Judgement

Consolidated Appeals (Nos. 29, 30, 31 of 1928) from three decrees of the Chief Court of Oudh (November 20, 1928) affirming two decrees and reversing one decree of the Subordinate Judge of Gonda.

A village in Oudh, called Cookenagar, was divided into blocks by its proprietors and the blocks offered for sale at fixed prices. The appellant acquired one block by a sale deed executed and registered on June 9, 1924. He brought three suits against the respondents, claiming that under the Oudh Laws Act, 1876, s. 9, he had the right to pre-empt other blocks which had been purchased by the respondents respectively ; he pleaded that he had not been given notice of the sales as required by s. 10 of the Act.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed two of the suits on the ground that the sales to the defendants therein were made before June 9, 1924, the date when the sale to the plaintiff was completed and registered, and that consequently the plaintiff was not entitled to notice of them; he decreed the third suit, finding that the sale there was after that date.

Upon appeals to the High Court it was held that the suits could not be maintained, as there was no right of pre-emption in the village. The learned judges (Stuart C. J. and Mohammad Raza J.) were of opinion that no custom of pre-emption was proved to exist in the village, and that the presumption enacted in s. 7 of the Act being conditional upon there being a village community did not arise, since in their view there was no village community in Cookenagar, either in 1876 or in 1924.

1929. June 4, 6, 7. Dunne K.C. and Jopling for the appellant. By s. 7 of the Act a custom of pre-emption is to be presumed to exist in the village. The appellant had a right to pre-empt under s. 9 of the Act, both as a co-sharer in the mahal and as a member of the village community, and he was entitled to notice of the sales under s. 10. It is not material that there were agreements to sell before the registration of the sale to the appellant, as by S. 54 of the Transfer of Property Act a contract of sale creates no interest in the land. The expression " village community " in s. 7 is not used in any technical sense ; where there are a number of co-sharers there is a village community Rahim-ud-din

v. Rewal (( 1903) L. R. 30 I. A. 39.); Munnu Lal v, Muhammad Ismail. (( 1904) L. R. 31 I. A. 212.) It is not material that some or all of the co-sharers resided out of India.

De Gruyther K.C. and Parikh for the respondents in appeals Nos. 29 and 30; Dube for respondent in appeal No. 31. There was no proof of a custom of pre-emption in Cookenagar, and the village was not a " village community " so as to raise a presumption of the existence of the custom under s. 7 of the Act Drigbijai v. Court of Wards (( 1901) 5 Oudh Cases, 266.); Narindra Bahadur Singh v. Balkaran Singh (( 1904) 7 Oudh Cases, 275.); Ram Dayal v. Chaudhri Mohammad Abdul Basit (( 1908) 12 Oudh Cases, 1.). Rahim-ud-din v. Rewal (( 1903) L. R. 30 I. A. 39.) applied to pre-emption in the Punjab, where the tenures and the relevant legislation are different from those in Oudh. Even if a custom of pre-emption is to be presumed under s. 7 the presumption is rebutted, as in the circumstances no custom of pre-emption could have arisen. But even if the plaintiff had a right to pre-empt he waived that right, as he definitely declined to purchase more than the one block. [Reference was made to the cases in Oudh referred to in their Lordships judgment.]

Dunne K.C. in reply. By s. 6 the plaintiff had a right to acquire " in preference to all other persons," that includes persons who have by contract a right to call for a conveyance.

The evidence did not establish any waiver by the plaintiff of his rights.

July 5. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. These three consolidated appeals raise a somewhat unusual question under the law of preemption in Oudh.

The facts ar