Case: Audh Behari Singh Vs. Gajadhar Jaipuria &amp; Others

The premises in suit admittedly belonged to defendant 2 to 5 who are residents of Calcutta and they sold it by a conveyance executed on the 29th March 1941 and registered on the 3rd of April following, to defendant No. 1, also a resident of Calcutta, for the price of Rs. 7,000. The plaintiff is the owner of the two premises, to wit, premises Nos. D37/85 and D37/44, within the same Mohalla of the city of Banaras, which are in close proximity to the property in dispute and adjoin it on the northern and eastern sidesis averred by the plaintiff that there is from very early time a custom prevalent in the city of Banaras according to which the plaintiff was entitled to claim pre-emption of the property in dispute on the ground of vicinage. It is said that as soon as the plaintiff received news of the sale, he made an immediate assertion or demand of his rights and repeated the same in the presence of the witnesses as required by Muhammadan law and he further sent a registered notice to defendant No. 1 on the 21st May 1941 asking the latter to transfer the property to the plaintiff on receipt of the price which he had actually paid to the vendors. As the defendant No. 1 did not comply with this demand the present suit was brought.2. The defendant No. 1 alone contested the suit and the pleas taken by him in his written statement can be classified under four heads.In the first place, he denied that there was any custom of pre-emption amongst non-Muslims in the city of Banaras as alleged by the plaintiff.The second plea taken was that even if there was any custom of pre-emption it could not be availed of in a case like this where neither the vendors nor the vendee were natives of or domiciled in Banaras but were residents of a different province.The third contention raised was that even if there was any custom of pre-emption it could not be availed of in a case like this where neither the vendors nor the vendee were natives of or domiciled in Banaras but were residents of a different province.Lastly, it was contended that as the plaintiff himself was the landlord of the property in suit and the vendors were his tenants, he could not, under any law or custom, eject his own tenants by exercise of the right of pre-emption.3. The Civil Judge who tried the suit held, on the evidence adduced in the case, that there was in fact a custom of pre-emption in the city of Banaras, the incidents of which were the same as in Muhammadan law. He held however that the custom being a local custom it could not be enforced against either the vendors or the vendee in the present case, as none of them were natives of or domiciled in Banaras.The trial judge also found that the plaintiff did not make the requisite demands which are mandatory under Muhammadan law. The result was that the plaintiffs suit was dismissed and in view of the findings arrived at by him, the Civil Judge did not consider it necessary to decide the question as to whether the plaintiff being himself a landlord could assert any claim for pre-emption against his tenants on the basis of a custom.4. Against this decision the plaintiff took an appeal to the High Court of Allahabad which was heard by a Division Bench consisting of Mulla and Yorke, JJ. The learned Judges agreed with the trial court in holding that although there was a custom of pre-emption in the city of Banaras, yet the necessary condition for enforcing the custom in that locality was that the vendor and the vendee must be native of or domiciled in the city. As this condition was not fulfilled in this case the plaintiffs claim could not succeed. In the result the High Court affirmed the decision of the trial judge and dismissed the appeal.The other questions as to whether the plaintiff had made the demands in strict compliance with the rules of Muhammadan law and whether he could claim pre-emption against his own tenants on the basis of a right by custom were left undecided. The judgment of the High Court is dated the 29th August 1944. After this, the plaintiff applied for leave to appeal to the Judicial Committee. This application was refused by the High Court but he got special leave under an order of the Judicial Committee dated the 11th of December 1945. After the abolition of the jurisdiction of the Judicial Committee the appeal stood transferred to this court for disposal.

Reasoning:
10. Since the establishement of British rule in India, the Muhammadan law ceased to be the general law of the land and as pre-emption is not one of the matters respecting which Muhammadan law is expressly declared to be the rule of decision where the parties to a suit are Muhammadans, the courts in British India administered the Muhammadan law of pre-emption as between Muhammadans entirely on grounds of justice equity and goodthe right of pre-emption is not recognised in the Madras Presidency at all even amongst Muhammad is except on the footing of a custom.Rights of pre-emption have in some provinces like Punjab, Agra and Oudh been embodied in statutes passed by the Indian legislature and where the law has been thus codified, it undoubtedly becomes the territorial law of the place and is applicable to persons other than Muhammadans by reasons of their property being situatedother parts of India its operation depends upon custom and when the law is customary the right is enforceable irrespective of the religious persuasion of the parties concerned. Where the law is neither territorial nor customary, it is applicable only between Muhammadans as part of their personal law provided the judiciary of the place where the property is situated does not consider such law to be opposed to the principles of justice, equity and goodright of pre-emption as we have already stated, is an incident of property and attaches to the land itself. As between Muhammadans the right undoubtedly arises out of their personal law; but that is because the law of pre-emption is no part of the general law in India. Muhammadans live scatered all over our country and unless the right of pre-emption is regarded as part of their personal law they would lose the benefit of it altogether. Hence if a Muhammadan owns land in any local area and has co-sharers or neighbouring proprietors who are also Muhammadans, a right of pre-emption would accrue to the latter under the personal law of the Muhammadans which is enforced in this country since the British days on grounds of equity, justice and goods conscience. But though arising out of personal law the right of pre-emption is not a personal right; it is a real right attaching to the land itself.When the right is created by custom it would be, as the Privy Council has said, co-extensive with the right under Muhammadan law unless the contrary is proved. This means that the nature and incidents of the right are the same in both cases. In both it creates a right in the propert and not a mere personal claim against the vendor or the vendee and the essential pre-requisites to the exercise of the right and the terms on enforcement are identical in both. But this does not mean that the customary right must be personal to the inhabitants of a particular locality. It may be so, if that is the incident of the custom itself as established by evidence, but not otherwise. Under Muhammadan law the right is confined to persons of a particular religious persuasion because it has its origin in the Muhammadan law which is no longer a law of the land. But when it is creature of a custom the religious persuasion of the parties or the community to which they belong are altogether immaterial. All that is necessary to prove in such cases is that the right of pre-emption is recognised in a particular locality and once this is established, the land belonging to every person, in the locality could be subject to the custom, irrespective of his being a member of a particular community or group. The whole doctrine, as enunciated above, it based upon the fallacious assumption that the right of pre-emption is a personal right arising out of certain personal conditions of the parties like religion, nationality or domicile and this fallacy crept into our law simply because the right of pre-emption as between Muhammadans is administered as a part of their personal law in our country.23. The correct legal position must be that when a right of pre-emption rests upon custom it becomes the lex loci or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself.