Abdul Karim And Ors. vs Gauri Shankar And Ors. on 7 January, 1927

Allahabad High Court
Abdul Karim And Ors. vs Gauri Shankar And Ors. on 7 January, 1927
Equivalent citations: AIR 1927 All 788


1. Both these appeals arise out of two pre-emption suits. The defendants-appellants in both appeals are Abdul Karim and others. They were impleaded in both suits for pre-emption on the ground that they were the perpetual lessees of 33 bighas of sir land included in a four-anna share which was sold to the vendees under a deed of sale executed by Raja Madho Lal on the 21st December 1921. The perpetual lease in favour of these appellants were executed by Raja Madho Lal on the 4th October 1921. The lease was granted in consideration of a premium of Rs. 1,000. The document of lease reserved an annual rent of Rs. 100 per annum.

2. The pre-emptors came into Court alleging that the two transactions, dated the 4th October 1921, and the 21st December 1921, were in fact part and parcel of one transaction of sale, and they sought pre-emption on that footing. The Subordinate Judge who tried the suits was apparently in some doubt as to whether it could properly be held that the transactions by way of lease and sale amounted in fact to a transfer by way of sale which was split up into two transactions in order to avoid a claim for pre-emption. He found, however, that in any case under the custom of pre-emption, as recorded in the village the plaintiffs could pre-empt the lease. The language of the wajib-ul-arz shows that the custom of pre-emption in this village can be exercised in cases of all transfers (intiqal) of property. We think on the terms of the wajib-ul-arz this decision of the Subordinate Judge cannot be questioned. The word ‘intiqual’ as has been held by this Court, is a word of wide import and would certainly include a transfer by way of perpetual lease [Lalji Misir v. Jaggu Tiwari [1911] 33 All. 104]. In our opinion, the defendants-appellants cannot be heard to maintain that under the custom of pre-emption prevalent in this village their perpetual lease was not liable to pre-emption. We dismiss the appeals with costs.

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