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Bombay High Court
Sheobaran Singh vs Kulsum-Un-Nissa on 4 March, 1927
Equivalent citations: (1927) 29 BOMLR 877
Author: V Dunedin
Bench: V Dunedin, J Wallis, L Sanderson


Viscount Dunedin, J.

1. In this case, pre-emption in a share in a village is claimed by a co-sharer as against the buyer from the assignee in bankruptcy of another co-sharer. The claim was decreed by the Subordinate Judge, but his judgment was reversed and the case dismissed by the High Court of Allahabad on appeal.

2. There was another like suit by another co-sharer.

3. The circumstances are these. Rai Bahadur Shri Kishan Das was a co-sharer of the plaintiff and others in the” village of Peotha Gokalpur. On September 26, 1913, he was declared insolvent by the Bombay High Court, and all his property, including the share in question was vested in the Official Assignee of Bombay. The Official Assignee put up the property for sale at Aligarh by public auction on November 8, 1914. A bid was made but was not accepted by the Official Assignee, and the sale was re-advertised for December 6, 1914. A bid of Rs. 40,000 was made by one, Sheoraj Singh, and he was declared purchaser, subject to confirmation by the Official Assignee. On the next day the auctioneer received a private offer of a greater amount. The result of the private offer was that the property was sold privately for Rs. 41,000 to a purchaser, since dead, who is represented by the respondents. The plaintiff and appellant alleges that there was in this village a customary right of pre-emption among the co-sharers, and that he is entitled to have that right made good. It was objected by the respondents that the appellant ought to have exercised his right of pre-emption by bidding at the sale. There was a good deal of discussion as to whether the right of pre-emption was always open until a concluded sale, or whether the person in right of pre-emption, if he finds the property is going to be exposed to public sale, is bound to go there and bid. It is unnecessary to consider this matter for this reason, that it appears that what was put up at the auction was not the property pure and simple, but the property plus arrears of rent all in one lot, so that the only sale of the property pure and simple was the private sale, of which, admittedly, the appellant had no notice.

4. The further defence was twofold and consists of two parts : (1) A denial of the custom of pre-emption in the village; (2) an argument that if such pre-emption is assumed or proved, it does not operate against the purchaser at a sale from an Official Assignee in bankruptcy.

5. As to the custom of pre-emption, the Subordinate Judge held this proved. The High Court did not enquire as to whether this was so or not; they decided in favour of the respondents in the second point on the assumption that the custom was proved. Before this Board, however, the respondents strongly urged no custom had been proved.

6. Admittedly, the proof in favour of the custom is provided only (for oral testimony may be disregarded) by an entry in the Wajib-ul-arz of the village, which is as follows :-

‘Wajib-ul-arz,’ of mauza Piplot Gokulpur, pargana Koil, district Aligarh, prepared in 1280 Fasli.

Paragraph 18.-As to the transfer of property and the right of pre-emption-Each co-sharer is entitled to transfer his property, but he should transfer it first to a co-sharer the descendant of a common ancestor, and in case of refusal on his part to other co-sharers in the village, and if they also do not take it, then to any one he may like. If there be any dispute between the transferrer and the person having a right of pre-emption as to the amount of price, then it will be decided with reference to the rate at which property is sold in the neighbouring villages.

7. The respondents argued that a Wajib-ul-arz alone is not sufficient, and that the present entry does not actually mention custom, and may, therefore, refer to contract and not to custom.

8. The weight to be given to entries in Wajib-ul-arz has been considered on more than one occasion by this Board.

9. In the case of Digambar Singh v. Ahmad Sayeed Khan (1914) L.R. 42 I.A. 10: s.c. 17 Bom. L.R. 393 the custom of pre-emption was held good, and it was laid down that a statement in the Wajib-ul-arz of a village that there is a custom of pre-emption, which is not in contravention of law, is good prima facie evidence of the custom, without corroborative evidence of instances, in which it has been exercised. And upon the entry in the Wajib-ul-arz alone, the custom was held proved.

10. In the case of Balgobind v. Badri Prasad (1923) L.R. 50 I.A. 196: s.c. I.L.R. 45 All. 413 though it was a case where it was sought actually to alter the law of inheritance, nevertheless, their Lordships said this (p. 418):-

When it is not shown by reliable evidence that the Settlement Officer neglected to perform his duty or was misled in recording a custom, and it does not appear that the statement of the custom is ambiguous, the record in a Wajib-ul-arz of a custom is most valuable evidence of the custom, much more reliable evidence than subsequent oral evidence given after a dispute as to the custom has arisen.

11. They found the custom proved.

12. The respondents appealed to the case of Anant Singh v. Durga Singh (1910) L.R. 37 I.A. 191: s.c. 12 Bom. L.R. 504, where an alteration of the law of inheritance was held not proved, but the ratio decidendi is clearly given in the judgment of the Board, where it is said (p. 508):-

Where, as here, from internal evidence it seems probable that the entries recorded connote the views of individuals as to the practice that they would wish to see prevailing rather than the ascertained fact of a well-establised custom, the learned Judicial Commissioners properly attached weight to the fact that no evidence at all was forthcoming of any instance in which the alleged custom had been observed.

13. The respondents sought to say that the entry here was ambiguous and to criticise it on the ground that it did not use the word “custom,” and therefore might be a record of either a contract or mere wish and intention. On this point their Lordships wish to refer to a very valuable judgment by Chamier J. in a Full Bench judgment in the case of Returaji Dubain v. Pahlwan Bhagat (1910) I.L.R. 33 All. 196, F.B. He points out that the terms of the circulars show that the revenue authorities meant customs of pre-emption to be recorded in brief and general terms, and he sums up the situation thus (p. 216):-

We have all of us seen wajib-ul-arzes which contain provisions which ought not to be in them. In some, no doubt, language may be found which shows clearly an attempt to create a right of pre-emption. In others, there is an obvious contract between the co-parceners for a right of pre-emption. But where the contrary is not shown, a provision in a wajib-ul-arz relating to preemption should bo presumed to be the record of a custom, and this rule has been affirmed repeatedly by this Court.

14. It is also to be kept in view that it is easier to hold established a custom, which, as here, only proves a well-recognised adjunct to the ordinary law, than it is where the law is said to be actually altered, as, e.g., in the case of a change in the rule of the succession. In the present case their Lordships have no doubt that the entry in the Wajib-ul-arz is a record of custom, and they hold the custom proved.

15. Turning now to the second point, which affords the ground of judgment in the High Court. Their ratio decidendi is really contained in a single sentence :-

Now, in the circumstances of the present case, this being the custom, it is clear that no co-sharer has sold his share at all.

16. And again:-

We find it impossible to hold the view that a village custom which refers only to a voluntary sale by one co-sharer of his property can in any way apply to the case of an involuntary sale carried out against his wishes by a Court through a Collector or an Official Assignee, or anybody else.

17. With deference to the learned Judges, it seems to their Lordships that this overlooks one of the fundamental principles of all arrangements for the realisation and distribution of a bankrupt’s property. In every system of law the term may vary, but in all there is an official, be he called an assignee or trustee, or any other name, and that official is by force of the statute invested in the bankrupt’s property. But the property he takes is the property of the bankrupt exactly as it stood in his person, with all its advantages and all its burdens. The working out of the view taken by the learned Judges would lead to curious results. After all, in a custom of pre emption there is, so to speak, a debtor and and creditor side : the debtor side is the obligation of the holder of the share to offer it to a co-sharer; the creditor side is the right of the co-sharer to buy. The property, if fettered, would be presumably somewhat less valuable than if it were free. But if the view of the learned Judges were right, the bankruptcy of A would have the double effect of forfeiting something belonging to B and of rendering the property of A more valuable in the hands of his official assignee than it was in his own.

18. It was pointed out that a sale in execution of a decree transferred the property free from a claim of pre-emption. The reason is simple. The Code of Civil Procedure arranging for sale under a decree mentions and deals with rights of pre-emption and gives those who hold them certain rights. Now whenever a statute deals with certain rights it is easy to conclude that it deals with the total ambit of those rights and leaves nothing standing outside the provisions of the statute. An illustration of this doctrine may be found in the case of Att. Gen. v. De Keyser’s Royal Hotel [1920] A.C. 508. As an illustration of how there is no privilege of person may be taken the case of The Collector of Futtehpore v. Syud Tad Ali (1866) 1 Agra 88, where the Government as standing in right of a convict had to submit to the right of pre-emption. Just, therefore, as if the conveyance had been made to an individual, that individual would have had at once the disadvantage and the privilege of the custom of pre-emption, so the Official Assignee was in the same position and could only sell what he got.

19. Their Lordships will therefore humbly recommend His Majesty that the appeal should be allowed and the judgment of the Subordinate Judge restored, the appellant to have his costs before this Board and in the Court below.

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