Shri Audh Behari Singh Vs. Gajadhar
Jaipuria & Ors  INSC 52 (23 April 1954)
AIYYAR, T.L. VENKATARAMA MAHAJAN, MEHAR CHAND
(CJ) BOSE, VIVIAN BHAGWATI, NATWARLAL H.
CITATION: 1954 AIR 417 1955 SCR 70
CITATOR INFO :
RF 1962 SC1476 (3,22,25,31) R 1966 SC1977
Custom-Pre-emption-City of Banaras-Local
Custom of Pre- emption-Such right-Incident of property and attaching to land.
HEld, that a local custom of pre-emption
exists in the city of Banaras and the right attaches at least to all house
properties situated within it and no such incident of custom is proved which
would make the right available only between persons who are either natives of
Banaras or are domiciled therein.
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
The right of pre-emption is an incident of
property and attaches to the land itself.
Byjnath v. Kapilmon (24 W.R. 95) and
Parsashth Nath v. Dhanai' (32 Cal. 988) disapproved.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 15 of 1951.
Appeal from the Judgment and Decree, dated
the 29th August.
1944, of the High Court of Judicature at
Allahabad (Mulla and Yorke JJ.) in First Appeal 71 No. 157 of 1942, arising out
of the Judgment and Decree, dated the 19th November, 1941, of the Court of the
Civil Judge at Banaras in Original Suit No. 79 of 1941.
Achhru Ram, (N. C. Sen and R. C. Prasad, with
him) for the appellant.
C.K. Daphtary, Solicitor-General for India
and S. P.Sinha, (J. C. Mukherji, Shaukat Husain, and S. P. Varma, with them)
for respondent No. 1.
1954. April 23. The Judgment of the Court was
delivered by MUKERJEA, J.-The plaintiff, who is the appellant before us,
commenced the suit, out of which this appeal arises, in the Court of the Civil
Judge at Banaras (being Original Suit No. 79 of 1941) for enforcement of his
right of pre-emption in respect of an enclosed plot of land with certain
structures upon it, situated within Moballa Baradeo in the city of Banaras and
bearing Municipal No. D 37/48. The premises in suit admitted by belonged to
defendants Nos. 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.
D 37/85 and D 37 /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 sides respectively.
It is 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. I on
the 21st May, 1941, askine 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,
72 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 the plaintiff had not made the two demands in the
proper manner as required by Muhammadan Law and by reason of non-compliance
with the essential pre-requisites to a claim for preemption, the suit -was
bound to fail. 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
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 plaintiff's 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.
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 73 and the vendee must be natives of or domiciled in the
As this condition was not fulfilled in this
case the plaintiff's 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 December, 1945. After the
abolition of the jurisdiction of the Judicial Committee the appeal stood
transferred to this Court for disposal.
The contentions that have been raised before
us by the parties to this appeal practically centre round one point.
It is not disputed by either side that there
is a custom of pre-emption in the entire city of Banaras; but whereas the
respondents contend that the custom obtains exclusively amongst persons who are
inhabitants of the city 'or-are domiciled therein, the case of the appellant is
that the custom admits of no such restriction or limitation and all those who
own property in the city are governed by the custom, it being immaterial
whether or not they are the natives of the place or are or are not resident
Various contentions have been raised by the
learned counsel on both sides in support of their respective cases and we have
been treated to an elaborate discussion regarding the nature of the right of
pre-emption as is recognised in the Muhammadan Law and the incidents that
attach to it, when it is not regulated by law but is founded on custom said to
be obtaining in a particular locality.' Before we examine the arguments that
have been placed before us by the learned counsel appearing for the parties, it
may be necessary to make a few general observations regarding the law or laws
which govern the exercise of the right of pre-emption in India at the present
10 74 The Privy Council has said in more
cases than one(1), that the law of pre-emption was introduced in this country
by the Muhammadans. There is no indication of any such conception in the Hindu
Law and the subject has not been noticed or discussed either in the writings of
the Smriti writers or in those of later commentators. Sir William Macnaghten in
his Principles and Precedents of Mahomedan Law (2 ) has referred to a passage
in the Makanirvana Tantra which, according to the learned author, implies that
pre-emption was recognised as a legal provision according to the notions of the
But the treatise itself is one on mythology,
not on law and is admittedly a recent production. No value can be attached to a
stray passage of this character the authenticity of which is not beyond doubt.
During the period of the Mughal emperors the
law of pre- emption was administered as a rule of common law of the land in
those parts of the country which came under the domination of the Muhammadan
rulers, and it was applied alike to Muhammadans and Zimmees (within which
Christians and Hindus were included), no distinction being made in this respect
between persons of different races and creeds (3).
In course of time the Hindus came to adopt
pre-emption as a custom for reasons of convenience and the custom is largely to
be found in provinces like Bihar and Gujerat which had once been integral parts
of the Muhammadan empire.
Opinions differ as to whether the custom of
preemption amongst village communities in Punjab and other parts of India was
borrowed from the Muhammadans or arose independently of the Muhammadan Law,
having its origin in the doctrine of "limited right" which has always
been the characteristic feature of village communities(4). Possibly much could
be said in support of either view, and there is reason to think that even where
the Muhammadan Law was borrowed (1)Vide Jadulat v, Janki Koer, 39 I.A. 101,
106; Digambar Singh v. Ahmad, 42 I.A. 10, 18.
(2) Vide, page 14.
(3) Vide Hamilton's Hedaya, Vol. III, P. 592.
(4) Vide P.R. 98 of 1894.
75 it was not always borrowed in its
entirety. It would be useful to refer in this connection to the following
observations of the Judicial Committee in Digambar v.
" In some cases the sharers in a village
adopted or followed the rules of the Mahomedan Law of pre-emption, and in such
cases the custom of the village follows the rules of the Mahomedan Law of
pre-emption. In other cases, where a custom of pre-emption exists, each village
community has a custom of pre-emption which varies from the Mahomedan Law of
pre-emption and is peculiar to the village in its provisions and its incidents.
A custom of pre-emption was doubtless in all cases the result of agreement
amongst the shareholders of the particular village, and may have been adopted
in modern times and in villages which were first constituted in modern
times." It is not necessary for our present purpose to pursue this
discussion any further.
Since the establishment 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
good conscience' Here again there was no uniformity of views expressed by the
different High Courts in India and the High Court of Madras definitely held
that the law of pre-emption, by reason of its placing restrictions upon the
liberty of transfer of property, could not be regarded to be in consonance with
the principles of justice, equity and good conscience(2). Hence the right of
pre-emption is not recognised in the Madras Presidency at all even amongst
Muhammadans except on the footing of a custom. Rights of preemption 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 (1) 42 I.A. 10,
(2) Vide Krishna Menon v. Keshavan, 20 Mad.
76 it undoubtedly becomes the territorial law
of the place and is applicable to persons other than Muhammadans by reason of
their property being situated therein. In other 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 good conscience. Apart from
these a right of pre-emption can be created by contract and as has been
observed by the Judicial Committee in the case referred to above, such
contracts are usually found amongst sharers in a village. It is against this
background that we propose to examine the contentions that have been raised in
the present case.
The first question that has been mooted
before us is, whether the burden and benefit of a right of pre-emption are
incidents annexed to the lands belonging respectively to the vendor and the
Pre-emptor or is the right merely one of re- purchase, which a neighbour or
co-sharer enjoys under Muhammadan Law, and which he can enforce personally
against the vendee in whom the title to the property has already vested by sale.
The learned counsel for the appellant has pressed for acceptance of the first
view while the Solicitor-General appearing for the respondents has contended,
that by no accepted principles of jurisprudence can the preemptor be said to
have an interest in the property of the vendor. It is pointed out that the
right of preemption arises for the first time when there is a com- pleted sale
and the title of the purchaser is perfected and if the right was one attached
to the property, it must have existed prior to the sale and should have been
available not merely in case of sale but in all other kinds of transfer like
gift and lease.
This latter line of reasoning found favour
with the majority of a Full Bench of the Calcutta High Court in the case of
Sheikh Kudratulla v. Mahini Mohan(1), (1) Beng. L.R. (Full Bench Rulings) page
77 where the question arose whether, when a
Muhammadan sold his property to a Hindu purchaser the cosharer of the former
could enforce a right of pre-emption against the Hindu vendee under the
Muhammadan Law. The question was answered in the negative by the majority of
the Full Bench and Mitter J. who delivered the leading judgment, while
discussing the nature of the right of pre-emption observed as follows:
" If that right is founded on an
antecedent defect in the title of the vendor, that is to say on a legal
disability on his part to sell his property to a stranger, without giving an
opportunity to his coparceners and neighbours to purchase it in the first
instance, those coparceners and neighbours are fully entitled to ask the Hindu
purchaser to surrender the property, for although as a Hindu, he is not
necessarily bound by the Mahomedan Law, he was at any rate bound by the rule of
justice, equity and good conscience to inquire into the title of his vendor;
and that very rule also requires that we should not permit him to retain a
property which his vendor had no power to sell. If, on the contrary, it can be
shown, that there was no such defect in the title of the vendor, or in other
words that he was under no such disability, even under the Mahomedan Law
itself, it would follow as a matter of course, that there was no-defect in the
title of the purchaser, at the time of its creation........... Now, so far as I
can judge of the Mahomedan Law of pre-emption from the materials within my
reach, it appears to me to be perfectly clear that a right of pre-emption is
nothing more than a mere right of re- purchase, not from the vendor but from
the vendee, who is treated, for all intents and purposes, as the full legal
owner of the property which is the subject-matter of that right." The
minority judges consisting of Norman and Macpherson JJ. took a different view
and held that the law of pre-emption was to be treated as a real law, that is a
law affecting and attaching to the property itself. The liability to the claim
of pre-emption is a quality impressed upon and inherent in the property which
is subjected to it; or in other words an incident of that property.
78 The identical point came up for
consideration before a Full Bench of the Allahabad High Court(1), where also
the question for decision was whether a Muhammadan pre-emptor could enforce his
right against a Hindu vendee from a Muhammadan vendor. The learned Judges took
a view contrary to that taken by the majority of the Calcutta Full Bench and
answered the question in the affirmative. It was held that the right of
pre-emption was not one of re-purchase from the vendee. It -was a right
inherent in the property and hence could be followed in the hands of the
purchaser whoever he might be. Mr. Justice Mahmood elaborately reviewed all the
original authorities of Muhammadan Law on the point and expressed the opinion
that the right of pre-emption under Muhammadan Law partakes strongly of the
nature of an easement right, the dominant tenement " and the
"servient tenement of the law of easement being analogous to what the
learned Judge described respectively as the " pre-emptive tenement "
and " preemption tenement." in other words the right of pre-emption
is a sort of legal servitude running with the land. The right exists, as the
learned Judge said, in the owner of the pre-emptive tenement for the time being
which entitles him to have an offer of sale made to him, whenever the owner of
the pre-emptional property desires to sell it. But the right could not be a
right of re-purchase either from the vendor or the vendee involving a new
contract of sale. " It is simply a right of substitution entitling the
pre-emptor, by reason of a legal incident to which the sale itself was subject,
to stand in the shoes of the vendee in respect of all the rights and
obligations arising from the sale under which he has derived his title.
It is in effect, as if in a sale deed the
vendee's name was rubbed out and the pre-emptor's name was substituted in its
place. The learned Judge pointed out that the decision of the Calcutta Full
Bench was based upon a mis-translation of the Arabic word " Tajibo "
in Hamilton's Hedaya. Hamilton translated the word as meaning "established"
but it really means " becomes obligatory, necessary or (1) Vide Govinda
Dayal v. Inayatulla, 7 All. 775.
79 enforceable." The right has not got
to be established at all. It is attached and continues to be attached to the
tenement concerned and can under certain circumstances be enforced forthwith
against the adjoining tenements sold.
This decision was followed by the Patna High
Court in Achyutananda v. Biki (1). A Division Bench of the Bombay High Court in
a case decided in 1928 (2) accepted the view taken by the majority of the
Calcutta Full Bench but the reasons given in that decision were held to be
unsupportable by a later Fall Bench (3) of the same High Court which held the
right of preemption to be an incident of property and agreed substantially with
the view taken by Mahmood J. in the Allahabad Full Bench.
In our opinion it would not be 'correct to
say that the right of pre-emption under Muhammadan Law is a personal right on
the part of the pre-emptor to get a re-transfer of the property from the vendee
who has already become owner of the same. We prefer to accept the meaning of
the word " Tajibo " used in the Hedaya in the sense in which Mr. Justice
Mahmod construes it to mean and it was really a mis- translation of that word
by Hamilton that accounted to a great extent for the view taken by the Calcutta
It is true that the right becomes enforceable
only when there is a sale but the right exists antecedently to the sale, the
foundation of the right being the avoidance of the inconveniences and
disturbances which would arise from the introduction of a stranger into the
land. We agree with Mr.
Justice Mahmood that the sale is a condition
precedent not to the existence of the right but to its enforceability. We do
not however desire to ex-press any opinion on the view taken by the learned
Judge that the right of pre-emption partakes strongly of the character of an
easement in law.
Analogies are not always helpful and even if
there is resemblance between the two rights, the differences between them are
no less material. The correct legal position seems (1) 1 Pat. 578.
(2) Vide Hamed Miya v. Benjamin, 53 Bom. 525.
(3) Vide Dasharathilal v. Bai Dhondu Bai,
I.L.R. 1941 Bom.
80 to be that the law of pre-emption imposes
a limitation or disability upon the ownership of a property to the extent that
it restricts the owner's unfettered right of sale and compels him to sell the
property to his cosharer or neighbour as the case may be. The person who is a
co-sharer in the land or owns lands in the vicinity consequently gets an
advantage or benefit corresponding to the burden with which the owner of the
property is saddled; even though it does not amount to an actual interest in
the property sold.
The crux of the whole thing is that the
benefit as well as the burden of the right of pre-emption run with the land and
can be enforced by or against the owner of the land for the time being although
the right of the pre-emptor does not amount to an interest in the land itself.
It may be stated here that if the right of preemption had been only a personal
right enforceable against the vendee and there was no infirmity in the title of
the owner restricting his right of sale in a certain manner, a bona fide
purchaser without notice would certainly obtain an absolute title to the
property, unhampered by any right of the pre-emptor and in such circumstances
there could be no justification for enforcing the right of pre-emption against
the purchaser on grounds of justice, equity and good conscience on which
grounds alone the right could be enforced at the present day. In our opinion
the law of pre-emption creates a right which attaches to the property and on
that footing only it can be enforced against the purchaser.
The question now arises as to what is the
legal position when the right is claimed not under Muhammadan Law but on the
footing of a custom. It cannot be and is not disputed that if the right of
pre-emption is set, up by non-Muslims on the basis of a custom, the existence
of the custom is a matter to be established by proper evidence. But as has been
laid down by the Judicial Committee (1) following the decision of the Calcutta
High Court in Fakir Rawat v. Emman (2), that when the existence of a custom
under which the Hindus (1) Vide Jadutal v. Janki Koer, 39. I. A. 101, (2) 1863
B.L.R. Sup. VOl. 35.
81 claim to have the same rights of
pre-emption as Muhammadans, in any district, is generally known and judicially
recognised, it is not necessary to prove it by further evidence. A long course
of decisions has esta- blished the existence of such custom in Bihar, Sylhet
and certain parts of Gujerat.
So far as the present case is concerned, a
large number of judgments have been put in evidence by the plaintiff in proof
of the existence of a custom of preemption in -the entire city of Banaras.
There are at least three reported cases (1) in which the High Court of
Allahabad has affirmed the existence of such rights in Banaras. The defendants
in the present case do not dispute the existence of the custom and the whole
dispute is as regards the incidents of the same, the defendants' case being
that the custom is available as between persons who are natives of or domiciled
in the place and cannot be extended to an outsider even though he owns property
in the city which is the subject- matter of the claim.
The Privy Council in Jadhulal v. Janki Koer
expressly laid down that when a custom of pre-emption is established by
evidence to prevail amongst non-Muslims in a particular locality "it must
be presumed to be founded on and co- extensive with the Muhammadan Law on that
subject unless the contrary is shown; that the Court may as between Hindus ad-
minister a modification of the law as to the circumstances under which the
right may be claimed when it is shown that the custom in that respect does not
go to the whole length of the Muhammadan Law of preemption, but that the
assertion of right by suit must always be preceded by an observance of the
preliminary forms prescribed in the Muhammadan Law which forms appear to have
been invariably observed and insisted on through the whole of the cases from
the earliest times of which we have record." In the case before us no
attempt was made by the defendants to show that the custom of pre-emption set
up (i) Vide Chakauri Devi v. Sundari Devi, 28 All- 590; Ram Chandra v. Goswami
Ram Puri, 45 All. 501 ; Gouri Sankar v, Sitaram, 54 All. 76.
(2) 39 I.A. 101.
11 82 and proved by the plaintiff was of a
character different from that which is contemplated by Muhammadan Law. The only
difference that is noticed in one of the decided authorities (1) is that the
custom of pre-emption prevalent in the city of Banaras is confined to house
properties only and does not extend to vacant lands; but this view again has
been modified in a subsequent decision(2) which held that building sites and
small parcels of land even though vacant are not excluded from the ambit of the
custom. The various judgments which have been made exhibits in this case do not
give any indication whatsoever that under the custom, as it prevails in the
city of Banaras, pre-emption could be claimed only against persons who are the
inhabitants of the place or are domiciled therein and that it could not be
enforced in respect of a property situated in the city, the owner of which is
not a native of that place. In fact no such question was raised or discussed in
any of these cases.
The ambit or extent of a custom is a matter
of proof and the defendants were certainly competent to adduce evidence to show
that the custom of pre-emption prevailing in the city of Banaras was available
not against all persons who held lands within it, but only against a particular
class of persons. But this they did not attempt to do at any stage of the
litigation. Their contention, which has been accepted by both the Courts below
is, that, as a matter of law, a local custom of pre-emption does not affect or
bind persons who are not the natives of or domiciled in that area. In support
of this proposition the Courts below have relied primarily upon the statement
of law made by Roland Wilson and other text book writers on Muhammadan Law
which purport to be based upon certain decided authorities.
At page 391 of his book on Anglo-Mahammadan
Law(3) Roland Wilson states the law in the following manner:
"Where the custom is judicially noticed
as prevailing, amongst non-Muhammadans in a certain local area, (1) Vide Ram
Chandra v. Goswami, 45 All. 501.
(2) Vide Goari Sankar v. Sitallam, 54 All.
(3) Vide 6th edition, paragraph 352.
83 it does not govern non-Muhammadans who,
though holding land therein for the time being, are neither natives of, nor
domiciled in, the district." Two cases have been referred to in support of
this proposition, one of which is Byjnath Pershad v. Kapilmon Singh(1) and the
other Parsashth Nath Tewari v. Dhanai(2).
Mulla repeats the law almost, in the same
terms in his Muhammadan Law. In Tyabji the rule is thus laid down(3):
"The law of pre-emption is personal. It
is not territorial, nor an incident of property. A person who is not a native
of or domiciled within a locality where pre-emption is enforced by law or
custom but who owns lands within the same locality will not necessarily be
subject to the law of pre- emption." This statement clearly indicates the
foundation of the whole doctrine. The law of pre-emption is stated to be a
purely personal law even when it rests on custom. It is no incident of property
and the right which it creates is enforceable only against persons who belong
to a particular religious community or fulfil the description of being natives
of a particular district. In the case of Byjnath Pershad v. Kapilmon Singh(1),
which can be said to be the leading pronouncement on the subject, the vendor of
a house situated in the town of Arah, in the province of Bihar, was one Rajani
Kanta Banerjee who was a native of lower Bengal but resided at Arah where he
carried on the profession of a lawyer. Rajani Kanta sold the property to the
defendant, and the plaintiff brought a suit claiming pre-emption on the ground
of vicinage. It was admitted that the custom of pre- emption did prevail
amongst non-Muslims in Bihar, but still the suit was dismissed on the ground
that the vendor, who was not a native of the district, was not bound by it. The
right of pre-emption, it was held, arises from a rule of law by which the owner
of the land is bound and it no longer exists if he ceases to be an owner, who
is bound by the law either as a Muhammadan or by custom.
(1) 2 4 W. R., 95.
(2) 32 Cal. 988 (3) Tyabji's Muhammadan Law,
page 670, paragraph 523(e).
84 In our opinion the decision proceeds upon
a wrong assumption. The right 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 scattered 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 good 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 property 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 of
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 the 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 would be
subject to the custom, irrespective of his being a member of a particular 85 community
or group. The whole doctrine, as enunciated above, is 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.
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.
it appears that the decision in Byjnath.
Kapilmon(1), which was quite in accordance with the view then taken by the High
Court of Calcutta about the nature of the right of pre- emption, was the basis
of the statement of law in the form set out above in an earlier edition of Roland
The decision in Parslashth Nath v. Dhanai(2),
which is the other authority referred to, is based entirely upon the statement
of law in that earlier edition, and does not carry the matter any further. In
our opinion these decisions cannot be held to be correct and the contention of
the learned counsel for the appellant should be given effect to.
We accordingly hold that a local custom of
preemption exists in the city of Banaras and the right attaches at least to all
house properties situated within it and no incident of such custom is proved
which would make the right available only between persons who are either
natives of Banaras or -are domiciled therein. The result is that the appeal is
allowed and the judgments of both the Courts below are set aside. The case
shall go back to the High Court for consideration of the two questions left
undecided by it, namely, whether the plaintiff has made the demands in due
compliance with the forms prescribed by the Muhammadan Law and secondly whether
the plaintiff, being a landlord, (1) 24 W.R. 95.
(2) 32 Cal 988.
86 could eject his own tenants in exercise of
the right of pre- emption. The appellant will have the costs of this appeal
from respondent No. 1. Further costs will abide the result.