiff No. 1) his wife as his heirs. According to the plaintiffs out of the properties belonging to Mafiz Ali, plaintiff No. 1 inherited one-eighth share and the two sons got the remaining seven-eighth share in equal shares. While the plaintiffs were owners is possession of their shares in the property belonging to Mafiz Ali, the pro forma defendant No. 11 and the other cosharers of the pattas who were impleaded as pro forma defendants 9 and 10, executed two Kabalas in favour of defendant No. 1 in respect of the land of Schedule attached to the plaint. In the kabalas the shares belonging to the plaintiffs were also included. The plaintiffs came to know that defendant No. 1 was intending to dispose of the property purchased by him. Md. Abdul Azij cousin of plaintiff No. 2 came to the house of the plaintiffs on 21st April 1952 along with Abdul Motin, Abdul Hamid, Md. Makmod Ali and Md. Abdul Rajak of Jabda and informed that on that day he went to Karimganj and there he came to know that defendant No. 1 had sold out the land of the schedule in favour of defendants Nos. 2 to 8 at Rs. 5,000/- under a registered kabala of that day. On hearing that the plaintiff No. 1 alleges that she made the necessary demands for herself and on behalf of her son for pre-empting the aforesaid sale.

The plaintiffs further alleged that the mouzas where the houses of the plaintiffs and the defendants were, situated were included within the Sylhet District before the partition of India and after the partition these villages have been included within the Cachar district. Amongst the Muslims o� Sylhet District the custom of pre-emption had been in vogue from the time immemorial and from the time immemorial the same custom is prevalent amongst the Hindus of Sylhet District. On these allegations the plaintiffs prayed for a declaration of their title in respect of the land of the schedule below by right of pre-emption after accepting Rs. 5,000/- from the plaintiffs as the value and further for delivery of khas possession. The suit for preemption relates to land measuring 3 hals 9 kedars 1 jaisthi 15 pans 15 gandas covered by various taluks and pattas.

The contesting defendants alleged that the suit had been filed at the instance of Abdul Aziz who was one of the prospective buyers and that no proper demands were made by the plaintiffs. It was further alleged by the contesting defendants that the entire suit land had been sold to their vendor, that is, defendant No. 1, by defendants Nos. 9 to 11 on 20th August 1950. The plaintiffs therefore, lost any right in the property by the aforesaid sale.... The plaintiffs not being cosharers, they were not entitled to claim any right of pre-emption.

The trial court framed a number of issues. The trial court observed that though in the body of the plaint the plaintiffs stated that their shares of the lands are included in the suit lands but in the prayer the plaintiffs have prayed for pre-emption of the entire lands sold to the defendants Nos. 2 to 8 and agreed to pay Rs. 5,000/- and they have not prayed for any declaration of their title in respect of their share of lands included in the sale-deed. Relying upon the cases of Mt. Zainab Bibi Vs. Umar Hayat Khan and Others, and Ladhi Bibi v. Masaddar Ali AIR 1949 GAU 81 the trial court held that 71 plots of lands have been sold in several taluks and pattas but the plaintiffs had interest only in, 61 plots and that they were cosharers in the six estates in the sixty-one plots and the total area of these sixty-one items are 3 hals 3 kedars 1 poa and 5 jainthis odd and the proportionate value of the land which the plaintiffs are entitled to pre-empt is Rs. 4,374/-. On this finding the suit was decreed.

On appeal the lower appellate court held ''that by the earlier sale of 1950 the plaintiffs lost their interest in the property, they ceased to be cosharers and so long as the sale of 1950 subsists, the plaintiffs have no right to pre-empt the subsequent sale made by defendant No. 1 in favour of defendants Nos. 2 to 8 on 21st April 1952. The cases referred to by the court below have been distinguished on the ground that they were cases where'' the plaintiffs were admittedly cosharers in the property and entitled to pre-empt and the only question was whether they could ask for pre-emption of the entire property sold or could claim'' partial pre-emption.

In the Assam case the further question decided was that even though there has been a partition by the cosharers, so long as the liability to pay land revenue remained joint, it gave right to the cosharers: in whose share the property sold had not fallen, to pre-empt on the ground that they still continued to be cosharers. This case does not apply to the facts of the present case and in my opinion the court below was right in holding that these cases are of no assistance to the plaintiff-appellants. So long as the sale deed of 1950 subsists and has not been set aside by a proper court and in a proper proceeding, the plaintiffs cannot claim to have any interest or to be cosharers in the property. Without claiming any relief for the cancellation of the aforesaid sale-deed and without establishing their possession as cosharers the plaintiffs could claim no pre-emption. It is not a case where the sale-deed of 1950 could be ignored and treated as void ab initio.

It is also significant to note that the plaintiffs claim no right to pre-emption in respect of the sale-deed of 1950. If they had claimed pre-emption In respect of the aforesaid sale-deed, the question as to whether the plaintiffs were cosharers and whether the sale-deed in respect of their shares was valid or not would have been examined. But the plaintiffs not having challenged the validity of that sale-deed of 1950, cannot now ignore that documents and claim pre-emption in respect of the later sale-deed as they have failed to establish their subsisting right us cosharers. In this view of the matter it may not be necessary to examine as to whether the custom alleged by the plaintiffs has been established.

The counsel for the respondents referred'' to paragraph 234 of "Principles of Mahomedan Law", Fourteenth Edition by D.F. Mulla which summarises the law on the point as follows: "All the three courts, however, are agreed that the seller and the pre-emptor should both be "Mahomedans." He contends that admittedly the seller in the present case was not a Mahomedan and therefore the plaintiffs had no right to pre-empt the sale in question.

Reference may be made to the case of Shri Audh Behari Singh Vs. Gajadhar Jaipuria and Others, In this case the suit was brought for enforcement of right of pre-emption in respect of an enclosed plot of land in the city of Banaras. The vendor and the vendee both were residents of Calcutta and the pre-emptor was a Hindu resident of the locality. He had claimed the right of pre-emption on the basis of custom. The defence taken was that the custom will be available in case the vendor and the vendee both are residents of the town. This contention was repelled by the Supreme Court on appeal.

It was held that a local custom of pre-emption-attaches to all the house properties situated within it and where a right of pre-emption rests upon custom it becomes the lex loci or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself The right of pre-emption is an incident of property and attaches to the land itself. It was also held that

when the existence of a custom under which the Hindus claim to have the same rights of pre emption as Muhammadans, in any district, is generally known and judicially recognised, it is not necessary to prove it by further evidence. A long course of decisions has established the existence of such custom in Bihar, Sylhet and certain parts of Gujerat.

The counsel for tire respondents has also tried to support the decision of the trial court on the ground that proper demands had not been made. As I have indicated above, in the view which I have, taken, it'' is not necessary to decide these points. In the result therefore, there is no force in this appeal and it is dismissed without costs.