A wajib-ul-arz is prima facie evidence of a custom of pre-emption. Whether such a custom survives a perfect partition depends on the specific nature of the custom and the facts; it does not automatically grant pre-emption rights across separate estates created by partition.

Judgement

Appeal from a judgment and decree of the High Court (July 15, 1912) reversing a judgment and decree of the Subordinate Judge of Aligarh (March 28, 1911).

The suit was instituted by the appellant in 1910 against the respondent and on© Bhawani Das, claiming a right of pre-emption over certain land which had been sold by Bhawani Das to the respondent. Bhawani Das did not defend the suit and was not a party to the appeal.

The property in suit formed part of a mauza known as Pala Kher in which both the appellant and Bhawani Das were sharers at the date of the. suit. By his plaint the appellant alleged that the usage of pre-emption existed in the mauza, and that the right thereto was recorded in a wajib-ul-arz in 1863 and again in 1870. It appeared that in 1906 the mauza, which up to that date had been jointly assessed as one mahal, was parti- tioned into five separate mahals and that the shares allotted to the appellant and to Bhawani Das respectively fell into different mahals. By a registered sale deed dated July 22, 1909, Bhawani Das sold the property in suit to the respondent, who had been in possession of it as mortgagee since 1892.

The terms of the wajib-ul-araiz of 1863 and of 1870 appear from the judgments of their Lordships. No new wajib-ul-arz was prepared at the partition.

The respondent pleaded that since the partition in 1906 no coparcenary interest existed between the appellant and Bhawani Das. He denied the alleged custom of pre-emption and pleaded that, in any case, it only applied so long as the village remained a single mahal. He further pleaded that he was a co-sharer with the vendor by reason of his possession as mortgagee.

The Subordinate Judge made a decree in favour of the plain tiff (appellant). He held that the wajib-ul-arz established that there was a custom of pre-emption in the village, that the appellant was entitled thereunder to purchase the property in preference to the respondent, and that this right was not affected by the partition into separate mahals.

The High Court (Sir Henry Richards C.J. and Tudball J.), by a judgment delivered on July 15, 1912, allowed the appeal. In the course of his judgment the learned Chief Justice said " The plaintiff was not a co-sharer in any property with the vendor. No joint and several responsibility existed between the plaintiff and the vendor for the payment of Government revenue. The plaintiff had no right to interfere in any way with the management of any part of the property sold; he was a total stranger in the sense that he did not belong to the coparcenary body which held mahal Bhawani Das..... The result of perfect partition is that the old coparcenary body ceases to exist and new coparcenary bodies in each mahal are created. If the reason for customs of pre-emption is to avoid the introduction of a stranger, the custom which the plaintiff alleges would defeat the object." The learned Chief Justice was also of opinion that the wajib-ul-arz did not record an existing custom, but merely an arrangement for the future between the members of the coparcenary body.

Tudball J. agreed with the learned Chief Justice. He further held that if the wajib-ul-arz had any force as evidence of custom the vendee, being a mortgagee with possession in the same mahal as the vendor, would be entitled thereunder to purchase even against the plaintiff.

Lowndes, for the appellant. The wajib-ul-araiz record a custom, not merely an agreement. Under Bengal Regulation VII. of 1822, s. 9, it was local usages which had to be recorded Circulars to Board of Revenue Officers, 1868 and 1870; Returaji Dubain v. Pahlwan Bhagat . (( 1910) I. L. R. 33 Allah. 196, at p. 217.) The signatures to the wajib-ul-arz of 1863 show that the village at that time was a purely Mahomedan village; this raises a presumption in favour of the custom, since among Mahomedans a right of pre-emption exists apart from any special custom Ameer Alis Mahomedan Law, vol. i., pp. 718, 720. The partition in 1906 di