# Chhote Khan v. Mal Khan-and Qthtrs.· ·

- **Citation:** [1955] 1 S.C.R. 70
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil · Appeal No. 15of1951
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chhote-khan-v-mal-khan-and-qthtrs-386
- **Pages:** 17

## Headnote

1954
Chhote Khan
v.
Mal Khan-and
Qthtrs.· ·
Ghul~m H6san J.
1954
April 03.
70 '.
[195$]:.'
for .no issue., was .frarrie\I, . ; no~. any Jipding , _r~corqeq. by .
the trial <;:ourt, ,This poil)t ;is .,not tal<:t:n .even ,in: t.he ,.
grounds 9£, appeal
toi~h\s C()ur\., .The plea hj\S .. no;s1Jh·
stance and '\Vas right!Y reject~d by
0the, High ... Cciurt .: on
the ground . that, poss.ession. ,was • under,. an, arrangc;ment ...
between the co-sharers and. no . question •of. adyer~epossession could ,ari~e μndq. the circum~tanc_es.
·
We· hold that there is no force .. in this appeal• and .. ·
dismiss it with costs.
·' ··
~ - · \;_,_ ·
' ..
Appeal dismissed.".,,.
"h•··
. ....
. ...
: ~. ~!
SHRI.AUDI-i BEHAR! SINGH:
v . .
GAJADHAR JAIPURIA AND OTHERS:' " .
[Mmm · CHAN'D
M~HAJAN C.J., Bip.N. KuMAR , ••
MuKHERJEA, VIVIAN BosE, N. H .. BHAGWATJ. and·
T. L. VENKATARAMA AYYAR JJ.]
.
CustOf!1;-Pre-"emption-Ci'ty'
of
Pre-emptiOn~Suth ri"ght-lnciif.ent
land.
' ·
Banaras~Local
of · 'prap<rty and
. '
.
Custom
qf
attailiin g · tO
Held, that a local c~stom _of pre~mption' existS
in
thC city· Of
Banaras
and the
right attaches at least to all house· ··prripertie.f ··
situated ~ithin it arid no such incident of. custom is. prove~- which
would make
the
1'ight , a_vailab:le only · between . person~ .. who a~e
either ~atives of Banaras or .are domicile_d . therein.
.
. . . ,
..
When a righ~ of pre-erription rests. upo_n cust9m it becom.~s .the
lex loc_i or ~he .law of the place and affects all lands situated in th_at ..
place irrespCctiVC of the
religion of ii.ationality-· or domicile' .of the .
owners of the lands· except ·where ·.such incidents are prov.ed tO· be a,·
part of the custom itself.
·.-
~ •. ·r •
•
The right 'of ·pre'-cmption ·is an iricident of Pro.perty and~.attaches t0:· the land itself. . ;.~
· · ...
.
4
•
•
•
•.
•
•J
4
Byjnath -.:. Kapilmon (24 W.R. 95) and,, Parsashth
Nath .;,,
Dhanai (32 Cal. 988) disapproved..
• ., . .'. ,·
C1VIL
APi>Ei:LA.Til · Ju'iUso1CTioN ·:
· Civil · Appeal
No. 15of1951.'"' ·
" -; .. · "·
"'" "
\. •
·~ 'J·i. i4, •.
Appeal from .the Judg'tμe~t. a11d .Qecree,, · dated,,thc."_.
29th Angus;, . 1944, of the High Court· of Judicature ,at .
·1
Allahabad (Mulla :ind Yorke JJ.)
in .first , Appeal
\
•
-
•
'
-\
• -
-
·s:c.R.
-· st1Pil:EME CdBRT· IREPORTS
71
No.·157 of.1942,,arising out'of-the Judgment·and '.Decree,
':dated the 19th November, 1941, of the,· Court of the
,Civil Judge at •Banaras in Original ·Suit No. 79of1941.
- ·
Achhtu Ram, . (N. C. Sen and R. C. Prasad, with
·hiin:) for the appellant.
·
· ·
. . C. K. Dap'htary,· Solicitor--General for India and s:· P.
Sinha,, (!.
C. Mukherji,. Shaukat Husain,
and S. P.
·varmq, with them) f~r r~spondent No. 1.
1954. April 23. · The Judgment of the Court was
delivered by
·
MuKHERJEA J.-,-The plaintiff, who is
the appellant
before us, commenced the suit, out of which this appeal
.. arises, in the Court of. the Civil Judge at Banaras (being
Original Suit No. 79 of 1941) for enforcement of his
right of pre-emption . in respect of an enclosed plot of
<land with ·certain structures upon it, situated within
Mohalla Baradeo in the city of Banaras and bearing
Municipal No. D 37 /48. The premises in suit admittedly belonged to defendants Nos. 2 to 5, who are residents
.of Calcutta and they sold it by a conveyance executed
on the 29th March, 1941, and registered on the 3rd of
.April following, to defendant No. 1, also a resident of
Calcutta, for
the price of Rs. 7,000. The plaintiff 1s
the owner of the two premises to wit, premises Nos. D
37 /85 and D 37 /44, within the same Mohalla of the city
of Banaras, which are in close proximity to the property m dispute and adjoin it on the northern and
eastern sides respectively. It is averred by the plaintiff
that there is from very early time a custom prevalent
in the city of Banaras according to which the plaintiff
.was entitled to claim pre-emption of the property in
dispute on the ground of vicinage. It is said that as
soon as the plai

## Text

1954
Chhote Khan
v.
Mal Khan-and
Qthtrs.· ·
Ghul~m H6san J.
1954
April 03.
70 '.
[195$]:.'
for .no issue., was .frarrie\I, . ; no~. any Jipding , _r~corqeq. by .
the trial <;:ourt, ,This poil)t ;is .,not tal<:t:n .even ,in: t.he ,.
grounds 9£, appeal
toi~h\s C()ur\., .The plea hj\S .. no;s1Jh·
stance and '\Vas right!Y reject~d by
0the, High ... Cciurt .: on
the ground . that, poss.ession. ,was • under,. an, arrangc;ment ...
between the co-sharers and. no . question •of. adyer~epossession could ,ari~e μndq. the circum~tanc_es.
·
We· hold that there is no force .. in this appeal• and .. ·
dismiss it with costs.
·' ··
~ - · \;_,_ ·
' ..
Appeal dismissed.".,,.
"h•··
. ....
. ...
: ~. ~!
SHRI.AUDI-i BEHAR! SINGH:
v . .
GAJADHAR JAIPURIA AND OTHERS:' " .
[Mmm · CHAN'D
M~HAJAN C.J., Bip.N. KuMAR , ••
MuKHERJEA, VIVIAN BosE, N. H .. BHAGWATJ. and·
T. L. VENKATARAMA AYYAR JJ.]
.
CustOf!1;-Pre-"emption-Ci'ty'
of
Pre-emptiOn~Suth ri"ght-lnciif.ent
land.
' ·
Banaras~Local
of · 'prap<rty and
. '
.
Custom
qf
attailiin g · tO
Held, that a local c~stom _of pre~mption' existS
in
thC city· Of
Banaras
and the
right attaches at least to all house· ··prripertie.f ··
situated ~ithin it arid no such incident of. custom is. prove~- which
would make
the
1'ight , a_vailab:le only · between . person~ .. who a~e
either ~atives of Banaras or .are domicile_d . therein.
.
. . . ,
..
When a righ~ of pre-erription rests. upo_n cust9m it becom.~s .the
lex loc_i or ~he .law of the place and affects all lands situated in th_at ..
place irrespCctiVC of the
religion of ii.ationality-· or domicile' .of the .
owners of the lands· except ·where ·.such incidents are prov.ed tO· be a,·
part of the custom itself.
·.-
~ •. ·r •
•
The right 'of ·pre'-cmption ·is an iricident of Pro.perty and~.attaches t0:· the land itself. . ;.~
· · ...
.
4
•
•
•
•.
•
•J
4
Byjnath -.:. Kapilmon (24 W.R. 95) and,, Parsashth
Nath .;,,
Dhanai (32 Cal. 988) disapproved..
• ., . .'. ,·
C1VIL
APi>Ei:LA.Til · Ju'iUso1CTioN ·:
· Civil · Appeal
No. 15of1951.'"' ·
" -; .. · "·
"'" "
\. •
·~ 'J·i. i4, •.
Appeal from .the Judg'tμe~t. a11d .Qecree,, · dated,,thc."_.
29th Angus;, . 1944, of the High Court· of Judicature ,at .
·1
Allahabad (Mulla :ind Yorke JJ.)
in .first , Appeal
\
•
-
•
'
-\
• -
-
·s:c.R.
-· st1Pil:EME CdBRT· IREPORTS
71
No.·157 of.1942,,arising out'of-the Judgment·and '.Decree,
':dated the 19th November, 1941, of the,· Court of the
,Civil Judge at •Banaras in Original ·Suit No. 79of1941.
- ·
Achhtu Ram, . (N. C. Sen and R. C. Prasad, with
·hiin:) for the appellant.
·
· ·
. . C. K. Dap'htary,· Solicitor--General for India and s:· P.
Sinha,, (!.
C. Mukherji,. Shaukat Husain,
and S. P.
·varmq, with them) f~r r~spondent No. 1.
1954. April 23. · The Judgment of the Court was
delivered by
·
MuKHERJEA J.-,-The plaintiff, who is
the appellant
before us, commenced the suit, out of which this appeal
.. arises, in the Court of. the Civil Judge at Banaras (being
Original Suit No. 79 of 1941) for enforcement of his
right of pre-emption . in respect of an enclosed plot of
<land with ·certain structures upon it, situated within
Mohalla Baradeo in the city of Banaras and bearing
Municipal No. D 37 /48. The premises in suit admittedly belonged to defendants Nos. 2 to 5, who are residents
.of Calcutta and they sold it by a conveyance executed
on the 29th March, 1941, and registered on the 3rd of
.April following, to defendant No. 1, also a resident of
Calcutta, for
the price of Rs. 7,000. The plaintiff 1s
the owner of the two premises to wit, premises Nos. D
37 /85 and D 37 /44, within the same Mohalla of the city
of Banaras, which are in close proximity to the property m dispute and adjoin it on the northern and
eastern sides respectively. It is averred by the plaintiff
that there is from very early time a custom prevalent
in the city of Banaras according to which the plaintiff
.was entitled to claim pre-emption of the property in
dispute on the ground of vicinage. It is said that as
soon as the plaintiff received news of the sale, he made
an immediate assertion or demand of his rights and
repeated the same in the presence of the witnesses
as
required by Muhammadan Law and he furthe~ sent a
registered notice to defendant No. · 1 on the 21st· May,
1941; asking the latter to transfer the property to the
plaintiff on receipt of the price which he had actually
paid to. the vendors. As the defendant No. l . did not
comply with this demand the present suit .was brought.
1954
Shri Audh Behari
Singh
.v..
Gajadhar
· Jaipuria and
· .Others.
Mukherjea J.
1954
Shri Audh _Bihari
Singh
v.
GajtidhaT
Jai/JUria cm{l
Othtrs.
Mukheijeti ].
72
SUPREME COURT REPORTS
fl955]
The defendant No. 1 alone contested the suit and
the pleas taken· by him in his written statement can be
classified· under four heads. In the first place, he : denied
that there was any custom of pre-emption amongst nonMuslims in the city of Banaras as alleged by the plaintiff. The second plea taken was that even if there was
any custom of pre-emption it could not be availed -of
in a case like this where neither the vendors nor the
vendee were natives of or domiciled in
Banaras but
were residents of a different province. The third contention raised was that the plaintiff had not made the
two demands in the proper manner as required by
Muhammadan Law and by reason of
non<ompliance
with the essential pre-requisites to a claim for preemption,
the suit was bound to fail.
Lastly,
it was
contended that as the plaintiff himself was the landlord of the property in suit and the vendors were his
tenants, he could not, under any law or custom, eject
his own tenants by exercise of the right of pre-emption.
The Civil Judge who tried the suit held, on the evidence adduced in the case, that there was in fact a custom of pre-emption in the city of Banatas, the incidents
of which were the same as in Muhammadan Law. He
held however that the custom being a local custom it
could not be enforced against either the vendors or the
vendee in · the present case, as none of them were
natives of or domiciled in
Banaras. The . trial judge
also found that the plaintiff did not make the requisite
demands which are mandatory under Muhammadan
Law. The· result
was that the plaintiff's suit was dismissed and in view of the findings arrived at by him,
the Civil Judge did not consider it necessary to decide
the question as to whether the plaintiff being himself a
landlord could assert any claim for pre-emption against
his tenants on the basis of a custom.
Against this decision the plaintiff took an appeal to
the High Court of Allahabad which was heard by a
Division Bench consisting of Mulla and Yorke JJ. The
learned Judges agreed with the trial Court in holding
that although there was a custom. of pre-emption ill . the
city of Banaras, yet the necessary condition for 'enforcing the custom in that locality was that the ·vendor
!·
•
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• -
-
S.C.R.
SUPREME COURT REPORTS
73
and the veridee must be natives of or domii:iled · in the
city. As this condition was not fulfilled in this case the
plaintiff's claim could not succeed. In the result the
High Court affirmed the decision of the trial judge and
dismissed the appeal. The other questions as to · whether the plaintiff had made the demands in strict compliance with the rules of Muhammadan Law and whether he could claim pre-emption against his own
tenants on the basis of a right by custom were left
undecided. The judgment of the High Court is dated
the 29th August, · 1944. After this, the plaintiff applied
for leave to appeal to the
Judicial
Committee.
This
application was refused by the High Court but he got
special leave under an order of the Judicial Committee,
dated the 11th December,
1945. After the abolition
of the jurisdiction of the Judicial Committee the appeal
.stood transferred to this Court for disposal.
The contentions that have been raised before us by
the· parties to this appeal practically
centre round one
point. It is not disputed by either side that there 1s a
custom of pre-emption in the entire city of
Banaras ;
but whereas the respondents contend that the custom
obtains exclusively amongst persons
who are inhabitants of the city or are domiciled therein, the case of
the appellant is that the custom admits of no such
restriction or limitation and all those
who own property in the city are governed by the custom, it being
immaterial whether or not they are the natives of the
place or are or are not resident owners. Various contentions have been raised by the . learnea counsel on
both sides in support of their respective cases and we
have been treated to an elaborate discussion regarding
the nature of the right of pre-emption as is recognised
in the Muhammadan Law and the incidents that attach
to it, when it is not regulated by law but is founded on
custom said to be obt~ining in a particular locality.
Before we examine the arguments that have been
placed before us by the learned counsel appearing for
the parties,· it may be necessary to make a few general
observations regarding the law or laws which govern
the exercise of the right of pre-emption . in India at the
present day.
1954
Shri .!.udh Behari
Singh
v.
Gqjtidkar
Jaipuria and
Others.
Mukhedea J.
_1954
---
Shri"A'u.dli. Behari
:Singh
v.
GiJjl)ahar
Jafpuria and
. Othtrs.
Mukherjea J.
74
:4 ·_ r .:-·
[1955}
i I
•
-•
· .
'
·
· ·
·. • ·
. : ~ l . '
'
The''Pi-ivy ,C~undl has ·Sa.id. in ~ore cases ~
one,.('),
:that, the law ·of ·, pre,einption
wa~ introduced. in-,this
country,· by the_ .Muham.i:na<\ans. : T4ere .is no indication
.. of any .such . conception ,in. the Hind!f ,La\V ~d me;. sub-
-jei:t has not_ been. noticed or . discussed either mthe
-writ.ings -of the Smriti \\iriters- ·or in, t!'ose · ?f late_r ~ornmentators. Sir William Macnaghten m. -.his Pnnc1ples
-·and P~ecedents: of Mahomedan Law( 2 ) has referred •to
a. pass~ge in ·the_ Mahanirvana Tantra which, _a_ccording
to the:_ le.arned 'author, . implies:. that pre,empt10n Was
recognised a_s· a legal, provision accordi,ng to the notions
of the Hindus. But -the treatise itself is one. on mytho- .
logy,. 'not 011 law. and is admittedly a recent production .•
. No value cari ·be · attached to. a stray passage of this
.character the authenticity
of which
is - not
beyond
doubt.
During the period of the Mughal emperors the law of
pre-emption was administered as a rule of common law
of the land in those parts. of the country which came
. under the· domination of the Muhammadan rulers, and
"it was applied -alike- to
Muhammadans and Zimmees
·(within which Christians and Hindus were included),
no distinction being · made in this respect between per-
. sons of different races and creeds(').
In course of time
the Hindus came to adopt pre-emption as a custom for
reasons of convenience and ·the custom is largely to be
found- in provinces like Bihar and Gujerat ·which had
once been integral parts of the Muhamm~dan empire.
Opinions differ as to whether the custom of preemption amongst village communities in
Punjab
and
·other parts· of India was borrowed from the Muhammadans or arose independently of
the
Muhammadan
Law, having its origin in the doctrine of "limited right"
which has always been the characteristic _ feature of
village communities('). Possibly much could be said
in support of either view and there is reason to think
that even where the Muhammadan Law was borrowed
(1) Vide jadulal v. Janki Koer, 39 I.A.
101,
106;
Digambar Singh v.
Ahmad 42 I.A. 10, 18.
(2) Vide page 14.
(3) Vide Hamilton's fledaya, ''ol. III. p. 592.
(4)~Vide P.R. 98 of 1894.
'
i·
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S.C.R.
SUPREME COURT REPORTS
75
-it was not always borrowed in its
entirety. It would
be useful to refer in this connection to the following
observations of the Judicial Committee in Digambar v.
Ahmad(1 ) :
-
"In some cases the sharers in a village adopted or
followed · the rules
of the Mahomedan Law of pre-emption, and in such cases the custom of the village follows
the rules of the Mahomedan 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 Mahomedan 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."
It is not necessary for our present purpose to pursue
this discussion any further.
Since the establishment of British rule -in
India
the
Muhammadan Law ceased to be the general law of the
land and as pre-emption
IS not one of the matters
respecting which Muhammadan Law
IS
expressly declared to be the rule of decision where the parties to a
suit are
Muhammadans,
the Courts m British
India
administered the Muhammadan Law of pre-emption as
between Muhammadans entirely on grounds of justice,
equity and good conscience. Here again there was no
uniformity of views expressed by the different High
Courts in India and the High Court of Madras definitely
held that the law of pre-emption, by reason of its
placing restrictions upon the liberty of transfer of property, could not be regarded to be in consonance with
the principles of justice, equity and good conscience( 2).
Hence the right of pre-emption is not recognised in the
Madras Presidency at all even amongst Muhammadans
except on the footing
of a custom.
Rights of preemption have in some provinces like Punjab, Agra and
Oudh been embodied in statutes passed
by the Indian
Legislature and where the law has been thus codified
(1) -i,2 I.A. 10, 18
(2) Vide K.-ishna menon v. Keshavan, 20 Mad. 305.
6-86 S.C. India/59
_1954
_ Shri Audh Behari
Singh
.v.
Gajadhar
Jaipuria and
. Others.
.Mukheriea J.
·1954
· Shri Audh Behari
Si11gh
·v.
GiJjadhar
']aipuria and
Others.
M•khe;jea ].
76
SUPREME COURT REPORTS
[1955]
I"
it undoubtedly becomes
the territorial law of the . place
and is applicable to persons other than Muhammadans
by reason of their property being situated therein. In
other parts of India its
operation depends . upon custom
and when the law is customary the right is enforceable
irrespective of the religious . persuasion of the parties
concerned. Where the law is neither territorial nor
customary, it is applicable only between Muhammadans
as part of their personal law provided the judiciary of
the place where the property is situated does not consider such law to be opposed to the principles of justice,
equity ·and good conscience.
Apart from these a right
of pre-emption can be created by
contract and as has
been observed by the Judicial Committee in the case
referred to above,
such
contracts are usually
foU1ld
amongst sharers m a village.
It 1s against this background that we propose to examme the contentions
.that have been raised in the present case.
The first question that has been mooted before us IS,
whether the burden and benefit of a right of pre-emption are incidents annexed to the lands belonging respectively to the vendor and the pre-emptor or is the
right merely one of re-purchase. which ,a neighbour or
co-sharer enjoys under Muhammadan Law, and which
he can enforce personally against the vendee in whom
the title to the property has . already vested
by
sale.
The learned counsel for the appellant has pressed for
acceptance of the first view while the Solicitor-General
appearmg for the respondents has contended, that by
no · accepted principles of jurisprudence can the preemptor be said to have an interest in the property of
the vendor. It 1s pointed out that the right of preemption arises for the first time when there is a com-
.rleted sale and the title of the purchaser is perfected
and if the right was one attached to the property, it
must have existed prior to the sale and should have
been available not merely m case of sale but in all other
:kinds of transfer like gift and lease.
· This latter line of reasoning found favour with
the
majority of a Full Bench of. the Calcutta High Court
m the case of Sheikh Kudratulla v. Mahini Mohan(·'),
(1) 4 Beng. L.R. (Full Beni:h 'Rulings) page 134.
. .
·)
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SUPREME COURT REPORTS
77
where the questi0n arose whether, when a Muhammadan sold his property to a Hindu purchaser the cosharer of the former could enforce a right of pre-empil:ion against the Hindu vendee under the Muhammadan
Law. The question was answered in the negative by
the maj0rity of the Full Bench and Mitter J. who delivered the leading judgment, while discussing the nature
of the right of pre-emption observed as follows :
"If that right is founded on an antecedent defect
in the title of the vendor, that is to say on a legal
disability on his part to sell his property to a stranger,
without giving an opportunity to his co-parceners and
neighbours to purchase it in the first instance, those coparceners and neighbours are fully entitled to ask the
Hindu purchaser to surrender the property, for although
as a Hindu, he is not necessarily bound by the Mahomedan Law, he was at any rate bound by the rule of
justice, equity and good conscience to inquire into the
title of his vendor;
and that very
rule
also requires
that we should not permit him to retain a property
which his vendor had rio power to sell. If, on the
contrary, it can be shown, that there was no such
defect in the title of the vendor, or in other words that
he was under no such disability, even under the Mahomedan Law itself, it would follow as a matter of course,
that there was no defect in the title of the purchaser,
at the time of its crea.ticn . . . . . . . . . . Now,
so far as I
can judge of the Mahomedan Law of pre-emption from
the materials within my reach, it appears to me to be
perfectly clear that a. right of pre-emption is
nothing
more than a mere right of re-purchase, not from the
,... h
vendor but from the vendee, who is treated, for all
intents arid purposes, as the full legal owner of the
-property which is the subject-matter of that right."
The
minority
judges
consi£:ting of
Norman
and
Macpherson JJ. took a different view and held that the
law of pre-emption was to be treated as a real law, that
is a law affecting and attaching to the property itself.
•
The
liability to the claim of pre-emption is a quality
r
impressed upon and inherent in the property which is
subjected to it; or in other wnrds an incident of that
property.
1954
Shri Audh Behari
Singh
v.
Gajadhar
Jaipuria and
Others.
Mukherjea].
1954
Shri 'Audh Beh"ari
Singh
v.
Gajadhar
jaipuria and
Others.
Mukhtrjea ].
78
SUPREM£ COUR>T RE.P0RlfS
[1955]
The identical pomt came'' up for· consideration before
a Full Bench of the Allaiiabad ·High< Cqurt( 1 );where
also
the question · for.· decision was whether ·a Muhammadan ·pre-emptor ·could enforce •.his. right ·against a
Hindu· ·vendee
from
a• .,Muhammadan . .-vendor. The
learned· Judges fook a view · 'contraty ·to ·that. ·taken by
the majority of the Calcutta Full Bench and answered
the question in the affirmative. ,.Ji• was · held 'that the
right of pre-emption was not one of recpurchase from
the vendee.
It was
a right inherent ·in the .. property
and hence could be followed in the.hands of. the purchaser
whoever he might be. .Mr.
Justice . Mahmood
elaborately
reviewed
all
the
original authorjties
of
Muhammadan Law on , the point and. expressed the
opinion that the right of pre-emption under Muhammadan Law
partakes
strongly of . the. nature. of an
easement right,
the
"dpminant tenement"
and
the
"servant ten,ement"
of the
law . of
easement being
analogous
to what the learned . Judge. described respectively as
the
"pre-emptive tenement"
and
"preemptional tenement."
In other words the right of
pre-emption is a sort of legal servitude
running with
the land. The right exists, as the learned Judge said,
in the owner of the pre-emptive tenement for the time
being which entitles him to have an offer of sa.le made
to him, whenever the owner of the pre-emptional property desires to sell it. But the right could not be a
right of re-purchase either from the vendor or the
vendee involving a. new contract of sale. "It is
simply
a right of substitution entitling . the pre-emptor, by
reason of a legal inciden,t to which the sale itself was
subject, to stand in the shoes of the vendee in respect
of all· the rights and obligations arising from the sale
under which he has derive.cl his. title. It is in effect, as
if in a sale deed the vendee's name was rubbed out and
the pre-emptor's name was sub;tiiuted . in its
place."
The learned Judge pointed out that the decision of the
Calcutta. Full Bench was base.cl upon a rn,is-tran,slation
of the Arabic. word "Tajibo" in Hamilton's Hedaya.
Hamilton. translated the word as meaning. "established"
l}ut it re~lly .. •means "'becomes obligatory, . nece!sary. ·or
(1) ''ide Govinda Dayal v. Inayatulla, 7 All. 775.
. ...
'
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S.C.R.
SUPREME COURT REP.QR'J}S
79
enforceable!' . The ·right. pas not, got .. to be established
at all. k is attached and: ·continues to be attached to
the tenement- . concerned .. and can under certain circumstances
be . enforced.. forthwith
against . the. adjoining
tenements sold.
.
This decision was followed by the Patna High Court
in Achyatananda v. Biki( 1 ). ·A Division Bench of the
Bombay · High Court in ·a case decided· in·· 1928(2)
accepted the view· taken by' the majority of the Calcutta
Full Bench but· the reasons given in that decision· were
held to be unsupportable by a later Full Bench(3) · of
the same High Court which held the right of· preemption to be an incide'nt of property ' and agreed
substantially with the. view ·takell' by Mahmood J. ill
the Allahabad Full Bench.
In our opinion it would not be correct to say that
the right of pre-emption . under Muhammadan Law is a
personal right on the part of the pre-emptor to get a
re-transfer of the property from the vendee who has
already become owner of the same .. We prefer to accept
the meaning of the word "Tajibo" used in the Hedaya
in the sense in which M( Justice Mahmood construes
it to m~an and it was really a mis-translation of that
word by Hamilton that accounted to a great extent for
the view taken by ~he Calcutta High Court. It is true
that ·the right
becomes enforceable only when there is
a sale but the right exists antecedently to the sale, the
foundation of th~ right 'being the avoidance of he
inconven'iences
and disturbances · which would ·arise
from the introduction of a stranger into the land. We
agree with Mr. Justice Mahmood that the sale
is a
condition precedent not to the existence of
the right
but to its enforceability. We do not however desire to
express any opinion on the view taken by the learned
Judge· that the right 'of pre-emption· partakes strongly
of the character of an · easement in law. ·Analogies ·are
not always · helpful and even if there is resemblance
between tht two rights, the differences between them
are po· less ma~erial: ·.·The correct legal position seems
(1) ', Pat. 57B.
(2) Vide Hamed MiJa v. Benjamin, 53 Bom. 5.25.
)3) Vide Desharathi/al v. Bai, Dhondu Bai, I.CR. 1941 Bom: 460:·
1954
Shri Audh l)ehar;
SinI;h
v.
Gajadhar
:J aipuria and
Others.
Mukherjea ].
Shri A.ut!h JJ1hari
- Singh
....
Gajadhat
Jaipuria and
Othirs.
-Mukherjuj J~
·80
SUPREME COURT REPORTS
[1955]
to be ·that the law of pre-emption imposes a limitatioi:i
or disability upon the ownership of a property to the
extent that it restricts the owner's unfettered right of
sale and compels him to sell the property to his cosharer or neighbour as the case may be.. The person
who is a co-sharer in the land or owns lands in the
v1c1mty
consequently gets
an advantage
or
benefit
corresponding to the burden with which the owner or
the
property is saddled; even though it does . not
amount to an actual interest in the property sold. The
crux of the whole thing is that the benefit as well as
the burden of the right of pre-emption run with the
_ land and can be enforced by or against the owner of
the Ian d for the time being although the right of the
pre-emptor does
not amount to an interest in the land
itself. It may be stated here that if the right of preemption had been only a personal right enforceable
against the vendee and there was no infirmity in the
title of the owner restricting his right of sale in a certain
manner, a bona fide purchaser without notice would
certainly
obtain ah absolute
title to the property,
unhampered by any right of the pre-emptor and in
such circumstances
there could be no justification for
enforcing the right of pre-emption against the purchaser
on grounds of justice, equity and good conscience on
which grounds alone the right could be enforced at the
present day.
In our opinion the law of pre-emption
creates a right which attaches
to the property and
on . that footing only it can be enforced against the
purchaser.
The question now arises as to what is the legal posi-
.._,..
tion when the right is claimed not under Muhammadan
Law but on the footing of a custom. It cannot be and · -"'
is not disputed that if the right of pre-emption is set
up by non-Muslims on the basis of a custom, the
existence of the custom is a matter to be established
by proper evidence. But as has been laid down by the
Judicial Committee( 1) following the decision of the
. Calcutta High Court in Fakjr Rawat v. Emman('), that
when the existence of a custom under which the Hindus
(1) VideJadulalv.Janki Koer, 39. I.A. 101.
(2) 1863 B.L.R. Sup. Vol. 35·
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-SUPREME COURT REPORTS
81
claim
to
have the same rights of pre-emptjon as
Muhammadans, in any district, is generally known and
judicially recognised, it is not necessary to prove it by
further evidence. A long course of decisions has
established the existence of such custom m Bihar, Sylhet
and certain parts of Gujerat.
So far as the present case is concerned, a large number of judgments have been put in evidence by the
plaintiff in proof of the existence of a custom of preemption in the entire city of Banaras. There are at
least three reported cases( 1 ) in which the High Court of
Allahabad has affirmed the existence of such
rights in
Banaras.
The defendants
in the present case do not
dispute the existence
of the custom and the whole
dispute
IS
as regards the incidents of the same, the
defendants' case being that the custom is available as
between persons who are natives of or domiciled in the
place and cannot be extended to an outsider even
though he
owns property m the city which is the
subject-matter of the claim.
The Privy Council m Jadhulal v. Janki Koer(2)
expressly laid down that when a custom of pre-emption
Is
established by evidence to prevail amongst nonMuslims in a particular locality "it must be presumed
to be founded on and co-extensive with the
Muhammadan
Law on that subject unless the contrary is
shown ; that the Court may as
between Hindus administer a modification of the law as to the circumstances under which the right may be claimed when it
is shown that the custom in that respect does not go
to the whole length of the Muhammadan Law of preemption, but that the assertion of right by suit must
always be preceded by an observance of the preliminary
forms prescribed in the Muhammadan Law which forms
appear to have
been invariably observed and insisted
on through the whole of the cases from the earliest
times of which we have record."
In the case before us no attempt was made by the defendants to show that the custom of pre-emption set up
·
(1) Vide Chakauri Devi v. Sundari Devi, 28 All. 590; Ram Chandra v.
Gosw&mi Ram Puri, 45 All. 501; Gouri Sankar v. Sitaram, 54 All. 76.
(2) 39 I.A. IOI.
1954
Shri Audh Behari
Singh
v.
, 'Gajadhar
Jaipuria and
Others.
Mukhetjea].
·1954
Shri Awfh Behari
Singh·
v.
Ga}adhar
jaipuria and
Others.
Mukkrjea J.
S'Z
SUPR:EME COURT REP®RTS
[.1955]
and proved by the plaintiff was ot·a character·.different
from that :which is ·contemplated by Muhammadan· Law.
The only difference that is noticed in one .. of the decided
authorities(')· is that the custom · of pre-emption· prevalent in the city ·of Banaras is . confined · to. house properties only and does not extend to vacant lands ; but
this view ·again has been modified . in . a subsequent
decision(') which held that building sites and small
parcels of land even though vacant are· not excluded
from the anibit of the custom. The. various judgments
which have been made exhibits in this case do not
give any indication · whatsoever that under the custom,
as it prevails in· the city of Banaras, pre-emption could
be claimed only against persons who are . the inhabitants of the place or are domiciled· therein · and that it
could not be enforced in respect of..a property situated
in the city,. ·the owner of which is not a native of that
place.
In fact no such question was raised
or discussed in any of these cases. The ambit or extent· of a
custom is a matter of proof and the defendants were
certainly competent to adduce evidence to show that
the custom of pre-emption prevailing · in the city of
Banaras was available not against all persons who held
lands within it but only against
a particular class
of
persons. But this they did not attempt to do at any
stage of the litigation.
Their contention,
which has,
been accepted by both the Courts below is,
that, as a
matter of law, a local custom of pre-emption does not
affect or bind
persons who are not the natives of or
domiciled in that· ·area: In support of this proposition
the Courts below have relied primarily · upon the statement of law made by
Roland Wilson and other text
book writers on Muhammadan Law which purport to
be based upon certain decided authorities.
At page 391 of his book on • Anglo-Muhammadan
'Law l ·3 ) Roland Wilson states the law in the following
manner:
"Where .. the custom is judicially noticed as prevailirig amongst-non:Muham1lladans in a certain 'local area,
.(1) Vide Ram Chan<lra v;. Goswami, 45 All. 5oi.
(2) Vide Gouri Sankar v. Sitaram, 54 All. 76.
(3) Vide 6th edition, paragraph 352.
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SUPREME COURT REP-ORTS·
83
it does not govern non-Muhammadans" who, though
holding . land therein w. for the time being, are. :neither
natives of, nor domiciled in, the district."·
Two cases have been referred to' in support of this
proposition, one of which ·is Byjnath Pershad' v. Kapil-
. mon · Singh(1) and the other Parsashth Nath Tewari v.
Dhanai( 2 ). Mulla repeats the law almost in the same
terms in his Muhammadan Law: In Tyabji the rule is
thus laid down(3)':
"The law of pre-emption· ·is personal. It is not
territorial, nor · an incident of property. A person who
is not a native of or domiciled within a locality· where
pre-emptfon is enforced by law or custom but who owns
lands within the sarrie locality will not necessarily. be
subject to the law of pre-emption."
This statement clearly indicates the foundation of
the whole doctrine. The law of pre-emption is stated
to be a purely personal law even when it rests on
custom. It is no inddent of property and. the right
which it creates is enforceable only against persons who
belong to a particular religious .community or fulfil the
description of being natives of. a particular district. In
the case of Byjnath Pershad v. Kapilmon Singh( 1 ), which
·can be said
to be the leading pronouncement on the
subject, the vendor of a house situated m the town of
Arah, in the provinc.e of Bihar, was one Rajani Kanta
Banerjee who was a native· of lower Bengal but resided
. at Arah where he carried on the profession of a lawyer.
Rajani Kanta sold the property to the defendant and
the plaintiff brought, a . suit ,claiming pre-emption on
•the ground of vicinage. It was admitted . that the
·custom of pre~emption did. prevail amongst non-Mus-
.lims in Bihar, but still the suit was. dismissed on the
ground that the vendor, who was not a native of the
·district, . was not bound by it 'The right of pre-emption,
it was held, arises, from a rule . of law by whi\:h . the
'.owner of the land i_s bound and it no longer exists if he
: ceases to be an owner, who is bound by the .law . either
:as a Muhammadan Of by custom.
·
·
(1) 24 W.R,. 95·
.
;
.. ·
.
·
.
(2) 32 Col. 988..
·
·
(3) Tyabji's Muhammadan Law; p·age 670~ paragraph 523(e)".
1954
Shri Audh
l!eMri Singh
v.
Gajadhar
J aipuria and
Others •
Mukherjea J.
1954
Shri Audh
Behari Singh
·v.
. Gajailhar
Ja;puria and
·Others.
Mukhnjea}.
84
SUPREME COURT REPORTS·
[1955}
In our opinion the decision proceeds upon a wrong
assumption.
The right of pre-emption, as we have
already stated, is an incident of property and attaches
to the land itself. As between Muhammadans the right
undoubtedly arises out of their personal law; but that
is because the law of pre-emption is no part of the
general law in India. Muhammadans live scattered all
over our country and unless the right of .pre-emption is
regarded as part of their personal law they would lose
the benefit of it altogether. Hence if a Muhammadan
owns land in· any local area and has co-sharers or neighbouring proprietors who are also Muhammadans, a right
of pre-emption would accrue to the latter under the
personal law of the Muhammadans, which is enforced
in this country since the British days on grounds of
.equity, justice and good conscience.
But though arising out of personal law the right of pre-emption is not
a personal right ; it is a real right attaching to the land
itself. When the right is created by custom it would
be,
as
the
Privy Council has said, co-extensive with
'the right under Muhammadan Law unless the contrary
·is proved. This means that the nature and incidents
of the right are the same in both cases. In both it
creates a right in the property and not a mere personal
claim against the vendor or the vendee and the essential pre-requisites to the exercise of the right and the
terms of enforcement are identical in both.
But this
does not mean that the customary right must be personal to the inhabitants of a particular locality. It
may be so, if that is the incident of the custom itself
as established
by evidence,
but not otherwise. Unde.r
Muhammadan Law the right is confined to persons of
a
particular
religious
persuasion because it
has its
oilgin in the Muhammadan Law which is no longer a
law of the land. But when. it is the creature of a custom
the religious persuasion of the parties or the community
·to: which they belong are altogether immaterial.
All
that is necessary to prove in such cases is that the right
of pre-emption
is recognised in a ·particular
locality
and once this is established,· the !arid belonging to every
person in the locality would be subject to the . custom,
irrespective of his .. being .. a member of : a· . particular
').J
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S.C.R.
SUPREME COURT REPORTS
85
community or group. The whole doctrine, as enunciated above, is based upon the fallacious assumption that
the right of pre-emption is a personal right. ansmg out
of certain personal conditions of the parties like religion,
nationality or domicile and this fallacy crept into our
law simply because the right of pre-emption as between
Muhammadans is
administered
as
a part of
their
personal law in our country.
The correct legal position must be that ·when a right
of pre-emption rests upon custom it becomes the lex
loci or the law of the place and affects all lands situated
in that place irrespective of the religion or nationality
or domicile of the owners of the lands except where
such incidents are proved to be a part of the custom
itself.
It appears that the decision in Byjnath v. Kapilmon ( 1), which was quite in accordance with the view
then taken by the High Court of Calcutta about the
nature of the right of pre-emption, was the basis of the
statement of law in the form set out above in an earlier
edition of
Roland Wilson's book. The decision in
Parsashth Nath v. Dhanai(2 ), which is the other authority referred to, is based entirely upon the statement
of law in that earlier edition, and does not carry the
. matter any
further. In our opinion these decisions
cannot be held to be correct and the contention of the
learned counsel for the appellant should be given effect
to. We accordingly hold that a local custom of preemption exists in the city of Banaras and the right
attaches at least to all house properties situated within
it and no incident of such custom is proved which would
make the right available only between persons who arc
either natives of
Banaras or are domiciled therein.
The result is that the appeal is allowed and the judgments of both the Courts below are set aside. The case
shall go back to the High Court for consideration of
the two questions left undecided by it, namely, whether
t_he plaintiff has made the demands in due compliance
with the forms prescribed by the Muhammadan Law
and secondly whether the plaintiff, being a landlord~
(1) 24 W.R. 95·
(2) 32 Cal. 988.
1954
. Shri Audh
Behari Singh
v.
Gaadh(!J"
,7.aif!uria and
Othtrs.
Mukherjea J.
I•g··
-Shri Audh
.J1eh'a1j. Singh
v.
GtJ.jadhar
.Jiiipuria ·and
Others.
1954
-April 2
86
SURR1EMiE C0URT RRP0R11S
[1$5]
couldi-eject-.. his.• .owh tanants .in: exerdse,.of..the.,right: of
pre-emption .. ,,:fhe. ·· .apJ'ellaM,;wilLhave ·_the- cost_s, -,of, this
appeal:from respondent-- -No .. L, Further, costs ..• wi!).,ahide
the~iresult>., 1 11
• ,:.
•Ii·
.. ,,1:1;,,;. ·
.• , ... ; ·1: .• , ,.
• '
'
~
I
' I
,,
"'' ' ' Appe~z; al,lo'wed:
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'
'
• 1 "." "•(.
I
:
, . •
;
• < '
.I ;
I! . 1
!
·''
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;
.:. ·UJAGAR SINGH AND OTHERS.
[B: k. MuKHEkJ~..\; Vi~A;, Bosii, GfiuLA'.M fJ:.s..\:N'
.
'• .,
•' '"''
11
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.. !
·.
·" ,;,'
•.
__ , .
, , al)q YJ;;NK~TAl}AMAAX\'.AR JJ,.] ..... , , "
Custom-Succession-Agricultural /ats of village
Ralla, !Tahsil
Mansa,.
Dis(rict B,arnala,
State
Pep;u-Non-ancestrql
property-
.l)aughter;'s so,n.r ~-
coll~t~rals:_Gift by daufiht(r of n.on~'ahcestfal pro_perty in favOU1; OJ h-e;.· sofis..:...... Whether qmou'ntS to· 'acceleration-Omission io' include a Small Portibn ·of' th~ ·.whole . property in 'the giftSurrender:--.-:V alidity of.·
• ', < •- .
: ~
·,
-Held, that among ag'Ficulturak· 1·ats -of · Village
Ralla,. in the
·District, .of ·Barn~la, Sμte· .of Pepsu,. daughter'~' ~9p.s v,:ill inher:it, to
the .. exclusiOJ).:'.9£
1c;9Jla_t.era;l~,, ·~he· f!On-a,nce~tra~.
~aμqs whicP.. had
devolved by inherit~nce_ on -.~h~ii: motlier. ,
·
. ' A. g'i.fr
q~; the_ d,~ughF~
1~
~o ht;!r· ~~,ns~ ~oul?. ~.m9unt.· tQ, acce\eration of su"ccession.. Omission to includt;" a Sm<!-11 portion Of the whole
Property' due ·to ignoiap.t~ ·or ove'rsight does not affect the validity
·of the surrencler·When'•it is'otherWise bona fide.
-'.·;:
i,:.
Lehna v: Mst. Th~kti'•(32 Punjl!b Rec~rd 1£92 •F.B:); 1:.al• Singh
v. Roor Singh (55 P.L;Rc !68 'at 172).;' Mulla's :Hindu Law, 11th
Edition, page 211; Ratt;.'gan's Digest, ·of Customaiy .I-,tiw Para. P(2)
Ieferred tp,-.
.,,
, .,. 1 )1 11 ,, ..... :.
,
,_., ...
, CIVIL·· APPEM;ATF; ,.JURISDICTION·.: .Civ,iL-Appeal. No,
174-of-1952,. ,,, .. ,,y,._ "'"
.. · .. ,.,; •. •-: .. ,,,,._.,
.,_
App~ir 'frorii the'' Judgme'nt" 'lnd 'Decree · dated ihe
27th fu'ne;· 1950; 'of 'ihe"·High Court of-Judicature of
Patia!a -an~~· East' Pupjah-'St~tes "Union 'in S~i:ond -Appeal
No. 219. 'of'1949-)0. agi\nst' t)l:e Judgment . and·'~Decree
<lated the 21st 'Septe!+iber; i949,' of tht COurf of' the "Addition~i 'D,lstriet' Judge; Bh'a'tirida, in' 'Appeal Nc:i. '61 of
1948, ar1£foit 'fr<Jin the' Judgfl)eiit 'a(id Decree· dated ·'the
10th 'Ai.igus~' '1948; 1' '1:)£' the Oiurt ''ot''tli'e
s\ib;JU'dg~ II
Class, Mansa, in Case No. 134 of 1947.
. , .
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