AHMAD SAYED KHAN Vs. DIGAMBAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption. The appellant is the vendee. The main facts are simple and admitted. The property is situate in a village of the name of Palakher. In the year 1863 and up to the year 1905, the village consisted of a single mahal. Then there was a partition and the village was divided into five separate and independent mahals. On the 12th of July 1909, Bhawani Das executed the sale-deed, which has given rise to the present suit in favour of Kunwar Ahmad Sayed Khan, the appellant. The property, which the plaintiff seeks to pre-empt, and which was the subject-mattar of the sale-deed, is situate in Mahal Bhawani Das. This mahal is divided into four portions. Three of these portions, which constituted the greater part of the mahal, were the property of the vendor Bhawani Das. The defendant vendee was at the time of sale the mortgagee in possession of the first of these divisions, namely, a share covering an area of 902 bighas, 16 biswas, 3 biswansis. The mortgage included specific land consisting of 7 bighas and 10 biswas but out of this 7 bighas and 10 bighas, 5 bighas odd had been redeemed by the mortgagor Bhawani Das. The sale comprised divisions 1, 2 and 3 of the mahal. The remaining division was separately held by another person who is no party to the suit. It will thus appear that at the date of the sale, the defendant vendee was a mortgagee in possession of the whole of the first division of Mahal Bhawani Das, save the 5 bighas Odd specific land which had been redeemed. The plaintiff had no share of any kind in Mahal Bhawani Das, either as proprietor or mortgagee. His property was situate in a totally independent mahal. This fact, in the view I take of the case, is a matter of importance, which requires to be carefully borne in mind;

(2.) The wajib-ul-arz of 1863 was given in evidence. The sixth Clause commences with the heading "As to transfer of property." The property is mortgaged as follows: (Then follows the details of some 14 mortgages and it proceeds) "in future, every co-sharer mortgagor or mortgagee shall as such be at liberty to make transfers. But he shall make transfers first in favour of his own and ek-jaddi (collateral) brothers, and after them in favour of co-sharer s in the khata and patti as well as in favour of the proprietors of the village. If none of them take the share, he shall be competent to make transfers in favour of strangers, If there is a dispute regarding difference in consideration, it shall be decided by arbitration. Amongst us, the Muhammadans (except Malhu), the devolution of property, after death, takes place according to the Muhammadan Law. The custom regarding the distribution of property in the family of Malhu is as follows: if there are sons living, the daughters have no right at all and if there is no male issue, the daughter gets shares and if there is no daughter, the wife shall be the owner. If there be issue by two wives, the estate shall be divided among the issue. And if there is issue by one wife but none by the other, the childless wife shall continue to get her maintenance allowance for life from the issue of the other wife. A wife not lawfully married and her issue have no right at all. Among the Hindus, the female issue have no right whatsoever. On the death of a mortgagee in possession of property, the male issue become owners and in case he is childless, his wife and on the latter s death, the heirs of her husband become owners. "

(3.) The wajib-ul-arz of 1870 was also given in evidence. It is practically speaking a copy of the wajib-ul-arz of 1863. It commences with the same heading, proceeds to give the particulars of a number of mortgagees, and then contains a clause which is almost verbatim the same as the extract from the previous wajib- ul-arz, which I have already quoted. Paragraph 14 is as follows: "Custom as to pre-emption--Pre-emption is allowed."