Shri Audh Behari Singh vs Gajadhar Jaipuria And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 15 of 1951

Decision Date: 23 April 1954

Coram: B.K. Mukherjea, Mehar Chand Mahajan, Vivian Bose, Natwarlal H. Bhagwati

In the matter of Shri Audh Behari Singh versus Gajadhar Jaipuria and others, decided on 23 April 1954, the Supreme Court of India reported the case with the author identified as B K Mukherjea. The bench that heard the appeal comprised Justice B K Mukherjea, Justice Mehar Chand Mahajan, Justice Vivian Bose and Justice Natwarlal H Bhagwati. The petitioner was Shri Audh Behari Singh and the respondents were Gajadhar Jaipuria and others. The judgment was delivered on 23 April 1954. The same bench is noted in the judgment record as Mukherjea B K, Aiyyar, T L Venkatarama Mahajan, Mehar Chand (Chief Justice), Bose, Vivian, and Natwarlal H Bhagwati. The citation of the decision is 1954 AIR 417 and 1955 SCR 70, with citator references RF 1962 SC1476 (paragraphs 3, 22, 25, 31) and R 1966 SC1977 (paragraphs 3, 6). The subject matter involved a custom of pre-emption in the city of Banaras, characterized as a local custom relating to property rights that attaches to land.

The headnote of the decision states that a local custom of pre-emption exists throughout Banaras and that the right arising from that custom extends to all house properties situated within the city. No evidence was produced to limit the right to persons who are natives of Banaras or who are domiciled there. The court explained that when a right of pre-emption is founded on local custom, it becomes the lex loci, the law of the place, and it governs every parcel of land in that locality regardless of the religion, nationality or domicile of the landowner, unless the custom itself expressly includes such limitations. Accordingly, the right of pre-emption is regarded as an incident of property that attaches to the land itself. The court expressly disapproved the authorities cited as Byjnath v. Kapilmon (24 W.R. 95) and Parsashth Nath v. Dhanai (32 Cal. 988).

The case arose as Civil Appeal No. 15 of 1951, an appeal from a judgment and decree dated 29 August 1944 of the High Court of Judicature at Allahabad (Madam Mulla and Yorke JJ.) in First Appeal No. 157 of 1942. That judgment in turn derived from the judgment and decree dated 19 November 1941 of the Court of the Civil Judge at Banaras in Original Suit No. 79 of 1941. The appellant was represented by counsel, while the Solicitor-General for India and counsel for respondent No. 1 appeared for the other side. On 23 April 1954 Justice Mukherjea delivered the judgment.

The plaintiff, who is the appellant before this court, had commenced the original suit in the Court of the Civil Judge at Banaras (Original Suit No. 79 of 1941) seeking enforcement of his claimed right of pre-emption over an enclosed plot of land bearing municipal number D 37/48, located within the Mohalla Baradeo of Banaras and containing certain structures. The property in suit was said to have belonged to defendants numbered 2 to 5, all residents of Calcutta, who had conveyed it by a deed executed on 29 March 1941 and registered on 3 April 1941 to defendant No. 1, also a resident of Calcutta, for the sum of Rs 7,000. The plaintiff was also identified as the owner of two other premises, namely premises numbered D 37/85 and D 37/44, situated in the same Mohalla and adjoining the disputed property on its northern and eastern sides.

The plaintiff owned two parcels of land identified as premises Nos. D 37/85 and D 37/44, which were situated in the same neighbourhood of Banaras and were adjacent to the disputed property on its northern and eastern boundaries. The plaintiff asserted that an ancient local custom in Banaras entitled him, as a neighbour, to claim a right of pre-emption over the disputed land. According to the plaintiff, upon learning of the sale he immediately asserted his right in the presence of witnesses, as required by Muhammadan Law, and subsequently dispatched a registered notice on 21 May 1941 to defendant No 1, demanding that the defendant transfer the property to him upon receipt of the price the plaintiff had already paid to the vendors. Because defendant No 1 failed to comply with that demand, the plaintiff instituted the present suit. Defendant No 1 was the sole respondent who contested the suit, and his written statement set out four separate pleas. First, he denied the existence of any custom of pre-emption among non-Muslims in Banaras, contrary to the plaintiff’s claim. Second, he argued that even if such a custom existed, it could not be invoked in this case because neither the sellers nor the buyer were natives or domiciliaries of Banaras but were residents of another province. Third, he contended that the plaintiff had not observed the proper procedure for making the two demands mandated by Muhammadan Law, and that the failure to satisfy those essential pre-conditions meant the suit could not succeed. Finally, he maintained that, as the plaintiff was himself the landlord of the property and the vendors were his tenants, no law or custom permitted him to evict his own tenants by invoking a right of pre-emption. The Civil Judge who tried the suit, after considering the evidence, held that a custom of pre-emption indeed existed in Banaras and that its requirements were identical to those of Muhammadan Law. However, the judge ruled that because the custom was a local one, it could not be enforced against the vendors or the buyer in the present case, since neither party was a native or domiciliary of Banaras. The trial judge also found that the plaintiff had failed to make the mandatory demands prescribed by Muhammadan Law. Consequently, the plaintiff’s suit was dismissed. In light of these findings, the Civil Judge deemed it unnecessary to address the remaining issue of whether a landlord could assert a pre-emption claim against his own tenants based on the alleged custom.

After the trial court had ruled that the plaintiff could not rely on the custom of pre-emption against his tenants, the plaintiff filed an appeal before the High Court of Allahabad. The appeal was heard by a Division Bench composed of Judges Mulla and Yorke. Both judges affirmed the trial court’s finding that, although a custom of pre-emption existed throughout the city of Banaras, the custom could be enforced only when both the vendor and the vendee were natives of, or were domiciled in, that city. Because the parties involved in the present suit did not satisfy this condition, the bench concluded that the plaintiff’s claim could not succeed. Consequently, the High Court dismissed the appeal and upheld the trial judge’s decision. The High Court, however, left undecided two ancillary questions: whether the plaintiff had made the demands required by the strict rules of Muhammadan law, and whether a landlord could claim pre-emption against his own tenants on the basis of a customary right. The judgment of the High Court was dated 29 August 1944. Following that judgment, the plaintiff applied for leave to appeal to the Judicial Committee. The High Court refused the application, but the Judicial Committee later granted special leave by order dated 11 December 1945. After the abolition of the Judicial Committee’s jurisdiction, the appeal was transferred to the Supreme Court for final determination.

The matters presented before the Supreme Court essentially revolved around a single point of contention. Both parties agreed that a custom of pre-emption operated throughout Banaras; the dispute lay in the scope of that custom. The respondents contended that the custom applied exclusively to persons who were inhabitants of the city or who were domiciled there, thereby limiting its operation to native or resident owners. In contrast, the appellant maintained that the custom imposed no such limitation and that every person who owned property in Banaras, irrespective of native status or residence, fell within its operation. Learned counsel for each side advanced a range of arguments supporting their respective positions, and the Court heard an extensive discussion on the nature of the pre-emption right as recognized in Muhammadan law, including its incidents when the right derived not from statute but from local custom. Before addressing the specific arguments, the Court considered it appropriate to make some general observations about the law governing the exercise of pre-emption in contemporary India. The Privy Council, in several decisions, had observed that the doctrine of pre-emption was introduced into the country by the Muhammadan rulers and that no comparable concept existed in traditional Hindu law, which had neither noticed nor discussed the subject.

There is no mention of the right of pre-emption in the writings of the Smriti authors nor in the commentaries that followed them. Sir William Macnaghten, in his work Principles and Precedents of Mahomedan Law, cites a passage from the Makanirvana Tantra which, according to him, suggests that the Hindus recognised pre-emption as a legal provision. However, the Makanirvana Tantra is essentially a mythological treatise, not a legal text, and it is a relatively recent composition. Consequently, a solitary and uncertain passage of this nature, whose authenticity is not beyond doubt, cannot be given any legal weight.

During the reign of the Mughal emperors, the rule of pre-emption operated as a part of the common law of the country in those territories that were under Muhammadan domination. It was applied uniformly to all persons living in those areas, whether they were Muslims, non-Muslims, Christians, or Hindus, and no distinction was made on the basis of race or creed. Over successive generations, Hindus began to adopt pre-emption as a customary practice mainly for reasons of convenience. This custom became especially prevalent in provinces such as Bihar and Gujerat, regions that had formerly been integral components of the Mughal empire.

Scholars differ on whether the custom of pre-emption among village communities in Punjab and other parts of India was imported from the Muhammadan legal system or emerged independently of it. Some argue that it derived from the doctrine of a “limited right,” a principle that has long characterised village societies. Substantial arguments can be found in support of either position, and there is reason to believe that even when the Muhammadan law was adopted, it was not always taken in its entirety. The Judicial Committee’s observations in Digambar v. Ahmad provide a useful reference. The Committee observed that in certain villages the shareholders followed the Muhammadan rule of pre-emption, making the village custom identical to that rule. In other villages, however, a distinct local custom of pre-emption existed, differing from the Muhammadan law in its provisions and incidents, and arising from an agreement among the village shareholders, sometimes even in villages that were established in modern times.

The present discussion does not require further elaboration on this point. Since the advent of British rule in India, Muhammadan law ceased to be the general law of the land, and pre-emption is not one of the matters that the colonial statutes expressly declared to be governed by Muhammadan law when the parties to a suit are Muslims. Consequently, the courts in British India administered the Muhammadan rule of pre-emption between Muslims only on the basis of justice, equity, and good conscience, without treating it as a uniform general law.

In cases where the parties to a suit are Muslims, the law explicitly declares that Muhammadan Law governs the decision. Accordingly, during the British period in India the courts applied the Muhammadan rule of pre-emption between Muslim parties on the basis of justice, equity and good conscience. However, the High Courts of India did not share a uniform opinion on this matter. The High Court of Madras, for example, held that the rule of pre-emption, because it restricts a person’s freedom to transfer property, could not be said to conform with the principles of justice, equity and good conscience (2). Consequently, the Madras Presidency does not recognise a statutory right of pre-emption even among Muslims, unless such a right arises from a local custom. In contrast, other provinces such as Punjab, Agra and Oudh have incorporated the right of pre-emption into statutes enacted by the Indian Legislature, and where the rule has been codified (1) 42 I.A. 10, 18; (2) Vide Krishna Menon v. Keshavan, 20 Mad. 305, it becomes the territorial law of that region and applies to all persons whose property is situated there, regardless of their religion. In still other parts of the country the operation of pre-emption depends on local custom; when the rule is customary, it is enforceable irrespective of the religious affiliation of the parties. Where the rule is neither territorial nor customary, it applies only between Muslims as a component of their personal law, provided that the local judiciary does not deem it contrary to justice, equity and good conscience. Apart from these sources, a right of pre-emption may also be created by contract, and the Judicial Committee has observed that such contractual arrangements are commonly found among co-sharers in a village. Against this background the Court examined the questions raised in the present dispute. The first issue presented for determination was whether the burden and benefit of a pre-emptive right attach to the lands of the vendor and the pre-emptor as incident interests, or whether the right is merely a personal right of repurchase that a neighbour or co-sharer may enforce against the vendee who has already acquired title by sale under Muhammadan Law. Counsel for the appellant argued in favour of the former view, whereas the Solicitor-General for the respondents contended that no established principle of jurisprudence allows a pre-emptor to claim any interest in the vendor’s property. It was further pointed out that the right of pre-emption arises only after a completed sale when the purchaser’s title is perfected; if the right were attached to the property itself, it would have to exist before the sale and would therefore be available not

The discussion continued by observing that the right of pre-emption should not be confined only to a sale but ought also to apply to other modes of transfer such as gift and lease. This line of reasoning was adopted by the majority of a Full Bench of the Calcutta High Court in the case of Sheikh Kudratulla v. Mahini Mohan (1) Beng. L.R. (Full Bench Rulings) page 134. In that case the Court had to decide whether, when a Muhammadan seller conveyed his property to a Hindu purchaser, the co-sharer of the Muhammadan vendor could enforce a right of pre-emption against the Hindu vendee under Muhammadan law. The majority of the Full Bench, with Mitter J. delivering the leading judgment, answered the question in the negative. While examining the nature of the right of pre-emption, Mitter J. explained that if the right depended on an antecedent defect in the vendor’s title—meaning a legal disability that prevented the vendor from selling the property to a stranger without first offering it to his coparceners and neighbours—then those coparceners and neighbours were fully entitled to demand that the Hindu purchaser surrender the property. He observed that even though a Hindu purchaser was not automatically bound by Muhammadan law, he was nevertheless bound by the principles of justice, equity and good conscience to investigate the title of his vendor. Accordingly, the law should not allow him to retain a property that his vendor had no authority to sell. Conversely, Mitter J. stated that if it could be shown that there was no defect in the vendor’s title—i.e., that the vendor was not under any disability under Muhammadan law—then, as a matter of course, there would be no defect in the title of the purchaser at the moment of its creation. He further concluded that, based on the material available to him, a right of pre-emption under Muhammadan law was merely a right of repurchase, not from the original vendor but from the vendee, who for all intents and purposes was treated as the full legal owner of the property that formed the subject of the right. The minority judges, namely Norman J. and Macpherson JJ., dissented and held that the law of pre-emption should be regarded as a real law that affects and attaches to the property itself. They described the liability arising from a claim of pre-emption as a quality impressed upon and inherent in the property, essentially an incident of that property. A similar issue was later considered before a Full Bench of the Allahabad High Court (1), where the question again was whether a Muhammadan pre-emptor could enforce his right against a Hindu vendee when the vendor was also Muhammadan. The learned judges of that Bench adopted a view that was opposite to the view taken by the majority of the Calcutta Full Bench.

By a majority of the Calcutta Full Bench, the question was answered affirmatively, holding that the right of pre-emption did not constitute a right of re-purchase from the vendee. The Court explained that this right was inherent in the property itself and therefore could be exercised by any purchaser, irrespective of his identity. Justice Mahmood examined in detail all the original authorities of Muhammadan law on this point and expressed the view that the pre-emptive right closely resembled an easement. He likened the dominant tenement and the servient tenement of an easement to what he termed the “pre-emptive tenement” and the “pre-emptional tenement,” respectively, indicating that the pre-emptive right functioned as a kind of legal servitude that ran with the land.

The Court observed that the right existed in the holder of the pre-emptive tenement at any given time, giving that holder the entitlement to receive an offer of sale whenever the owner of the pre-emptional property decided to sell. However, the Court stressed that this was not a right of re-purchase either from the vendor or from the vendee, and it did not require the formation of a new contract of sale. Instead, the right operated as a right of substitution, allowing the pre-emptor, by virtue of a legal incident attached to the original sale, to step into the position of the vendee and assume all rights and obligations arising from that sale. In effect, it was as though the vendee’s name in the sale deed were erased and the pre-emptor’s name were inserted in its place.

Justice Mahmood further pointed out that the Calcutta Full Bench decision was based on a mis-translation of the Arabic term “Tajibo” found in Hamilton’s Hedaya. Hamilton had rendered the term as “established,” whereas the correct meaning was “becomes obligatory, necessary or enforceable.” Consequently, the right did not need to be established by a separate act; it was attached to the tenement and remained attached, capable of being enforced immediately against adjoining tenements that had been sold under certain circumstances.

The Court noted that the Patna High Court adopted this reasoning in Achyutananda v. Biki (1). A Division Bench of the Bombay High Court, in a judgment delivered in 1928 (2), initially accepted the Calcutta majority’s view, but a later Full Bench of the same court (3) rejected the reasoning of that earlier decision. The later Bench held that the pre-emptive right was an incident of property and aligned substantially with Justice Mahmood’s view expressed in the Allahabad Full Bench. In the present opinion, the Court concluded that it would be incorrect to describe the Muhammadan pre-emptive right as a personal right of the pre-emptor to obtain a re-transfer of the property from a vendee who had already become the owner.

The Court preferred to accept the meaning of the term “Tajibo” as it appears in the Hedaya, interpreting it in the sense adopted by Mr. Justice Mahmood. The Court observed that the earlier translation of the term by Hamilton was erroneous and that this mistranslation had largely contributed to the view expressed by the Calcutta High Court. Although the Court acknowledged that the right of pre-emption becomes enforceable only after a sale has taken place, it emphasized that the right itself existed prior to the sale. The foundation of the right, the Court explained, lay in the intention to avoid the inconveniences and disturbances that could arise from the introduction of a stranger into the land. Accordingly, the Court agreed with Mr. Justice Mahmood that the sale served as a condition precedent not to the existence of the right but to the right’s enforceability. The Court did not, however, express an opinion on the learned judge’s suggestion that the right of pre-emption possessed a character closely resembling an easement. It noted that analogies are not always helpful; even if there is some resemblance between the two concepts, the differences between them remain materially significant.

The Court stated that the correct legal position, as reflected in cited authorities (1) 1 Pat. 578, (2) Hamed Miya v. Benjamin, 53 Bom. 525, and (3) Dasharathilal v. Bai Dhondu Bai, I.L.R. 1941 Bom. 460, was that the law of pre-emption imposes a limitation or disability on the ownership of a property. This limitation restricts the owner’s unfettered right to sell and compels the owner to sell the property to a co-sharer or neighbour, as the circumstances may require. The Court explained that a person who is a co-sharer in the land or who owns adjoining lands consequently receives a benefit corresponding to the burden placed on the owner of the property, even though this benefit does not amount to an actual interest in the sold property. The essential point, the Court observed, was that both the benefit and the burden of the right of pre-emption run with the land and may be enforced by or against the current landowner, although the pre-emptor’s right does not constitute an interest in the land itself. The Court further noted that if the right of pre-emption were merely a personal right enforceable against the vendee, a bona-fide purchaser without notice would obtain an absolute title, unimpeded by the pre-emptor’s claim, and there would be no equitable justification for enforcing the right against such a purchaser. Consequently, the Court concluded that the law of pre-emption creates a right that attaches to the property, and on that basis the right can be enforced against the purchaser. The Court then indicated that the next question concerned the legal position when the right is claimed on the basis of a custom rather than under Muhammadan law.

In this case the Court considered the legal position that arises when a claim to pre-emptive rights is made not on the basis of Muhammadan law but on the foundation of a locally-recognised custom. The parties did not dispute that, where non-Muslims rely upon a custom to assert a right of pre-emption, the existence of that custom must be proved by competent evidence. Nevertheless, the Court noted that the Judicial Committee, following the Calcutta High Court decision in Fakir Rawat v. Emman, held that once a custom is generally known and judicially recognised in a district as granting Hindus the same pre-emptive rights as Muslims, the parties are not required to provide further proof of its existence. A substantial series of decisions has established the presence of such a custom in Bihar, Sylhet and certain parts of Gujarat. Regarding the present proceedings, the plaintiff produced a large number of judgments to demonstrate that a custom of pre-emption operates throughout the whole city of Banaras. The Court observed that at least three reported cases show that the Allahabad High Court has affirmed the existence of those rights in Banaras. The defendants did not contest the existence of the custom itself; their dispute concerned the scope and incidents of the custom. Specifically, the defendants argued that the custom should be limited to interactions between persons who are natives of or domiciled in Banaras and should not be extended to an outsider, even if such outsider holds property within the city that is the subject of the claim. The Privy Council in Jadhulal v. Janki Koer expressly stated that when evidence establishes a non-Muslim custom of pre-emption prevailing in a particular locality, the custom is to be presumed to be founded upon and co-extensive with Muhammadan law on that subject unless the contrary is shown. Moreover, the Court may, between Hindus, modify the law concerning the circumstances under which the right may be claimed, if it is shown that the custom does not cover the entire ambit of Muhammadan pre-emption law. However, any assertion of the right by suit must first observe the preliminary forms prescribed in Muhammadan law, forms that have been consistently observed throughout the recorded cases from the earliest times. In the present matter the defendants made no attempt to demonstrate that the custom of pre-emption set up, as cited in cases such as Chakauri Devi v. Sundari Devi, Ram Chandra v. Goswami Ram Puri, and Gouri Sankar v. Sitaram, was limited in any of the ways they alleged.

The Court observed that the plaintiff did not fall within the category of persons contemplated by Muhammadan Law. It noted that one decided authority mentioned a single difference, namely that the custom of pre-emption in the city of Banaras applied only to house property and not to vacant land. However, a later decision altered that view by holding that even building sites and small parcels of vacant land fell within the scope of the custom. The Court further examined the various judgments cited by the parties and found no indication that, according to the custom in Banaras, pre-emption could be claimed solely against inhabitants or domiciled persons of the place, nor that the custom could not be enforced against a property situated in the city whose owner was not a native of that locality. In fact, the Court noted that none of the cited cases raised or discussed such a limitation. The Court explained that the extent of a custom is a factual question that must be proved, and that the defendants had the opportunity to produce evidence showing that the Banaras custom applied only to a particular class of land-holders and not to all persons holding land there. The defendants, however, did not attempt to do so at any stage of the proceedings. Their argument, which had been accepted by both lower courts, was that, as a matter of law, a local custom of pre-emption did not affect persons who were not natives or domiciled in the area. To support this proposition, the lower courts relied mainly on the statements of legal authors such as Roland Wilson and other textbook writers on Muhammadan Law, who claimed to base their views on certain decided cases. Roland Wilson, in his treatise on Anglo-Mahammadan Law, wrote that where a custom is judicially recognized as prevailing among non-Muslims in a particular locality, it does not bind non-Muslims who, although holding land there, are neither natives nor domiciled in the district. The Court cited two cases invoked to support this view: Byjnath Pershad v. Kapilmon Singh and Parsashth Nath Tewari v. Dhanai. Mulla’s commentary on Muhammadan Law repeated the rule in similar language. Tyabji likewise formulated the principle, stating that the law of pre-emption is personal, not territorial, and that a person who is not a native or domiciled in the locality where pre-emption is enforced by law or custom, even if he owns land there, will not necessarily be subject to the law of pre-emption.

The Court explained that the passage quoted earlier demonstrates the underlying principle of the doctrine: the law of pre-emption is characterised as a purely personal rule even when it is founded on local custom, and it is not regarded as an incident of property. Consequently, the right created by that rule can be enforced only against persons who either belong to a specified religious community or satisfy the description of being natives or domiciliaries of a particular district. In the leading case of Byjnath Pershad v. Kapilmon Singh, the vendor of a house situated in the town of Arah, in the province of Bihar, was Rajani Kanta Banerjee. Although Banerjee was originally a native of lower Bengal, he resided at Arah and practiced as a lawyer there. He sold the property to the defendant, and the plaintiff instituted suit alleging a right of pre-emption on the ground of vicinage. The court accepted that a custom of pre-emption existed among non-Muslims in Bihar, but it dismissed the suit on the ground that the vendor, not being a native of the district, was not bound by that custom. The judgment held that the right of pre-emption arises from a rule of law which binds the landowner, and that the right ceases to exist once the owner who is bound by law—whether by Muhammadan law or by local custom—no longer holds the property. The Court then expressed the view that this decision rested on an erroneous assumption. It reiterated that the right of pre-emption is in fact an incident of property and attaches to the land itself. While among Muslims the right undoubtedly originates from their personal law, that is because the law of pre-emption does not form part of the general law of India. Muslims are scattered throughout the country, and without treating the right as a component of their personal law they would lose its benefit entirely. Therefore, when a Muslim owns land in any locality and has co-sharers or neighbouring proprietors who are also Muslims, a right of pre-emption accrues to those co-sharers under Muslim personal law, a right that has been enforced in this country since the British era on grounds of equity, justice and good conscience. Nonetheless, although the source of the right may be personal law, the right itself is not personal; it is a real right that attaches to the land. When the right is created by custom, it is, as the Privy Council observed, co-extensive with the right that exists under Muhammadan law unless evidence proves otherwise. This means that the nature and incidents of the right are identical in both contexts. In each situation the right creates an interest in the property itself rather than a mere personal claim against the vendor or vendee, and the essential prerequisites for exercising the right are the same.

The Court noted that the terms of enforcement are the same for both the statutory provision and the customary rule, but it stressed that this similarity does not imply that the customary right must be limited to the inhabitants of a specific locality. The Court explained that the right could be confined to local residents only if the custom itself, as proved by evidence, expressly incorporates such a restriction; otherwise, the right is not personal to any particular group. Under Muhammadan Law, the right of pre-emption is restricted to persons of a particular religious persuasion because it originates from that personal law, which, the Court observed, is no longer a law of the land. However, when the right arises from a local custom, the religious affiliation or community membership of the parties becomes immaterial. The Court held that the essential requirement in such cases is to demonstrate that the right of pre-emption is recognized in a particular locality. Once that recognition is established, the land owned by every person in that locality becomes subject to the custom, regardless of the owner’s religion, nationality, domicile or any other personal characteristic. The Court criticised the prevailing doctrine for being based on a mistaken assumption that the right of pre-emption is a personal right dependent on conditions such as religion, nationality or domicile of the parties. The Court observed that this misconception entered Indian law merely because the right of pre-emption among Muslims had historically been administered as part of their personal law. The correct legal position, the Court affirmed, is that when a right of pre-emption is founded on custom, it becomes the lex loci, the law of the place, and it applies to all lands situated there, irrespective of the owners’ religion, nationality or domicile, unless the custom itself expressly includes such restrictions. The Court then examined the earlier authorities. It observed that the decision in Byjnath Kapilmon(1), which had been in line with the view of the Calcutta High Court on the nature of the right of pre-emption, formed the basis for the statement of law reproduced in an earlier edition of Roland Wilson’s treatise. Likewise, the decision in Parslashth Nath v. Dhanai(2) relied entirely on the same statement of law and did not advance the issue further. The Court concluded that these decisions were not correct and that the argument advanced by counsel for the appellant should be adopted. Accordingly, the Court held that a local custom of pre-emption exists in the city of Banaras and that the right attaches to at least all house properties within the city. No evidence was found of any incident of the custom that would limit the right to persons who are native to or domiciled in Banaras. Consequently, the Court allowed the appeal, set aside the judgments of both lower courts, and ordered that the matter be remitted to the High Court to determine the two unresolved questions, namely whether the plaintiff has made the required demands in accordance with the prescribed forms.

In directing the proceedings to return to the High Court, the Court identified two specific questions that remained unresolved by the lower tribunal and required further examination. The first question concerned whether the plaintiff had complied with the procedural requirements established under Muhammadan Law when making his demand; the Court emphasized that the plaintiff’s demand needed to be in strict conformity with the forms prescribed by that legal system. The second question addressed the substantive issue of whether a person who is a landlord may, by invoking the right of pre-emption, lawfully evict his own tenants; the Court noted that this question involved the interpretation of the right of pre-emption as it applied to a landlord-tenant relationship. In evaluating the latter issue, the Court referred to the authorities cited as (1) 24 W.R. 95 and (2) 32 Cal 988, indicating that those precedents were relevant to determining the scope of the landlord’s authority to eject occupants under the doctrine of pre-emption. Regarding costs, the Court ordered that the appellant should be awarded the expenses incurred in pursuing this appeal, to be recovered from respondent number one. Additionally, the Court stipulated that any further costs arising from subsequent proceedings would be allocated in accordance with the eventual outcome of those proceedings. By these orders, the appeal was expressly allowed, and the judgments of both lower courts were set aside, with the matter remitted to the High Court for a fresh consideration of the two identified questions.