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PETITIONER: MUNNI LAL

       Vs.

RESPONDENT: BISHWANATH PRASAD & ORS.

DATE OF JUDGMENT: 15/09/1967

BENCH: WANCHOO, K.N. (CJ) BENCH: WANCHOO, K.N. (CJ) BACHAWAT, R.S. RAMASWAMI, V. MITTER, G.K. HEGDE, K.S.

CITATION:  1968 AIR  450            1968 SCR  (1) 554

ACT: Pre-emption-Whether  lease-hold (Parjoti) land can  be  pre- empted under a custom in Benaras co-extensive with Mahomedan Law.

HEADNOTE: The  respondent  brought a suit for pre-emption  of  certain leasehold  (Parjoti) land in Benaras which was sold under  a sale  deed in February, 1942.  He claimed that there  was  a custom pre-emption in the whole of the city of Benaras, that he  was  the  owner  of a house and  land  adjacent  to  the property sold, that he was entitled to preempt as a shaft-i- jar (pre-emptor by right of vicinage) and also as a shafi-i- khalit  (pre-emptor  by right of appendages), and  that  the necessary talabs had been performed. The Trial Court held that there was a custom of  pre-emption in the locality which was co-extensive with Mahomedan Law of preemption,   that  the  respondent  was  the  owner  of   a contiguous  house   and therefore entitled to sue,  and  had performed the necessary talabs but that the vendors and  the vendee were not governed by the custom as they did not  live in  Benaras.  The first appellate court in appeal  took  the view  that the fact that the vendors and the vendee did  not reside, in Benaras made no difference to the application  of the  custom to them; it also examined the  question  whether lease-’  hold  property  could be preempted  and  held  that though  the vendors were lessees and paid some  ground-rent, they were for all intents and purposes owners and  therefore the land was pre-emptible.  It therefore allowed the  appeal and granted a decree for pre-emption. In second appeal the High Court confirmed the view that  the custom  would  bind the vendors and the vendee  even  though they  did  not reside in Benaras and further held  that  the custom of preemption even in the case of transfer of parjoti land had been proved. It therefore dismissed the appeal. In the appeal to this Court it was contended inter alia  (i) that the High Court had mis-read the judgment of the  Courts below  when it held that they had found the custom  of  pre- emption  existed  even with respect to transfer  of  parjoti

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land  in  the city of Benaras and (ii)  that  Mabomedan  Law recognises pre-emption only with respect to full proprietary rights  and does not recognise pre-emption with  respect  to lease-hold rights: as the custom in Benaras which was  found proved  was co-extensive with Mahomedan Law, there could  be no  pre-emption  of  the land which had  been  sold  by  the impugned sale deed because the land was parjoti land. HELD:  As the property sold was lease-hold land, it was  not open  to the respondent to pre-empt it under a custom  which was  coextensive  with Mahomedan Law whatever might  be  the ground on which pre-emption was claimed. [560-B-C] (i) The High Court was not right in saying that it had  been found  by  the courts below that the custom  of  pre-emption prevailing  in the city of Benaras applied even to  transfer of parjoti land.  All 555 that the two courts had found was that the custom prevailing in the city of Benaras was co-extensive with Mahomedan  Law. [558C-D] (ii) It is well established that under the Mahomedan Law  of pre-emption  there  must  be  full  ownership  in  the  land preempted  and therefore the right of pre-emption  does  not arise   on   the  sale  of  leasehold  interest   in   land. Furthermore, 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, [559G] Baboo Ram Golam Singh v. Nursing Sahoy & others, (1875)  XXV Weekly Reporter (Sutherland) 43; Phul Mohammad Khan v. Quazi Kutubuddin,   I.L.R.   [1937]  16  Pat.   519;   Dashrathlal Chhaganlal  v.  Bai  Dhondubai, I.L.R.  [1941]  Bombay  460; Rameshwar  Lal Marwari v. Pandit Ramdeo, A.I.R.  1957.Patna, 695,  and  Oudh Behari Singh v. Gajadhar  Jaipuriya,  A.I.R. 1955 All. 698; referred to. Bhagwati   Prasad  v.  Balgobind,  A.I.R.  1933  Oudh   161; distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2460 of 1966. Appeal  by special leave from the judgment and  order  dated November  9,  1960  of the Allahabad High  Court  in  Second Appeal No. 2074 of 1944. J. P.  Goyal and Sobhag Mal Jain, for the appellants. Yogeshwar Prasad and M. V. Goswami, for the respondent. The Judgment of the Court was delivered by Wanchoo,  C. J. The main question raised in this  appeal  by special  leave  is whether Parjoti land  (i.e.  a  permanent lease-hold   interest)  in  the  city  of  Benaras  can   be preempted.  The respondent brought a suit for pre-emption of the land in dispute, which was sold under a sale deed  dated February  6, 1942.  The case of the respondent was  that  he was  owner of a house and land to the south of the  property sold.  -He based his claim to pre-emption as  a  shafi-i-jar (i.e.  pre-emptor  by  right  of vicinage)  and  also  as  a shafi-i-khalit  (i.e.  pre-emptor by right  of  appendages). His  case  was that there was such a custom  of  pre-emption prevailing in the whole of the city of Benaras and therefore he  was entitled to pre-empt the property sold which  was  a khandar (i.e. a house in ruins).  The plaint made the ususal allegation that the necessary talabs had been performed  and the respondent was entitled to pre-empt the sale. The suit was resisted by the vendee, whose legal representa- tive is the appellant before this Court.  The vendee  denied that  there  was any custom of pre-emption in  the  city  of

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Benaras,  and  particularly,  in the mohalla  in  which  the property  in  dispute was situate.  It was  further  alleged that  even  if the existence of custom  of  pre-emption  was proved, it could not be applied to parjoti land (i.e. lease- hold  land).   It was also denied that  the  respondent  was either  Shafi-i-jar  or  shafi-i-khalit.   It  was   further pleaded  that  as  the  vendors  and  the  vendee  lived  in Calcutta, they were not 556 governed by the custom of pre-emption, if any, prevalent  in the  city  of Benaras.  The performance of talabs  was  also disputed.   The trial court framed four issues, namely,  (i) whether the respondent had a right to sue, (ii) whether  the custom  of pre-emption prevailed in Mohalla Baradeo, in  the city  of Benaras, (iii) whether the vendors and the  vendee, as  residents  of Calcutta, were governed by the  custom  of pre-emption, and (iv) whether the talabs had been performed. The trial court held that the necessary talabs had been per- formed.  It also held that the respondent was the ’owner  of the contiguous house and had therefore the right to sue.  On the question of custom, the trial court held that there  was a  custom  of  preemption in the  locality,  which  was  co- extensive  with Mahomedan Law of pre-emption.  Finally,  the trial  court held that the vendors and the vendee  were  not governed by the custom, as they did not live in Benaras.  In this view of the matter, the suit was dismissed with costs. The  respondent then went in appeal, and his contention,  in one of the grounds of appeal, was that as the custom of pre- emption was held by the trial court to have been proved (and it  was co-extensive with Mahomedan Law), the  custom  would bind  Hindus also.  It was further contended that  the  fact that the vendors and the vendee did not live in Benaras made no  difference  and  they  would  be  bound  by  the  custom prevailing  in  the  locality  in  which  the  property  was situate.   Two  main questions thus arose before  the  first appellate  court,  namely-(i) whether the custom  as  proved bound  Hindus  also,  and (ii) whether  the  fact  that  the vendors and the vendee did not live in Benaras exempted them from  being  governed  by the custom.  On  the  question  of custom,  the first appellate court observed that the  custom in question had been proved to exist in the locality and was co-extensive with Mahomedan Law of pre-emption and that this finding  had not been challenged before it.  On  the  second question, the first appellate court held that the fact  that the vendors and the vendee did not reside in Benaras made no difference  to  the application of the custom to  them  with respect to the property transferred. The  question  whether Parjoti lands could be  subjected  to pre-emption  was  not  decided by the trial  court,  for  it dismissed  the suit on the ground that the vendors  and  the vendee not being residents in Benaras, were not bound by the custom.   The  first appellate court having found  that  the vendors and the vendee were so bound went into the  question whether  lease-hold  property could be preempted.   It  held that the property was heritable and transferable and  though the vendors were lessees and paid some groundrent they  were for  all intents and purposes owners and therefore the  land was  pre-emptible.   It  therefore allowed  the  appeal  and granted a decree for ’pre-emption. 557 Then  followed  a  second appeal to the High  Court  by  the vendee and two main questions were raised there,  namely-(i) that the custom of pre-emption could not prevail against the vendors and the vendee as they were not residents of Benaras and  (ii) that in any case it did not extend  to  lease-hold

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land  or parjoti land.  The High Court held that the  custom would  bind  the vendors and the vendee in  this  case  even though they were not residents of Benaras.  On the  question whether the custom prevalent applied to parjoti land or not. the  High Court seems to have read the judgments of the  two lower courts as holding that the custom of pre-emption  even in  the  case of transfer of parjoti land had  been  proved. The High Court therefore dismissed the appeal.  The vendee’s heir  then obtained special leave from this Court; and  that is how the matter has come before us. A  number  of  questions has been raised on  behalf  of  the appellant,  but  it is unnecessary to go into all  of  them. The main point that has been urged on his behalf is that the High Court had misread the judgments of the two courts below when  it  held that they had found that the custom  of  pre- emption  existed  even with respect to transfer  of  parjoti land in the city of Benaras.  It is argued that all that the two lower courts have held is that the custom of pre-emption co-extensive  with  Mahomedan  Law existed in  the  city  of Benaras, and the first appellate court had further held that such a custom bound even Hindus, whether they were residents in  Benaras or not.  We are of opinion that this  contention is  well-founded.  We have already referred to the  findings of the two lower courts.  The finding of the trial court  is clear and is expressed in these words:               "I hold that there is a custom of  pre-emption               co-extensive with Mahomedan Law." The  first  appellate court endorsed this finding  in  these words-               "The  trial  court found that  the  custom  in               question  existed in the locality and was  co-               extensive  with Mahomedan Law  of  pre-emption               and the finding is not challenged in appeal." Further  in the grounds of appeal by the respondent, one  of the grounds was in these terms:-               "Because  when the lower court has  held  that               the  custom  of pre-emption  as  obtaining  in               Benaras  is  co-extensive with  Mahomedan  Law               which embraces the zimmees the lower court has               erred in holding that the plaintiff could  not               enforce  his right of pre-emption against  the               defendants." It  is thus clear that all that was found by the  two  Iower courts was that there was a custom of pre-emption prevailing in  the city of Benaras which was co-extensive with  Mohomed Law and 558 which bound Hindus also whether they were residents there or not, so long as the property to be preempted was in the city of Benaras. It  is  true that the first appellate court  held  that  the custom  applied  to lease-hold 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 pre-vailing 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  was  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 preemption prevailing in

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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. 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               preempted,  and  therefore the right  of  pre-               emption does not arise on the sale of a lease-               hold interest in land." This statement of law is supported by a number of  decisions to  which reference may now be made.  The earliest of  these decisions  is  Baboo  Ram Golam Singh  v.  Nursing  Sahoy  & others(1).   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 sale 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. The  next  case  to  which reference may  be  made  is  Phul Mohammad  Khan  v. Quazi Kutubuddin(2).  In  that  case  the Patna Court held that Mahomedan Law of pre-emption did not (1)  (1875) XXV Weekly Reporter (Sutherland) 43. (2)  I.L.R. [1937] 16 Pat. 519. 559 apply  to preempting Mukarrari and raivati rights, the  sale of such .interests being not of full proprietary interest. The next case to which reference may be made is  Dashrathlal Chhaganlal  v.  Bai Dhondubai(1).  There also the  right  of preemption  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  had 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 freehold and the land,  sought  to  be preempted  must also be freehold.  It did not arise  on  the sale of leasehold interests in land. The  next case to which reference may be made  is  Rameshwar Lal  Marwari v. Pandit Ramdeo Jha(2).  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. 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.   Learned  counsel   for   the respondent relied on Bhagwati Prasad v. Balgobind(3) for the proposition  that  there could be pre-emption  of  leasehold

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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  pre-emption  there  must  be   full ownership  in the land preempted 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. 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 (1)  I.L.R. [1941] Bom. 460.  (3)  A.I.R. 1933 Oudh 161. (2)  A.I.R. 1957 Pat. 695. 560 Jaipuriya(1).  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 ie. leasehold It was held by the Allahabad   High  Court  that  the  sale  of  parjoti   land corresponding  to lessee’s 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 lessee’s rights were held pre-emptible 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.  We  therefore  allow  the appeal,  set aside the decree of the High Court and  of  the first  appellate court and dismiss the suit.  The  appellant will   get  his  costs  throughout  from   the   respondent, Bishwanath Prasad. R.K.P,S.                                         Appeal allowed. (1) A.I.R. 1955 All. 698. 561