JUDGMENT
1. The sole question for decision in this appeal is, whether the existence of the custom of pre-emption which was pleaded by the plaintiffs in the Court below was established on the evidence submitted to the Subordinate Judge.
2. The property sought to be pre-empted is situated in a village in the Saharanpur district known as Lakhnoti Kalan.
3. The evidence in support of the custom consisted of a wajib-ul-ars prepared at the Settlement of 1867 A.D. Another wajib-ul-arz was prepared in 1296F, corresponding with 1889. In addition to these two wajib-ul-arzes the plaintiffs produced a decree showing that a claim for pre-emption had been decreed in the Court of the Munsif of Saharanpur in the year 1907. The judgment of the Munsif was based upon the provision of the wajib-ul-arz of 1867 which is in evidence in this case.
4. There was no rebutting evidence put forward on the part of the defendants.
5. The full text of the wajib-ul-arz of 1867 is before us and it has been argued at great length that, having regard to the language of the document and to certain of its provisions, it ought to be held in this particular case that the wajib-ul-arz is not a record of custom.
6. In support of his argument these, learned Advocate for the appellants has referred us to some of the earlier decisions of this Court in pre-emption cases. He has cited before us the cases of Dhinn Kuar v. Diwan Singh 10 Ind. Cas. 558 : 8 A.L.J. 786, Budh Singh v. Qopal Bai 5 A.L.J. 539 : A.W.N. (1908) 246 : 30 A. 544., and Tota v. Sheo Narain 3 INd. Cas. 534 : 6 A.L.J. 715.
6. While it might be conceded in favour of the appellants that on the earlier decisions of this Court it would be possible to construe the wajib-ul-arz before us in the present case as a record of contract rather than of custom we are decidedly of opinion that it is not possible for us to follow the reasoning of these earlier oases in view of the pronouncement of their Lordships of the Privy Council in the case of Digambar Singh v. Ahmed Sayed Khan 28 INd. Cas. 34 : 37 A. 129 : 13 A.L.J. 236 : 19 C.W.N. 393 : 17 M.L.T. 193 : 2.L.W. 303 : 21 C.L.J. 237 : 28 M.L.J. 556 : 17 Bom. L.R. 393 : (1915) M.W.N. 581 : 42 I.A. 10 (P.C.) Since that the judgment has been published it has naturally been followed in this Court and it must be taken that any principles which are laid down in it must be accepted in preference to any statement of law contained in previous decisions of the Court. It was clearly laid down in this case that a wajib-ul-arz by itself is good prima fade evidence of custom and that it is not necessary to corroborate a wajib-ul-arz by proof of instances in which pre-emption has been allowed. At the same time, it was laid down that the evidence afforded by the wajib-ul-arz may be rebutted by other evidence.
7. Since that case was decided the Pre-emption Bench of this Court has taken up the position that the wajib-ul-arz is strong prima facie evidence of custom and that in order to overturn the presumption in its favour there must be convincing evidence to satisfy the Court that in fact the wajib-ul-arz could not reasonably be treated as a record of custom.
8. The evidence which would rebut the presumption may of course be found in the language of the document itself or there may be external evidence. It has been laid down by the Pre-emption Bench in the case reported in Fazal Husain v. Muhammad Sheriff 24 Ind. Cas. 464 : 36 A. 471 : 12 A.L.J. 800.that in certain cases the language of the wajib-ul-arz will of itself afford sufficient evidence to over-turn the presumption that it contains a record of custom. In that case certain observations were made with reference to the previous decision of this Court in Dhian Kuar v. Diwan Singh and others 10 Ind. Cas. 558 : 8 A.L.J. 786 It was pointed out that in that case the wajib-ul-arz was peculiar and that in the clause relating to pre-emption there were to be found a number of other matters which could not possibly have been matters of custom. It was held accordingly that in such a case it might reasonably be held that the record in the wajib-ul-arz was not really a record of custom but a record of contract.
9. We have in recent cases endeavoured as far as possible to follow this principle laid down in the case just cited and we may also refer in this connection to the case reported in Surajbali Singh v. Muhammad Nasir 48 Ind. Cas. 220. 16 A.L.J. 879.
10. We have in the present case, as has been stated, the wajib-ul-arz prepared in the year 1867 and a subsequent wajib-ul-arz prepared in or about the year 1889. This latter wajib-ul-arz merely incorporates the provisions of the earlier document and so it is only necessary to consider the language of the wajib-ul-arz of 1867.
11. The document begins with a recital that it is the wajib-ul-arz or dasturdehi of mauza Lakhnoti Kalan. Then there follows the declaration of the share-holders who attested the wajib-ul-arz and following on this we have a number of provisions contained in 20 paragraphs setting out all the usages and arrangements prevailing in the village.
12. The particular paragraph with which we are concerned, that is to say, the paragraph which relates to pre-emption is paragraph No. 6 and that undoubtedly lays down in the clearest possible terms that there is a right of pre-emption in the village. In addition to the provisions relating to pre-emption the paragraph refers to a number of other matters concerning the devolution of property. Certain rules are laid down such, for example, as the exclusion of a daughter's son or a sister's son. Another rule which is laid down in the same paragraph relates to the custom which is known as istribant or ohundabant. Obviously, therefore, the paragraph does refer to matters other than pre-emption. At, the same time, we think it is proper to observe that these other matters so referred to are matters which are capable of being the subject of a custom.
13. In this connection, however, the learned Advocate for the appellants lays particular stress upon two rules which are laid down in the paragraph in question. One of these is that in cases of dispute about the price of the, property offered for sale the question is to be settled by the appointment of arbitrators or by a reference to the Court. It is argued that this provision relates to a matter which cannot properly be said to be the subject of a custom. We do not, however, understand this provision in the sense contended for. It appears to us that the custom of pre-emption being recognised, all that the rule in question lays down is that a certain procedure is to be observed in cases where there is a dispute between the parties, regarding the price of the property sold. We have to notice in this connection that in the wajib-ul-arzes which were before their Lordships of the Privy Council in Digambar Singh's case 28 INd. Cas. 34 : 37 A. 129 : 13 A.L.J. 236 : 19 C.W.N. 393 : 17 M.L.T. 193 : 2.L.W. 303 : 21 C.L.J. 237 : 28 M.L.J. 556 : 17 Bom. L.R. 393 : (1915) M.W.N. 581 : 42 I.A. 10 (P.C.) there were similar provisions recorded and it is quite clear that the presence of those provisions in the wajib-ul-arzes in question did not prevent their Lordships of the Privy Council from holding that the wajib-ul-arzes in those oases were to be treated as records of custom.
14. The only other argument we have to notice in this connection is one which is based upon the language of the concluding sentence of the paragraph in question which lays down that if there be no male issue or no relatives descended from a common ancestor the shareholders of the patti will become the owners of the property in proportion to their shares. Dr-Sen has argued very earnestly that this provision contained in paragraph 6 cannot properly be treated as relating to any custom. He says that it is an endeavour on the part of the co-sharers of this village to prevent the application of the principle of escheat to the Crown in oases where a proprietor dies without leaving any heir. We do not say that this is an impossible construction of the words in question but we are very doubtful whether that is the significance of them. It may be that they merely provide a rule or custom whereby other heirs who would take in preference to the Crown are excluded. It is well-known that after the list of all relatives has been exhausted succession to the property of a deceased Hindu may go to his spiritual preceptor or disciple or even to a Brahman before the Crown can come and claim escheat. We have given this matter our best consideration and we think we ought to hold in the present case that there is no provision in paragraph 6 upon which, acting in accordance with principles laid down, we ought to come to the conclusion that the paragraph does not contain a record of custom. On the contrary, we are of opinion that it does contain such a record.
15. Something was said in the course of argument regarding the provisions in other paragraphs of the wajib-ul-arz and it is pointed out that many of these provisions relates obviously to matters of contract. That, however, is not a matter of any importance because every wajib-ul-arz must of necessity contain matters which constitute arrangements between the co-sharers. The fact that such matters are to be found in a wajib-ul-arz does not prevent the wajib-ul-arz being treated also as a record of custom wherever a clear pronouncement regarding a custom is set out in the document itself.
16. We have further to notice that the case of the plaintiff is supported by an actual instance in which pre-emption was decreed in the year 1907. To that fact due weight must be given and we hold accordingly that the wajib-ul-arz supported by the judgment in question which was passed in the year 1907 affords sufficient evidence upon which it was competent to the Court below to find that the custom alleged in the plaint does exist. We have not in any way been convinced that the judgment of the first Court is erroneous.
17. We notice that in the Court below another plea by way of defence was that the plaintiffs could not maintain this suit as they had consented to the sale and had themselves refused to take the property offered to them. The learned Judge of the Court below was of opinion that the evidence which was offered in support of this plea was not reliable and although the point is taken in the memorandum of appeal to this Court it was not seriously argued here. We have no reason to differ from the learned Judge of the Court below in his estimate of the-evidence in question.
18. The result, therefore, is the appeal fails and is dismissed with costs including in this Court fees on the higher scale.