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Allahabad High Court
Badri Nath vs Musammat Mantorna Kuwari And Anr. on 9 June, 1909
Equivalent citations: 2 Ind Cas 623
Author: K Husain
Bench: K Husain


Karamat Husain, J.

1. The suit out of which this appeal arises was for pre-emption on the basis of custom alleged to be embodied in the wajib-ul-arz of 1873. Both the Courts below have dismissed the suit on the ground that the wajib-ul-arz is only a record of a contract and not of a custom. The lower appellate Court in arriving at this conclusion has relied upon a robkar of the Settlement Officer. The following are the remarks of the learned Judge. “The Settlement Officer has recorded a proceeding dated the 12th of July 1875 in which he has explained that where no custom was ascertained but the co-sharers agreed to certain matters being recorded in the wajib-ul-arz the word “ainda” or “in future” has been added. There is thus no doubt that the condition as to pre-emption was not based on previously existing custom.” The plaintiff has preferred a second appeal to this Court and the following points have been argued by his learned vakil. (a) The robkar dated 12th July 1875 is not admissible in evidence because it was not prepared by the Settlement Officer in the discharge of his Official duty. 34 C. 1059 That the wajib-ul-arz independently of the robkar dated the 12th July 1875 is a record of a custom and not of a contract. In support of his first contention the learned vakil for the appellant relies on Madhavrao Appaji Sathe v. Deonak 21 B. 695. Ali Nasir Khan v. Manik Chand 25 A. 90. In support of this second contention the learned vakil for the appellant relied on Majidan Bibi v. Sheikh Hayatan 1897 A.W.N. 3; Sewak Singh v. Girja Pande 2 A.L.J. 6; Baldeo Sahai v. Nagai Ahir 1907 A.W.N. 17. The learned Advocate for the respondents in answer to the objection to the admissibility of the robkar dated 12th July. 1875 says that it is too late for the appellant to raise that objection and in support of this proposition he relies on Shahzadi Begam v. The Secretary of State for India 34 C. 1059. Their Lordships in that case on p. 1074 observed “their Lordships are further of opinion that it is now too late for the respondent to take an objection to the admissibility of a document which was received without objection at the trial.” He also relies on Rana Karan Singh v. Mangal Sen 1 A.L.J. (Rep. Diary) p. 224 where a Division Bench of this Court is reported to have held that ‘ questions regarding the admissibility of documents in evidence must be decided at the time when those documents are tendered and not left over till the judgment in the case.” He further says that the robkar is a robkar of a Settlement Officer and that under Section 114 ill. (e) of the Indian Evidence Act the presumption is that it was drawn up in the discharge of his official duty and that in the absence of proof to the contrary which the appellant was bound to adduce that document must be regarded as drawn up by the Settlement Officer in the discharge of his official duty. He also says that the robkar is to be taken as a supplement or postscript to the wajib-ul-arz and is thus relevant under the provision of Section 35 of the Evidence Act. I allowed the learned vakil for the appellant to argue whether the robkar is or is not admissible but considering the terms of that robkar I am of opinion that it was dictated by the Settlement Officer in the discharge of his official duties’ and that it is admissible in evidence. That robkar being admissible in evidence the view taken by the Courts below that the wajib-ul-arz records a contract and not a custom is the only reasonable construction which may be placed on the wajib-ul-arz. The pre-emption clause in the wajib-ul-arz in question begins with the word ainda and that word according to the robkar is only used with reference to those conditions which were agreed upon by the zamindars. In S.A. No. 953 of 1908 decided by my brother the Hon’ble Mr. Justice Griffin on the 7th June 1909 the wajib-ul-arz began with the term ainda and there was also a robkar of the Settlement Officer containing a passage to the following effect “as far as possible the customs which have existed hitherto have been recorded but whenever the co-sharers have agreed that certain conditions are to be binding on them in future the word ainda has been used.” That wajib-ul-arz was construed to record a contract and not custom. The view taken by my learned brother is perfectly right. The wajib-ul-arz in the case before me read in the light of the robkar dated 12th July 1875, in my opinion, is undoubtedly a record of a contract and not of a custom. The appeal, therefore, fails and is dismissed with costs including fees in this Court on the higher scale. I may note that this case has been very ably argued on both sides.

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