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Kumar Digambar Singh v. Ahmad Sayeed Khan
Factual and Procedural Background
This appeal arises from a suit instituted on 6 August 1910 in the Court of the Subordinate Judge of Aligarh by Kunwar Digamber Singh (the appellant) against Kunwar Ahmad Sayeed Khan (the respondent) and one Bhawani Das seeking to enforce a claimed right of pre-emption under a custom alleged to prevail in mouza Pala Kher, District Bulandshahr.
The sale in respect of which pre-emption was claimed occurred on 12 July 1909. In 1905 mouza Pala Kher was partitioned into five mahals (including Saligram / Salig Ram and Bhawani Das). The property sought to be pre-empted lay in mahal Bhawani Das; at the date of sale the appellant was a sharer in mahal Salig Ram and had no share in Bhawani Das. The vendor was Bhawani Das; the respondent was the vendee and a mortgagee in possession of part of Bhawani Das's share in that mahal.
Evidence relied on by the appellant comprised extracts from wajib-ul-arz (village settlement records) of mouza Pala Kher dated 16 June 1863 and 1870 and a 1875 judgment of the Subordinate Judge of Meerut later confirmed by the High Court at Allahabad in 1876. The Subordinate Judge of Aligarh originally found a custom of pre-emption and on 28 March 1911 decreed for the appellant. The respondent appealed to the High Court at Allahabad, which allowed the appeal and dismissed the suit. The present decision is from the Board (Privy Council) on the appellant's further appeal.
Legal Issues Presented
- Whether a custom of pre-emption that existed in an unpartitioned mouza (as evidenced in the wajib-ul-arz of 1863 and 1870) survives a perfect partition of the mouza into separate mahals so as to give a sharer in one of the new mahals the right to pre-empt a sale in another mahal in which he is not a sharer.
- Whether the clauses relating to pre-emption in a wajib-ul-arz constitute prima facie evidence of a custom of pre-emption in the mouza (and what weight should be given to such documentary evidence absent corroborative instances of enforcement).
Arguments of the Parties
Appellant's Arguments
- The appellant relied on a custom of pre-emption alleged to prevail in mouza Pala Kher and offered as proof extracts from the wajib-ul-arz of 1863 and 1870 and a prior judgment (Meerut 1875; High Court confirmation 1876) showing that a custom existed by which relations of a vendor-sharer could pre-empt sales to strangers.
- Implicit in the appellant's case was the contention that the custom shown by those documents continued to give him a right to pre-empt the sale despite the 1905 partition.
Respondent's Arguments
- By written statement the respondent denied that any custom of pre-emption existed in mouza Pala Kher.
- The respondent asserted that mouza Pala Kher had been divided by a perfect partition and that, after partition, "no connection of any kind was left among the co-sharers of the different mahals, nor did any joint right, based on the terms of any wajib-ul-arz, subsist among them." (quoted from respondent's pleading as reproduced in the opinion).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dalganjan Singh v. Kalka Singh, [1899] 22 All. 1 = 1899 A.W.N. 111 (Full Bench) | Establishes that the question whether a pre-existing custom applies after partition depends on construction of the particular custom and whether it can be applied to the altered state of things after a perfect partition; where no new wajib-ul-arz is prepared at partition, it is not automatically the case that the prior custom ceases to have effect. | The Board accepted and followed the Full Bench's approach: the survival or otherwise of a custom after partition depends on the particular custom and the circumstances; it is a question of construction in each case rather than a fixed rule of law. |
| Judgment of the Subordinate Judge of Meerut (1875), confirmed by the High Court at Allahabad (1876) | Affords evidence that, in the unpartitioned mouza Pala Kher, a custom existed under which a relation of a vendor-sharer could pre-empt on a sale to a stranger to the mouza. | The Board treated these earlier judgments as evidence that a pre-partition custom existed, but noted that the custom evidenced by that case was not necessarily the same custom upon which the appellant relied in the present suit (because the present case concerns post-partition effect). |
Court's Reasoning and Analysis
The Board's analysis proceeded in a sequence of steps tied to the documentary and factual record:
- Existence of a pre-partition custom: The Board found that the clauses in the wajib-ul-arz of 1863 and 1870 (which included explicit provision that "Custom as to Pre emption is allowed") did prove that, prior to the 1905 partition, a custom of pre-emption of the kind pleaded in the plaint existed in the unpartitioned mouza Pala Kher.
- Nature and construction of the wajib-ul-arz clauses: The Board closely examined the wording, including provisions referring to transfers by co-sharers, mortgagors and mortgagees, and a partition clause in the 1863 wajib-ul-arz. It observed that the clauses were inartistically drafted and that references to mortgagors/mortgagees were ambiguous; the Board opined that those clauses were not intended to treat mortgagees as sharers entitled to pre-emption.
- Question of survival on partition: The Board emphasized that proving a pre-partition custom was not sufficient; it was necessary to show either by construction of the wajib-ul-arz or by other evidence that the custom would survive a perfect partition and operate so as to give a sharer in one newly formed mahal a right of pre-emption in another mahal in which he was not a sharer.
- Application of the Full Bench principle: The Board referred to Dalganjan Singh v. Kalka Singh (Full Bench) and agreed with the proposition that the survival of the custom after partition depends on construction of the particular custom and the facts of each case, and that the absence of a fresh wajib-ul-arz at partition does not as a matter of law automatically extinguish the prior custom.
- Factual inferences from the record: The Board noted several material facts: in 1863 all sharers were Muhammadans; by 1905 Hindus had become sharers; the rubkar for the 1905 partition contemplated a perfect partition and allocations (for example assigning a Muhammadan tomb to Muhammadan sharers); and nothing was done on partition to provide that sharers in one mahal would retain a right of pre-emption in another mahal.
- Conclusions drawn: Having regard to the wording of the wajib-ul-arz, the partition arrangements (including the 1905 rubkar), and the change in composition of sharers, the Board concluded it could not infer that the sharers intended that, after perfect partition, a sharer in one mahal should have a right of pre-emption in another mahal in which he was not a sharer. Thus the pre-partition custom, although proven as existing prior to partition, was not shown to survive in the form claimed by the appellant.
- On the evidentiary value of wajib-ul-arz: The Board disagreed with the view (apparently expressed by the High Court judges) that a wajib-ul-arz without corroborative instances of enforcement is necessarily weak. The Board held that statements in a wajib-ul-arz as to rights of pre-emption, when not in contravention of religious or other substantive law, are reliable prima facie evidence of a custom of pre-emption and need not always be corroborated by evidence of enforcement; such documentary evidence may, however, be rebutted by other evidence.
- Final evaluative step: Despite treating the wajib-ul-arz as prima facie evidence, the Board determined that the appellant had not discharged the further burden of proving that the pre-partition custom operated so as to give him a post-partition right to pre-empt the sale in Bhawani Das mahal. On that basis the appellant failed to prove entitlement to the decree.
Holding and Implications
Core Ruling: The appeal is DISMISSED.
Consequences for the parties:
- The decree of the High Court allowing the respondent's appeal and dismissing the suit is affirmed by the Board (appeal dismissed).
- The appellant (Kunwar Digamber Singh) must pay the costs of the appeal to the Board.
Broader implications (as discussed in the opinion):
- The decision reaffirms that whether a custom of pre-emption survives a perfect partition is a matter of construction of the particular custom and depends on the circumstances of each case (following the Full Bench in Dalganjan Singh v. Kalka Singh).
- The opinion clarifies that a wajib-ul-arz, when not inconsistent with substantive law, can be treated as prima facie evidence of a village custom of pre-emption and does not always require independent corroboration by instances of enforcement; however, such documentary evidence remains open to rebuttal by contrary evidence.
- No decree for pre-emption was granted in this case because the appellant failed to establish that the pre-partition custom continued to operate in the manner claimed after the 1905 partition; the decision therefore leaves intact the territorial and fact-sensitive approach to post-partition application of village customs.
Disposition: Appeal dismissed. Costs awarded against the appellant.
Sir John Edge :
The suit in which this appeal has arisen was brought on the 6th August, 1910, in the Court of the Subordinate Judge of Aligarh by Kunwar Digamber Singh, who is the appellant here, against Kunwar Ahmed Sayeed Khan, who is the respondent to this appeal, and one Bhawani Das, to enforce a right of pre-emption to which Kunwar Digamber Singh claimed to be entitled under a custom which he alleged to be prevailing in mouza Pala Kher in the District of Bulandshahr.
The respondent here, Kunwar Ahmad Sayeed Khan, who was the vendee of the property in dispute by his written statement denied that there was any custom of pre-emption in mouza Pala Kher and alleged that :-
"Mouza Pala Kher was divided by perfect partition and entirely separate mahals were formed......After the said partition no connection of any kind was left among the co-sharers of the different mahals, nor did any joint right, based on the terms of any wajib-ul-arz, subsist among them."
The date of the sale in respect of which pre-emption is claimed was the 12th July, 1909. In 1905, mouza Pala Kher, otherwise known as mouza Pala Kaser, and as mouza Bilaksir, was, on the applications of certain of the then sharers in the mouza partitioned into five mahals, of which two were named respectively Saligram and Bhawani Das. On the partition, each of the five newly formed mahals became separately responsible for the revenue assessed upon it, but did not become responsible for the revenue assessed upon any other of the five mahals. No separate record-of-rights was before this suit framed for any of the five new mahals.
The property sought to be pre-empted is in mahal Bhawani Das, in which mahal the applicant had not a share at the date of the sale; he was, however, at the date a sharer in mahal Salig Ram, in which mahal neither the respondent nor his vendor, Bhawani Das was a sharer. The respondent was not at the date of the sale a sharer in any of the five new mahals; he was, however, the mortgagee in possession of part of the share of Bhawani Das, the vendor, in mahal Bhawani Das.
The appellant and Bhawani Das are not related to each other. The respondent, who is a Muhammadan, is not related to the appellant or to Bhawani Das. Prior to the partition of 1905 mouza, Pala Kher was an unpartitioned mouza in which the appellant and Bhawani Das were sharers. Of the history of mouza Pala Kher prior to 1863 their Lordships are unaware, but in 1863 all the sharers in the mouza were apparently Muhammadans.
The evidence to prove the custom of pre-emption upon which the appellant's claim is based consisted of extracts from a wajib-ul-arz of the mouza of the Pala Kher of 1863, upon extracts from a wajib-ul-arz of the same mouza of 1870, and of a judgment of the Subordinate Judge of Meerut in 1875 in a suit for pre-emption which was confirmed by the High Court at Allahabad in 1876. The cause of action in that case arose of course long anterior to the partition of mouza Pala Kher, but the judgments do afford evidence that there existed in mouza Pala Kher a custom of pre-emption under which a relation of a vendor-sharer in the mouza was entitled to pre-empt on a sale to a stranger to the mouza, but that is not the custom upon which the appellant must rely in this suit.
The extract from the wajib-ul-arz of mouza Pala Kher, which was prepared on the 16th June, 1863, as translated and so far as it is material, is as follows :-
"In future every co-sharer, mortgagor or mortgagee shall as such be at liberty to make transfers. But he shall make transfers first in favour of his own and ekjaddi brothers and after them in favour of co-sharers in the khata and patti as well as in favour of the proprietors of the village. If none of them take he shall be competent to make transfers in favour of strangers. If there is a dispute regarding difference in consideration it shall be decided by arbitration."
The wajib-ul-arz of 1863 was signed by all the sharers and by some, if not all of the mortgagees.
The corresponding clause in the wajib-ul-arz of 1870 as translated in the record, is as follows :-
"In future co-sharer, mortgagor or mortgagee has as such power. He shall have power to make transfers first to his own and ekjaddi brothers and next to co-sharers in the khata and patti as well as to proprietors. If none of the aforesaid persons takes he shall have power to transfer it to a stranger. If there arises any dispute as regards the price being more or less it shall be decided by arbitration."
In paragraph 14 of the wajib-ul-arz of 1870 it expressly stated "Custom as to Pre emption is allowed." There can be no possible doubt that the clauses to which their Lordships have referred set out what the sharers in mouza Pala Kher had in 1863 and in 1870 agreed to be the custom of pre-emption in the mouza. It is to be presumd, as the contrary has not been shown, that the wajib-ul-arz of 1863 and the wajib-ul-arz of 1870 had been properly prepared in accordance with the law then in force, and with the "Directions of Revenue Officers in North-West Provinces of the Bengal Presidency," which had been promulgated under the authority of the Lieutenant-Governor of those Provinces.
The references in the clauses above mentioned to mortgagors and mortgagees are obscure. The sharers in mouza Pala Kher may have intended that if a mortgagor should assign his interest as a mortgagor he should offer it in the first instance to his own or his ekjaddi brother and then to a sharer in the khata and patti or to a proprietor in the mouza, and if they should refuse to purchase it he might assign it to a stranger, and in the same if a mortgagee should wish to assign his mortgagee's interest his right to assign it should be similarly limited. In their Lordships' opinion it was not meant by the clauses to which they have referred to treat mortgagees as such, as sharers in the mouza and to confer on them a right to pre-empt.
Having regard to some of the decisions of the High Court of Allahabad, which have been referred to in the arguments in this appeal, it is unfortunate that the record which is before this Board does not show what was the vernacular word in the wajib-ul-arz of 1863 and 1870, which has been translated as "co sharer,' or what was the vernacular word in the wajib-ul-arz of 1863 which has been translated as "village."
The wajib-ul-arz of 1863 contained a clause as to partition which, as translated in the record, was as follows :-
"7. Partition, separate and compact.
"Every one can get his property partitioned to the extent of share. And if the area be compact he can also get a separate mahal formed. If at the time of partition the grove of one person comes to be included in the lot of another, the planter of the grove shall remain in possession as before, but the planter shall (have to) be given land of the same quality in exchange. As to a well, the costs of construction shall be given to the person who constructed it. If the khudkasht land of one person comes into the possession of another, then he (the person in possession) shall relinquish it of his own accord or shall pay rent as a tenant."
It appears to their Lordships that it may reasonably be inferred from this clause that the sharers of 1863 in mouza Pala Kher not only contemplated that the mouza might subsequently be partitioned into separate mahals, but also intended that on a partition off from the mouza of a separate mahal, the sharers in the other mahals or in the unpartitioned portion of mouza Pala Kher should as such have no share or other proprietary interest in the separated mahal. It does not appear from the extracts from the wajib-ul-arz of 1870 which are printed in the record whether the wajib-ul-arz of 1870 contained a similar clause, but it probably did.
It appears from the rubkar of the 5th December, 1902, which was drawn up for the carrying out by the Amin of the partition of mouza Pala Kher that the partition should be a perfect partition; that a grove should be allotted to the mahal of the person who had planted it and that a Muhammadan tomb, which stood in the abadi, should be allotted to the share of the Muhammadans.
The Subordinate Judge of Aligarh found that a custom of pre-emption prevails in mouza Pala Kher; that the partition of the mouza and the separation of the plaintiffs Mahal Salig Ram from that of the vendor did not affect the custom of pre-emption; and that the plaintiff, the appellant here, had a right to pre-empt as against the vendee, the respondent here; and on the 28th March, 1911, he gave the appellant a decree for the pre-emption. From that decree Kunwar Ahmad Sayeed Khan, the respondent here, appealed to the High Court of Judicature at Allahabad.
The Chief Justice and Mr. Justice Tudball, before whom the appeal came for hearing, allowed the appeal and dismissed the suit. From the decree of the High Court this appeal has been brought.
Pre-emption in village communities in British India had its origin in the Muhammadan law as to pre-emption, and was apparently unknown in India before the time of the Moghul rulers. In the course of time customs of pre-emption grew up or were adopted among village communities. In some cases the sharers in a village adopted or followed the rules of the Muhammadan law of preemption, and in such cases the custom of the village follows the rules of the Muhammadan law of pre-emption. In other cases, where a custom of pre-emption exists, each village community has a custom of pre-emption which varies from the Muhammadan law of pre-emption and is peculiar to the village in its provisions and its incidents. A custom of pre-emption was doubtless in all cases the result of agreement amongst the shareholders of the particular village, and may have been adopted in modern times, and in villages which were first constituted in modern times. Rights of pre-emption have in some provinces been given by Acts of the Indian Legislature. Rights of pre-emption have also been created by contract between the sharers in a village. But in all cases the object is, as far as possible, to prevent strangers to a village from becoming sharers in the village. Rights of pre-emption, when they exist, are valuable rights, and when they depend upon a custom or upon a contract, the custom or the contract, as the case may be, must, if disputed, be proved.
The only evidence in this case to prove that the custom, which is relied upon by the appellant existed in mouza Pala Kher, is afforded by the clauses relating to pre-emption which are contained in the wajib-ul-arz of 1863 and 1870. These clauses do, in the opinion of their Lordships, prove that prior to the partition of mouza Pala Kher the custom of pre-emption, which is set out in the second paragraph of Clause 2 of the plaint existed and was in force in mouza Pala Kher, but that would not be sufficient to entitle the appellant to a decree. It would be necessary for him to show, either on the construction of the wajib-ul-arz or by other evidence, that the custom of pre-emption which obtained in the unpartitioned mouza Pala Kher would survive a partition of that mouza into separate mahals so as to give a sharer in one of the new mahals a right to pre empt property in another of those mahals in which he was not a sharer at the date of the sale.
This question was very carefully considered by a Full Bench of the Allahabad High Court in Dalganjan Singh v. Kalka Singh. [1899] 22 All. 1 = 1899 A. W. N. 111 (F.B.). In which Sir Arthur Strachey, J., and Mr. Justice Banerji, considered that the question in each case is that of the construction of the nature of the particular custom on which the claim for pre-emption is based, and whether the custom can apply to the altered state of things which comes into existence when a perfect partition has been effected. In that case, as in this, no new wajib ul-arz was framed on the partition. Their Lordships are not prepared to dissent from the view of Mr. Justice Banerji in the case which has been referred to that
"Where a fresh wajib ul-arz has not been prepared at partition, it does not follow, as a matter of law or principle, that the custom or contract in force before partition is no longer to have effect or operation."
The question must depend upon the circumstances of each case and the inferences which may ligitimately be drawn from the evidence. In the present case their Lordships cannot overlook the fact that in 1863 all the sharers in mouza Pala Kher were Muhammadans; that Hindus were obtaining interests in the mouza as mortgagees; and that the sharers in 1863 were contemplating that the mouza might be partitioned. The right to obtain perfect partition, of course, existed. Nor can their Lordships overlook the fact that in 1905, when perfect partition was applied for, Hindus had become sharers in mouza Pala Kher, and that nothing was done on partition to provide that sharers in one mahal should have a right of pre-emption in respect of a sale in another mahal in which they were not sharers. Their Lordships are unable to draw the inference from the wajib ul-arz and the circumstances in this case that it was intended that, in case of perfect partition of mouza Pala Kher, a sharer in one mahal should have a right of pre-emption in another mahal in which he was not a sharer.
The learned Judges who decided the appeal in this case in the High Court apparently considered that the evidence afforded by the wajib-ul-arzes of 1863 and 1870 did not prove any custom of pre-emption, and each of them also relied upon the fact that no evidence that the right of pre-emption has been exercised was given. The learned Chief Justice also apparently suggested doubts as to the value of a wajib-ul-arz as evidence of custom of pre-emption when unsupported by evidence that the custom had been enforced. As their Lordships have already intimated, they have no doubt that the clauses relating to transfers of shares in the wajib-ul-arzes of 1863 and 1870 stated what the sharers in 1863 and the sharers in 1870 had agreed was the custom of pre-emption in mouza Pala Kher. These clauses were inartistically drafted. The Kanungo or other official who collected information from the sharers in the mouza may have been a person who was as ignorant as they were of legal forms and legal phraseology, but before the wajib-ul-arz were signed by the sharers or sanctioned by the settlement officer, the sharers had an opportunity of objecting to any statements contained in them which they did not understand or did not consider to be correct. Pre-emption was a matter in which all the sharers were interested; it was a matter as to which they could agree as to what the custom in their mouza, was Pre-emption, with various incidents, limitations, and restrictions, prevails by custom or by special agreement amongst share-holders in very many, if not in most or all, of the village communities in the province in which mouza Pala Kher is situate.
In agreeing as to the custom of pre-emption which should be inserted in the wajib-ul-arz the sharers were not trying to establish any rule of inheritance in the mouza inconsistent with the Muhammadan or the Hindu Law of Inheritance, and their Lordships fail to see on what principle statements in a wajib-ul-arz as to rights of pre-emption, which are not in contravention of Muhammadan, Hindu or other law, should not be considered as reliable evidence of a custom of pre-emption. To hold that a wajib-ul-arz is not by itself good prima facie evidence of a custom of pre-emption which is stated in it and that the wajib-ul-arz requires to be corroborated by evidence of instances in which the custom has been enforced would be to increase the costs of litigation in pre-emption cases, and in many cases might practically deprive a sharer of his right. Of course the evidence as to a custom of pre-emption afforded by a wajib-ul-arz may be rebutted by other evidence.
The appellant has failed to prove that he is entitled to a decree. Their Lordships will humbly advise His Majesty that the appeal should be dismissed. The appellant must pay the costs of the appeal.
Appeal dismissed.
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