Jagdam Sahai vs Mahabir Prasad - 1905 Supreme(All) 23

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1905 Supreme(All) 23

BANERJI, RICHARDS
Jagdam Sahai – Appellant
Versus
Mahabir Prasad – Respondent

JUDGMENT :

BANERJI, J.

1. This appeal arises in a suit for pre-emption in respect of the mortgage of three villages, viz. Ahrauli, Chak Ruknuddin and Chak-Latif. The Court of first instance decreed the claim, and the decree has been affirmed by the lower appellate Court. The mortgagee has preferred this appeal. The learned vakil who appears for him does not press the appeal as regards the share in Ahrauli. As regards the other two villages he contends, that the custom referred to in the wajib-ul-arz, upon which the claim is based, can only be regarded as the custom of pre-emption according to Muhammad an Law. The wajib-ul-arz of the two villages Chak Ruknuddin and Chak Latif recites that “the custom of pre-emption prevails and that every co-sharer has the right to transfer his property subject to the right of pre-emption” It does not set forth what the custom is, and the plaintiffs also in their plaint do not allege any particular custom as prevailing in the’ villages in question. Consequently, having regard to the ruling in Ram Prasad v. Abdul Karim, [1887] I.L.R., 9 All., 513 “in the absence of any allegation or proof as to the existence of any custom different from or not co-exten

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