BAHADUR ALI Vs. RAM LAL AND ISMAIL KHAN

JUDGEMENT

(1.) The facts out of which this second appeal has arisen are as follows: One Ismail Khan on the 9 of December 1900, sold a share in the khalsa land of Bazidpur to Ram Lal. Bahadur Ali Khan brought a suit for pre-emption under the Muhammadan law, presumably under the Hanafi school. The vendee raised various defences. The Court of first instance, finding that the vendee Ram Lal was entitled to pre-empt under the wajib-ul-arz and that Bahadur Ali was entitled to pre-empt under the Muhammadan law, gave the latter a decree for half the property in suit on payment of half the price for which it had been sold. Both parties appealed. The learned District Judge coming to the conclusion that the custom of pre-emption recorded in the wajib-ul-arz superseded the rules of the Muhammadan law, and finding that Bahadur Ali was a near relation of the vendor, gave Bahadur Ali a decree for all the property in suit and dismissed the appeal of Ram Lal. Ram Lal has preferred this second appeal. The grounds of appeal are: (1) The interpretation put upon the wajib-ul-arz is wrong. (2) The words in the wajib-ul-arz relate to propinquity in space and not propinquity of relationship. (3) The claim being based on the Muhammadan law, a decree under the wajib-ul-arz could not be passed.

(2.) The following facts have been found by the lower appellate Court: (1) Bahadur Ali is a co-sharer in the khalsa; (2) Ram Lal is also a co-sharer in the khalsa. The point on which the decision of this appeal turns is the interpretation of the wajib- ul-arz. The material portion of it may be rendered as follows: The zamindar of the khalsa is one person; hence there is no custom of pre-emption in the khalsa; but among the owners (lit. owner) of the Jehalsa and milks the following custom of pre-emption obtains.

(3.) On the basis of the above extract from the wajib-ul-arz it is urged for the appellant that the wajib-ul-arz gives no right of preemption to the co-sharers in the khalsa inter se, but that there is a right of pre-emption between the owners of the khalsa and the owners of the milks in the sense that if a share in the khalsa is sold the owner of the milk is entitled to pre-empt. Whatever may be the correct meaning of the last portion of this peculiarly worded clause in the wajib-ul-arz, I can safely say that according to the plain meaning of the first part of the clause, the khalsa land is not subject to a claim for pre-emption under the wajib-ul-arz. Such being the case, the wajib-ul-arz has no application to the sale of the khalsa land, and a suit to pre-empt it can only be instituted under the Muhammadan law.