# MUNNILAL v. BISBWANATH PRASAD & ORS

- **Citation:** [1968] 1 S.C.R. 554
- **Court:** Supreme Court of India
- **Decided:** 1967-09-15
- **Case number:** Civil Appeal No. 2460 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/munnilal-v-bisbwanath-prasad-ors-4143
- **Pages:** 7

## Headnote

MUNNILAL
v.
BISBWANATH PRASAD & ORS.
September 15, 1967
(K. N. WANCHOO, C.J.,_ R. S. BACHAWAT, V. RAMASWAMI •
. '
G. K. MrrTER AND K. S. HEGDE, JI.)
Pre-limption-Whether lease-hold (Parjoti) land can be pre-empt.
ed under a cwrtom in Benaras co-extensive with Mahomedan Law.
A
B
The respondent brought a suit for pre-emption of certain leasehold (Parjoti) land in Benaras w!μch was sold under a sale deed in
February, 1942. He claimed that there was a custom of pre-emption
in the whole of the city of Benaras, that he was the owner of a house C
and land adjacent to the property sold, that he was entitled to pree_mpt as a shafi-i-jar (pre-emptor by right of vicinage) and also as a
shafi-i-khalit (pre-emptor by right of appendages), and that the necessary talabs had been performed.
The Trial Court held that there was a custom of pre-emption in
the locality which was ~xtensive with Mahomedan Law of preemption. that the respondent was the owner of a contiguous house D
and therefore entitled to sue, and had performed the necessary
talabs but that the vendors and the vendee were not governed by
the custom as they did not live in Benaras. The first appellate court
in appeal took the view that the fact that the vendors and the vendee
did not reside in Benaras made no difference to the application
of the custom to them; it also examined the question whether least·
hold property could be pre-empted and held that though the vendors were lessees and paid some ground-rent, they were for all in~ E
tents and purposes owners and therefore the land was pre-emptlble.
It therefore allowed the appeal and granted a decree for pre-emption.
In second appeal the High Court confirmed the view that the
custom would bind the vendors and the vendee even though they
did not reside in Benaras and further held that the custom of proemption even in the case of transfer of parjoti land had been prov- F
ed. It therefore dismissed the appeal.
In the appeal to this Court it was contended inter alia (i) that
the High Court had mis-read the judgment of the Courts below
when it held that they had found the custom of pre-emption existed
even with respect to transfer of parjoti fand in the city of Benaras
and (ii) that Mahomedan Law recognises pre-emption only with
respect to full proprietary rights and does not recognise pre-emp. G
tion with respect to lease-hold rights: as the custom in Benaras
which was found proved was co-extensive with Mahomedan La11•.
there could be no pre-emption of the land which had been sold by
the impugned sale deed because the land was parjoti land.
HELD: As the property sold was lease-hold land. it was not open
to the respondent to pre-empt it under a custom which was coextensive with Mnhomedan Law whatever might be the ground on H
which pre-emption was claimed. [560-B-C]
(i) The High Court was not right in saying that it had been
found by the courts below that the custom of pre-emption prevailing
in the city of Benaras applied even to transfer of parjoti land. All
MUNN! LAL v. BISHWA.NA'rH (W(llw/wo, C'.J.)
555
A that the two courts had found was that the custom prevailing in the
city of Benaras was co-extensive with Mahomedan Law. [558C-D)
(ii) It is well established that under the Mahomedan Law of
pre-emption there must be full ownership in the land pre-empted
and therefore the right of pre-emption does not arise on the sale of
leasehold interest in land. Furthermore, the pre-emptor also must
have full ownership in order to maintain a suit for pre-<!mption for
B reciprocity is the basis of Mahomedan Law of pre-<!mption. [559G]
Baboo Ram Galam Singh v. Nursinq Sahoy & others, (1875) XXV
Weekly Reporter (Sutherland) 43; Phu! Mohammad Khan v. Quazi
Kutubuddin. I.L.R. [1937] 16 Pat. 519; Dashrathlal Chhaganlal v. Bai
Dhondubai, I.L.R. [1941) Bombay 460; Rameshwar Lal Marwari v.
Pandit Ramdeo, A.I.R. 1957 Patna, 695; and Oudh Behari Singh v
Gajadhar Jaipuriya, A.LR. 1955 AIL 698; referred to.
·
C
Bhagwati Prasad v. Balgobind, A.I.R. 1933 Ottdh

## Text

MUNNILAL
v.
BISBWANATH PRASAD & ORS.
September 15, 1967
(K. N. WANCHOO, C.J.,_ R. S. BACHAWAT, V. RAMASWAMI •
. '
G. K. MrrTER AND K. S. HEGDE, JI.)
Pre-limption-Whether lease-hold (Parjoti) land can be pre-empt.
ed under a cwrtom in Benaras co-extensive with Mahomedan Law.
A
B
The respondent brought a suit for pre-emption of certain leasehold (Parjoti) land in Benaras w!μch was sold under a sale deed in
February, 1942. He claimed that there was a custom of pre-emption
in the whole of the city of Benaras, that he was the owner of a house C
and land adjacent to the property sold, that he was entitled to pree_mpt as a shafi-i-jar (pre-emptor by right of vicinage) and also as a
shafi-i-khalit (pre-emptor by right of appendages), and that the necessary talabs had been performed.
The Trial Court held that there was a custom of pre-emption in
the locality which was ~xtensive with Mahomedan Law of preemption. that the respondent was the owner of a contiguous house D
and therefore entitled to sue, and had performed the necessary
talabs but that the vendors and the vendee were not governed by
the custom as they did not live in Benaras. The first appellate court
in appeal took the view that the fact that the vendors and the vendee
did not reside in Benaras made no difference to the application
of the custom to them; it also examined the question whether least·
hold property could be pre-empted and held that though the vendors were lessees and paid some ground-rent, they were for all in~ E
tents and purposes owners and therefore the land was pre-emptlble.
It therefore allowed the appeal and granted a decree for pre-emption.
In second appeal the High Court confirmed the view that the
custom would bind the vendors and the vendee even though they
did not reside in Benaras and further held that the custom of proemption even in the case of transfer of parjoti land had been prov- F
ed. It therefore dismissed the appeal.
In the appeal to this Court it was contended inter alia (i) that
the High Court had mis-read the judgment of the Courts below
when it held that they had found the custom of pre-emption existed
even with respect to transfer of parjoti fand in the city of Benaras
and (ii) that Mahomedan Law recognises pre-emption only with
respect to full proprietary rights and does not recognise pre-emp. G
tion with respect to lease-hold rights: as the custom in Benaras
which was found proved was co-extensive with Mahomedan La11•.
there could be no pre-emption of the land which had been sold by
the impugned sale deed because the land was parjoti land.
HELD: As the property sold was lease-hold land. it was not open
to the respondent to pre-empt it under a custom which was coextensive with Mnhomedan Law whatever might be the ground on H
which pre-emption was claimed. [560-B-C]
(i) The High Court was not right in saying that it had been
found by the courts below that the custom of pre-emption prevailing
in the city of Benaras applied even to transfer of parjoti land. All
MUNN! LAL v. BISHWA.NA'rH (W(llw/wo, C'.J.)
555
A that the two courts had found was that the custom prevailing in the
city of Benaras was co-extensive with Mahomedan Law. [558C-D)
(ii) It is well established that under the Mahomedan Law of
pre-emption there must be full ownership in the land pre-empted
and therefore the right of pre-emption does not arise on the sale of
leasehold interest in land. Furthermore, the pre-emptor also must
have full ownership in order to maintain a suit for pre-<!mption for
B reciprocity is the basis of Mahomedan Law of pre-<!mption. [559G]
Baboo Ram Galam Singh v. Nursinq Sahoy & others, (1875) XXV
Weekly Reporter (Sutherland) 43; Phu! Mohammad Khan v. Quazi
Kutubuddin. I.L.R. [1937] 16 Pat. 519; Dashrathlal Chhaganlal v. Bai
Dhondubai, I.L.R. [1941) Bombay 460; Rameshwar Lal Marwari v.
Pandit Ramdeo, A.I.R. 1957 Patna, 695; and Oudh Behari Singh v
Gajadhar Jaipuriya, A.LR. 1955 AIL 698; referred to.
·
C
Bhagwati Prasad v. Balgobind, A.I.R. 1933 Ottdh 161; distihguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2460 of
1966.
Appeal by special leave from the judgment and order dated
D November 9, 1960 pf the Allahabad High Court in Second Appeal
No. 2074 of 1944.
·
J. P. Goyal and Sobhag Mal Jain, for the appellants.
Yogeshwar Prasad and M. V. Goswami, for the respondent.
The Judgment of the Court was delivered by
E
Wanchoo, C. J. The main question raised in this appeal by
special leave is whether Parjoti land (i.e. a permanent lease-hold
interest) in the city of Benaras can be pre-empted. The respondent
brought a suit for pre-emption of the land in dispute: which was
sold under a sale deed dated February 6, 1942. The case of the
respondent was that he was owner of a house and land to the south
F of the property sold. He based his claim to pre-emption as a shafii-jar (i.e. pre-emptor by right of vicinage) and also as a shafi-i-khalit
(i.e. pre-emptor by right of appendages). His case was that there
was such a custom of pre-emption prevailing in the whtJle of the
city of Benaras and therefore he was entitled ~o pr~-empt the pro·
perty sold w:1ich was a khandar (i.e. a house 111 rums). The plamt
made the ususal allegation that the necessary taJabs had been
G performed and the respondent was entitled to pre-empt the sale.
'i'he suit was resisted by the vendee. whose legal representative is the appellant before this Court. The vendee denied that
there was any custom of pre-emption in the city of Benaras, and
particularly, in the mohalla in which the j)TOperty ~n dispute was
R situate. It was further alleged that even tf the existence of custom of pre-emption was proved, it could not be applied to parjoti
land (i.e. lease-htild land). It was also denied that the respondent
was either Shafi-i-jar or sltafi-i-khalit. It was further pleaded that
as the vendors and the vendee lived in Calcutta. they were not
556
S1JPREllE COURT REp0RTS
[1968] I s.C.R.
governed by the custom of pre-emption,. if any, prevalent in the city A
of Benaras. The performance of talabs was also disputed. The trial
court framed four issues, namely, (i) whether the respondent had
a right to sue, (ii) whether the custom of pre-emption prevailed in
Mohalla Baradeo, in the city of Benaras, (iii) whether the vendors
and the vendee. as residents of Calcutta, were governed by the
custom of pre-emption, and (iv) whether the ta/abs had been per- B
formed.
The trial court held that the necessary ta/abs had been performed. It also held that the respondent was the owner of the
·contiguous house and had therefore the right to sue.
On the question of custom. the. trial court held that there was a custom of preemption in the locality, which was co-extensive with Mahomedan C
Law of pre-emption. Finally, the trial court held that the vendors
.and the vendee were not governed by the custom, as they did not
live in Benaras.
In this view of the matter, the suit was dismissed
with costs.
the respondent then went in appeal, and his contention, in
one of the grounds of appeal, was that as the custom of pre-emp- D
tion was held by the trial court to have been proved (and it was
co-extensive with Mahomedan Law), the custom
would bind
Hindus also. It was further contended that the fact that the vendors and the vendee did not live in Benaras made no difference
:and they would be bound by the custom prevailing in the locality
in which the property was situate. Two main questions thus E
arose before the first appellate court,
namely-(i) whether the
custom as proved bound Hindus also, and (ii) whether the fact that
lhe vendors and the vendee did not live in Benaras exempted them
from being governed by the custom. On the question of custom,
the first appellate court observed that the custom in question had
been proved to exist in the locality and was co-extensive with F
Mahomedan Law of pre-emption and that this finding had not
been challenged before it. On the second question, the first appellate court held that the fact that the vendors and the vendee did
not reside in Benaras made no difference to the application of the
·custom to them with respect to the property transferred.
The question whether Parjoti lands could be subjected le pre- G
emption was not decided by the trial court, for it dismissed· the
suit on the ground that the vendors and the vendee not being residents in Benaras, were not bound by the custom. The first appellate court having found that the vendors and the vendee were so
'bound went into the question whether lease-hold property could
be pre-empted. It held that the property was heritable and trans- R
ferable and though the vendors were lessees and paid some groundrent they were for all intents and purposes owners and 'therefore
the land was pre-emptible. Jt therefore allowed the appeal and
granted a decree for pre-emption.
MUNNILAL v. BISHWANATH (Wrmchoo, C.J.)
55i
A
Then followed a second appeal to the High Court by the
vendee and two main questions were raised there, namely-(i) that
the custom of pre-emption could not prevail against the vendors
and the vendee as they were not residents of Benaras and (ii) that
in any case it did not extend to lease-hold land or parjoti land.
The High Court held that the custom would bind the vendors and
B the vendee in this case even though they were not residents of
Benaras. On the question whether the custom prevalent applied
to parjoti land or not, the High Court seems to have read the
judgments of ,the two lower courts as holding that the custom of
pre-emption even in the case of transfer of parjoti land had been
proved. The High Court therefore dismissed the appeal.
The
C vendee's heir then obtained special leave from this Court; and tha!
is how the matter has come before us.
A number of questions has been raised on behalf of the appellant, but it is unnecessary to go into all of them. The main point
that has been urged on his behalf is .that the High Court had
misread the judgments of the two courts below when it held that
D they had found that the. custom of pre-emption existed even
with respect to transfer of parjoti Jami in the city of Benaras. Tt
is argued that all that the two lower courts have held is that the
custom of pre-emption co-extensive with Mahomedan Law existed
in the city/of Benaras, and the first appellate court had further
held that such a custom bound even Hindus. whether they were
residents in Benaras or not. We are of opinion that this contention
>
E is well-founded. We have already referred to the findings of the
two lower courts. The finding of the trial court is clear and is
expressed in these words: -
"I hold that there is a custom of pre-emption C<H:Xtensive with Mahomedan Law."
p The first appellate court endorsed this finding in these words-
"The trial court found that the custom in question
existed in the locality and was co-extensive with Mahomedan Law of pre-emption and the finding is not challenged
in appeal."
Further in the grounds of appeal by the respondent. one of the
G grounds was in these terms: -
H
"Because when the lower court has held that the
custom of pre-emption as obtaining in Benaras is co-extensive with Mahomedan
Law which embraces the
zimmees the lower court has erred in holding that the
plaintiff could not enforce his right of pre-emption against
the defendants."
It is thus clear that all that was found by the two lower courts
was that there was a custom of pre-emption prevailing in the city
of Benaras which was co-extensive with Mahomedan Law and
SUPBllMll: OOUBT BllPORTS
[1968] 1 s.o.n.
which bound Hindus also whether they were residents there or A
not, so long as the property to be pre-empted was in the city of
Benaras.
It is true that the first appellate court held that the custom
applied to lease-hold land also because it was of opinion that the
holder of parjoti land was for all intents and purposes the owner.
But that does not mean that the two courts had found that the B
custom as such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law; whether it applied to parjoti land or not would depend upon the provisions bf
Mahomedan Law.
The first appellate court which was apparently not unaware of
the provisions of Mahomedan Law with respect to pre-emption C
seems to have held that though there was some ground-rent payable, the holder of parjoti land was for all intents and purposes the
owner. The High Court was therefore not right in saying that it
had been found by the two courts below that the custom of preemption prevailing in the city of Benaras applied even to trans&r
of parjoti land. All that the two courts had found was that the D
custom prevailing in the city of Benaras was co-extensive with
Mahomedan Law.
This immediately raises the question as to what is the extent
of Mahomedan Law in the matter of pre-emption. The contention on behalf of the appellant is that Mahomedan Law recognises
pre-emption only with respect to full proprietary rights and that E
it does not recognise pre-emption with respect to lease·hold rights.
We are of opinion that this contention is well-founded. In Principles of Mahomedan Law by D. F. Mulla (15th Edition), the extent
of pre-emption in Mahomedan Law is thus stated at p. 207: -
"There must be also full ownership in the land preempted, and therefore the right of pre-emption does not
F
arise on the sa!le of a lease-hold interest in land."
This statement of law is supported by a number of deCisions to
which reference may now be made.
The earliest of these decisions is Baboo Ram Go/am Singh v. Nursing Sahoy & others(').
In that case, mokureree land was sold and the owner wanted to
pre-empt the sale. The court held that the mokurereedar did not G
s\and in the same position as the malik and the law of pre-emption only applied to the sale of land of a malik i.e., proprietbr.
Therefore there could be no pre-emption where the sale was of
only· mokureree rights which were permanent lease-hold rights.
The next case to which reference may be made is Phu/
Mohammad Khan v. Quazi Kutubuddin('). In that case the Patna B
High Court held that Mahomedan Law of pre-emption did not
(') (1875) XXV Weekly Reporter (Sutherland) 43.
(') I.L.R. [1937] 16 Pat. 519. ·
I
=
./
MlJNNILAL v. BISHWANATH (Wanclwo, C.J.)
559
A apply to pre-empting Mukarrari and raivati rights, the sale of such
interests being not of full proprietary interest.
The next case to which reference may be made is Dashrathlal
Chhaganlal v. Bai Dhondubai('). There also the right of pre·
emption arose by custom and was co-extensive with Mahomedan
Law. The property sold in that case was a plot of land with two
B rooms on it in which the vendors had transferable and heritable
rights and some rent was paid to Government on acc<lhnt of the
permanent lease on which the land was held. The High .Court
held that Mahomedan Law of pre-emption with which the custom
of pre-emption was co-extensive applied only as between freeholders, that is to say, the neighbouring land in respect of which
c the custom was claimed must be freehold and the land sought to
be pre.empted must also be freehold. It did not arise on the sale
of leasehold interests in land.
The next case to which reference may be made is Rameshwai·
Lal Marwari v. Pandit Ramdeo Iha('). In that case rayati land
had been sold and a suit was brought to pre-empt that sale. The
D Patna High Court held that there could be no pre-emption with
respect to rayati land which amounted to a leasehold, whatsoever
might be the ground on which the pre-emption might be sought
under Mahomedan Law.
These cases bear out the proposition which has been accepted
without dissent by High Courts that Mahomedan Law of preE emption applies only to sales where they are of full ownership
and pre-emptors must also base their claim on similar full ownership whether pre-emption is claimed on ground of co-sharership,
vicinage or participation in amenities and appendages. Learned
counsel for the respondent relied on Bhagwati Prasad v. Balgobind\') for the proposition that there could be pre-emption of
F leasehold interest also for that was a case of lease. Pre-emption
there was claimed not under Mahomedan Law but under the Oudh
Laws Act. That case therefore does not help the respondent. The
law in our opinion is quite clear and it is that under the Mahomedan Law of pre-emption there must be full ownership in the land
pre-empted and therefore the right of pre-emption does not arise
on the sale of leasehold interest in land. It may be added that
G the pre-emptor also must have full ownership in order to maintain
a suit for pre-emption, for reciprocity is the basis of Mahomedan
Law of pre-emption.
In this view of the matter, as the custom which was found
proved was co-extensive with Mahomedan Law there can be no
pre-emption of the land which had been sold by the impugned
B sale-deed because the land was parjoti land i.e. leasehold. We
may in this connection refer to Oudh Belwri Singh v. Gajadhar
(') I.L.R. [1941] Born. 460.
! ') A.LR 1957 Pat. 695.
(') AI.R. 1933 Oudh 161.
SuPRE!o!E COURT REPORTS
(1968) 1 S.C.R
Jaipuriya('). That was also a case of pre.emption relating to this A
very mohalla in the city of Benaras, and the land· pre-empted was
parjoti land i.e. leasehold. It was held by the Allahabad High
Court that the sale of parjoti land corresponding to lessee's right
could not be a subject of pre-emption. The learned Judges pointed
out in tbat case that no case had been brought to their notice in
which lessee's rights were held pre-emptible under Mahomedan B
Law. As the property sold was leasehold land it was not open
to the respondent to pre-empt it under a· custom which was coextensive with Mahomedan Law whatever might be the ground
on which pre-emption was claimed. We
therefore allow the
appeal. set aside the decree of the High Court and of the first
appellate court and dismiss the suit. The appellant will get his
costs throughout from the respbndent, Bishwanath Prasad.
C
R.K.P.S.
'.Appeal allowed.
(') A.I.R. 1955 All. 698.