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Allahabad High Court
Sheikh Sahib Ali And Ors. vs Musammat Fatma Bibi on 9 November, 1909
Equivalent citations: 4 Ind Cas 138
Author: J Stanley
Bench: J Stanley, Banerji


John Stanley, C.J.

1. This appeal arises out of a pre-emption suit. The village of Arand prior to 1888 consisted of one mahal which was divided into thoks and pattis. On the 17th April 1888 partition proceedings were filed and the village was partitioned. A number of mahals were formed one of which, namely Mahal Muhammad Makki, is the subject-matter of this litigation. The plaintiff is not a co-sharer in this mahal but is a co-sharer in another mahal. The owners of Mahal. Muhammad Makki sold the entire mahal to the defendants and thereupon the suit was instituted. No new wajib-ul-arz was framed at the time of partition but the plaintiff relies upon the wajib-ul-arz which was prepared in the year 1883, which contains the following provision as to preemption, namely, “if any co-sharer in any patti wishes to transfer his property, then he shall do so first of all to his co-sharer in the khata, next to the proprietors of the putti, after that to the proprietors of the village, malikan deh.” The contention on behalf of the plaintiff is that no new wajib-ul-arz having been framed upon the recent partition, the provisions of the old wajib-ul-arz must prevail and that the plaintiff being proprietor (malik) of part of the village is entitled to pre-empt.

2. The Court below acceded to this contention holding that the case was governed by the ruling in Janki v. Ram Partab Singh 28 A. 286; 2 A.L.J. 833; (1906) A.W.N. 2.

3. As has beers often laid down, the determination of an alleged right to preemption must depend upon the particular circumstances of each case and the evidence adduced in support of the pre-emptive right. In the present case the plaintiff relies upon the words in the wajib-ul-arz, malikan deh, as strongly supporting her claim. We have, therefore, to ascertain what meaning is to be attributed to this expression in the wajib-ul-arz in question. I think that the key to its meaning is to be found in the language used in the heading to Chapter II, in which Chapter is to be found the provision as to pre-emption. The heading of this Chapter is rights of co-sharers, hissadar deh, as among themselves based on custom or agreement.” The words, co- sharers as among themselves, seem to bind the meaning of the word malikan deh to proprietors who are co-sharers with a vendor between whom and the vendor is a common bond. The plaintiff in this case is not such a co-sharer and, therefore, I think, cannot claim the benefit of the custom. The case is unlike that which was relied on by the Court below. Its facts also do not resemble those in the case of Sardar Singh v. Ijaz Husain Khan 28 A. 614; (1906) A.W.N. 134 in which upon partition a new wajib-ul-arz was prepared which was a verbatim copy of the old wajib-ul-arz. I would, therefore allow the appeal and dismiss the plaintiff’s suit. The view which I take does not conflict with that expressed in Govind Ram V. Masiuhallah Khan 29 A. 295; 4 A.L.J. 137; (1907) A.W.N. 89 inasmuch as in that case there was nothing in the wajib-ul-arz relied upon to qualify the meaning of the expression, hissadar an deh, as used in it.

Banerji. J.

4. I am of the same opinion. The plaintiff claims under a custom recorded in the wajib-ul-arz prepared in 1883-1884 when the village was an undivided village and consisted of only one mahal. Chapter II of the wajib-ul-arz, containing the clause relating to pre-emption, is headed “Haquq hissadaran bakhudha” (rights of co-sharers inter se). It is clear from this heading that the persons referred to in the clause were persons among whom existed the common bond of being co-sharers. The words, malikan deh, which appear in that clause bear in my opinion the same meaning as the words, hissadaran deh, in the wajib-ul-arz which formed the subject of consideration by a Full Bench in Dalganjan Singh v. Kalka Singh 22 A. 1. I am unable to distinguish this case from the case above mentioned. As held in that and other cases the decision of each case depends on the nature of the particular custom or contract on which it is founded. The ruling in Janki v. Ram Partab Singh 28 A. 286; 2 A.L.J. 833; (1906) A.W.N. 2 to which I was a party, has been relied on by the Court below apparently under the impression that it was held in that case that in every instance the owner of a share in one mahal is entitled to pre-empt a share in another mahal No such general rule was laid down in that case which was decided with reference to its own peculiar circumstances. The wajib-ul-arz relied on in that case was prepared after the village had been divided into two mahals. Having regard to that circumstance it was held that when the wajib-ul-arz conferred on a share-holder in the village the right of pre-emption, it was clearly intended that the right would attach to such a share-holder even though he was not a co-sharer in the same mahal. Those circumstances are absent in the present case. The custom recorded in the wajib-ul-arz relied on in this case cannot after partition apply to the altered state of things which has now come into existence. I agree in the order proposed.

5. The order of the Court is that the appeal is allowed, the decree of the Court below is set aside and the plaintiff’s Suit is dismissed with costs in both Courts including in this Court fees on the higher scale.

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