Case: Munni Lal Vs. Bishwanath Prasad &amp; Ors

such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law, whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law. The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre-emption seems to have held that though there vas some ground-rent payable, the holder of parjoti land was for all intents and purposes the owner. The High Court was therefore not right in saying that it had been found by the two courts below that the custom of pre-emption prevailing in the city of Benaras applied even to transfer of parjoti land. All that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan Law. 9. This immediately raises the question as to what is the extent of Mahomedan Law in the matter of pre-emption. The contention on behalf of the appellant is that Mahomedan Law recognises pre-emption only with respect to full proprietary rights and that it does not recognise pre-emption with respect to lease-hold rights. We are of opinion that this contention is well founded. In Principles of Mahomedan Law by D. F. Mulla (15th Edition), the extent of pre-emption in Mahomedan Law is thus stated at p. 207 :-"There must be also full ownership in the land pre-empted, and therefore the right of pre-emption does not arise on the sale of a leasehold interest in land. This statement of law is supported by a number of decisions to which reference may now be made. The earilest of these decisions is Baboo Ram Golam Singh v. Nursing Sahoy, (1875) 25 Suth WR 43. In that case, mokureree land was sold and the owner wanted to pre-empt the sale. The court held that the mokurereedar did not stand in the same position as the malik and the law of pre-emption only applied to the sales of land of a malik i. e., proprietor. Therefore there could be no pre-emption where the sale was of only mokureree rights which were permanent lease-hold rights. 10. The next case to which reference may be made is Phul Mohammad Khan v. Qazi Kutubuddin, ILR (1937) 16 Pat 519 = (AIR 1937 Pat 578 ). In that case the Patna High Court held that Mahomedan Law of pre-emption did not apply to pre-empting mukarrari and raiyati rights, the sale of such interests being not of full proprietary interests. 11. The next case to which reference may be made is Dashrathlal Chhaganlal v. Bai Dhondubai, ILR (1941) Bom 460 = AIR 1941 Bom 262 ) There also the right of pre-emption arose by custom and was co-extensive with Mahomedan Law. The property sold in that case was a plot of land with two rooms on it in which the vendors hat transferable and heritable rights and some rent was paid to Government on account of the permanent lease on which the land was held. The High Court held that Mahomedan Law of pre-emption with which the custom of pre-emption was co-extensive applied only as between freeholders, that is to say, the neighbouring land in respect of which the custom was claimed must be free hold and the land sought to be pre-empted must also be freehold. It did not arise on the sale of leasehold interest in land. 12. The next case to which reference may be made in Rameshwar Lal v. Ramdeo Jha, AIR 1957 Pat 695 . In that case rayati land had been sold and a suit was brought to pre-empt that sale. The Patna High Court held that there could be no pre-emption with respect to rayati land which amounted to a leasehold, whatsoever might be the ground on which the pre-emption might be sought under Mahomedan Law. 13. These cases bear out the proposition which has been accepted without dissent by High Courts that Mahomedan Law of pre-emption applies only to sales where they are of full ownership and pre-emptors must also base their claim on similar full ownership whether pre-emption is claimed on ground of co-sharership, vicinage or participation in amenities and appendages. 14. Learned counsel for the respondent relied on Bhagwati Prasad v. Balgobind, AIR 1933 Oudh 161 for the proposition that there could be pre-emption of leasehold interest also for that was a case of lease. Pre-emption there was claimed not under Mahomedan Law but under the Oudh Laws Act. That case therefore does not help the respondent.The law in our opinion is quite clear and it is that under the Mahomedan law of preemption there must be full ownership in the land pre-empted and therefore the right of pre-emption does not arise on the sale of leasehold interest in land. It may be added that the pre-emptor also must have full ownership in order to maintain a suit for pre-emption for reciprocity is the basis of. Mahomedan Law of pre-emption. 15. In this view of the matter, as the custom which was found proved was co-extensive with Mahomedan Law, there can be no pre-emption of the land which had been sold by the impugned sale-deed because the land was parjoti land i. e. leasehold. We may in this connection refer to Oudh Behari Singh v. Gajadhar Jaipuriya, AIR 1955 All 698 . That was also a case of pre-emption relating to this very mohalla in the city of Benaras, and the land pre-empted was parjoti land i e. leasehold. It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessees right could not be a subject of pre-emption. The learned Judges pointed out in that case that no case had been brought to their notice in which lessees rights were held pre-emption under Mahomedan Law. As the property sold was leasehold land it was not open to the respondent to pre-empt it under a custom which was co-extensive with Mahomedan Law whatever might be the ground on which pre-emption was claimed. 16.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is thus clear that all that was found by the two lower courts was that there was a custom of pre-emption prevailing in the city of Benaras which was co-extensive with Mahomedan Law and which bound Hindus also whether they were residents there or not, so long as the property to be pre-empted was in the city of Benaras8. It is true that the first appellate court held that the custom applied to leasehold land also because it was of opinion that the holder of parjoti land was for all intents and purposes the owner. But that does not mean that the two courts had found that the custom as such related to parjoti land. The custom that was prevailing was co-extensive with Mahomedan Law, whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law. The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre-emption seems to have held that though there vas some ground-rent payable, the holder of parjoti land was for all intents and purposes the owner. The High Court was therefore not right in saying that it had been found by the two courts below that the custom of pre-emption prevailing in the city of Benaras applied even to transfer of parjoti land. All that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan LawIn this view of the matter, as the custom which was found proved was co-extensive with Mahomedan Law, there can be no pre-emption of the land which had been sold by the impugned sale-deed because the land was parjoti land i. e. leasehold. We may in this connection refer to Oudh Behari Singh v. Gajadhar Jaipuriya, AIR 1955 All 698  . That was also a case of pre-emption relating to this very mohalla in the city of Benaras, and the land pre-empted was parjoti land i e. leasehold. It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessees right could not be a subject of pre-emption. The learned Judges pointed out in that case that no case had been brought to their notice in which lessees rights were held pre-emption under Mahomedan Law. As the property sold was leasehold land it was not open to the respondent to pre-empt it under a custom which was co-extensive with Mahomedan Law whatever might be the ground on which pre-emption was claimed.