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Allahabad High Court
Bandhu Ahir vs Bisheshar Rai And Ors. on 26 April, 1910
Equivalent citations: 6 Ind Cas 704 a
Author: Griffin
Bench: Griffin


Griffin, J.

1. This appeal arises out of a suit for pre-emption. The question raised in it is whether the entry in the wajib-ul-arz relied on as proof of a custom is evidence of a custom or of a contract. Both the Courts below have held that the entry in this wajib-ul-arz of 1860 is evidence of a contract and on this ground dismissed the suit. It is admitted that the entry relating to pre-emption in the wajib-ul-arz of 1860 is colourless, i.e., it might be read equally as a memorandum of contract or as a record of custom. This being the case, it would be necessary to hold, following the ruling in Majidan Bibi v. Sheikh Hayatan A.W.N. (1897) 3, that the wajib-ul-arz should be understood as the record of custom. The reason why the Courts below have held otherwise is that there is on the record a wajib-ul-arz of the year 1833, and it is said that the entry in that wajib-ul-arz relating to pre-emption is clearly record not of a custom but of a contract. The reason for this conclusion arrived at by the Court below is that the preamble of the wajib-ul-arz indicates that the conditions subscribed to by the co-sharers were conditions of a contract and a further reason for that conclusion is that there is a certain variation as to the conditions of the pre-emption between the wajib-ul-arz of 1833 and that of 1860. It would be easy to lay too much stress on the particular words used by the framers of the wajib-ul-arz; in my opinion, the mere use of the word iqrarnama does not point to the conclusion that the parties (sic) that all the entriesin the wajib-ul-arz (sic) be mere evidence of a contract. There is no doubt a certain variation, if it can be called so, between the entries in the two wajib-ul-arzes. In the wajib-ul-arz of 1833 it is stated that the sharih-daran-i-deh shall have a right of pre-emption. In the wajib-ul-arz of 1860 the several categories were set out in detail and certain co-sharers were given preferential rights over other co-sharers. A similar question was considered by this Court in Hublal Tiwari v. Ganga Sahai 6 Ind. Cas. 151 : 7 A.L.J. 519. In this case, the wajib-ul-arz of 1833 records a custom in general terms while the wajib-ul-arz of 1860 sets out the same custom in greater detail. In this view of the case, I am of opinion that the Courts below were wrong in holding that the custom of pre-emption does not exist in the village to which the parties belong. I allow this appeal, set aside the decrees of the Courts below, and remand the case to the first Court through the lower appellate Court with directions to re-admit it to its original number in the Register and dispose of it according to law. Costs will be costs in the cause.

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