Under Mahomedan Law, and customs co-extensive with it, the right of pre-emption applies only to the sale of full proprietary interests (full ownership) and does not extend to the sale of lease-hold interests.

Judgement

WANCHOO, CJI. :- 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 of the property sold. He based his claim to pre-emption as a shafi-i-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 whole of the city of Benaras and therefore he was entitled to pre-empt the property sold which was a khandar (i. e. a house in ruins). The plaint made the usual allegation that the necessary talabs had been performed and the respondent was entitled to pre-empt the sale.

2. The 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 property in dispute was situate. It was further alleged that even if the existence of custom of pre-emption was proved, it could not be applied to parjoti land (i. e. lease-hold land). It was also denied that the respondent was either shafi-i-jar or shafi-i-khalit. It was further pleaded that as the vendors and the vendee lived in Calcutta, they were not governed by the custom of pre-emption, if any, prevalent in the city 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 talabs had been performed.

3. The trial court held that the necessary talabs 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 pre-emption in the locality, which was co extensive with Mahomedan 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.

4. The respondent then went in appeal and his contention, in one of the grounds of appeal, was that as the custom of preemption 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 vendees 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 arose before the first appellate court, namely-(i) whether the custom as proved bound Hindus also, and (ii) whether the fact that the 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 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.

5. The question whether Parjoti lands could be subjected to pre-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