Judgement

Appeal (No. 149 of 1924) from a decree of the High Court (March 13, 1920) reversing a decree of the Additional Subordinate Judge of Aligarh.

The suit was brought by the appellant, who claimed that by custom he had a right of pre-emption in respect of a 15 biswas share in a mauza. The share in question had belonged to a co-sharer with the appellant in the mauza, but the owner had been declared an insolvent under the Provincial Insolvency Act, 1907, upon a creditors application. His property had vested under the Act in the official assignee, who had sold the share to the first defendant, now represented by the respondents.

The first defendant by his written statement denied the existence of the custom alleged, and pleaded that if there was a custom it was not applicable in the circumstances of the case.

The facts appear from the judgment of the Judicial Committee.

The trial judge decreed the suit, but an appeal to the High Court was allowed, and the suit was dismissed. The learned judges (Tudball and Rafique JJ.) held that, assuming that a custom of pre-emption existed in the village, it did not apply to the sale by the official assignee, as it was an involuntary sale and was not a sale by a co-sharer. Also they were of opinion that the plaintiffs failure to bid at the auction, of which he had notice, amounted to a refusal to purchase. The appeal is reported at I. L. R. 42 A. 402.

1927. Feb. 1, 15. De Gruyther K.C. and Dube for the appellant. The appellant was entitled to pre-empt. There can be no effectual relinquishment until a sale has been completed, and the right operates in the case of a sale by an official assignee Kanhai Lal v. Kalka Prasad. (( 1905) I. L. R. 27

A. 670.) That case was rightly decided, since the principle of pre-emption rests upon a right to be substituted for a purchaser who is not a co-sharer Gobind Dayal v. Inayatullah (( 1885) I. L. R. 7 A. 775.) ; Kanta Prasad v. Mohan Bhagat (( 1909) I. L. R. 32 A. 45.) ; Budhai Sardar v. Sonaullah Mridha (( 1914) I. L. R. 41 C. 943.); Subhagi v. Muhammad I shah (( 1884) I. L. R. 6 A. 463.); Janki

v. Girjadat. (( 1885) I. L. R. 7 A. 482.) The decision in Indraj v. Brother Clement (( 1915) I. L. R. 37

A. 262.) was erroneous. The effect of the vesting in the official assignee is that he is placed in relation to the property in the same position as the insolvent. The statement in the wajib-ul-arz established the custom Digambar Singh v. Ahmad Said Khan (L. R. 42 I. A. 10.); Balgobind v. Badri Prasad. (( 1923) L. R. 50 I. A. 196.)

Dunne K.C. and Wallach for the respondents. The appellants failure to bid at the auction was a renunciation of any right which he had to pre-empt Naunihal Singh v. Ram Ratan (( 1916) I. L. R. 39 A. 127.); Shamsher Singh v. Piari Dat (( 1918) I. L. R. 40 A. 690.); Nathi Lal v. Dhani Ravi. (( 1916) 15 All. L. J. 315.) In any case the custom did not apply, as the sale was not by a co-sharer and was involuntary. Further, no custom of pre-emption was proved. The wajib-ul-arz did not use the word "custom"; it really recorded merely an arrangement between the co-sharers, or the views of the co-sharers, as in Anant Singh v. Durga Singh. (( 1910) L. R. 37 I. A. 196.)

De Gruyther K.C. in reply. In Digambar Singh v. Ahmad Said Khan (L. R. 42 I. A. 10.) the wajib-ul-arz did not specifically state the right as a custom. Having regard to the duty of the revenue officers to record only customs, a statement in a wajib-ul-arz should be presumed to refer to a custom unless the contrary clearly appears Returaji Dubain v. Pahlwan Bhagat. (I. L. R. 33 A. 196,216.) The auction sale was not of the share merely but also of the accrued rents.

March 4. The judgment of their Lordships was delivered by

VISCOUNT DUNEDIN. In this case, pre-emption in a share in a village is claimed by a co-sharer as against the buyer from the assignee in bankruptcy of another co-sharer. The claim was decreed by the Subordinate Judge, but his judgment was reversed and the case dis