MUNNI LAL versus BISHWANATH PRASAD & ORS.

Citation: [1968] 1 S.C.R. 554 · Decided: 15-09-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Judgment (excerpt)

MUNNILAL 
v. 
BISBWANATH PRASAD & ORS. 
September 15, 1967 
(K. N. WANCHOO, C.J.,_ R. S. BACHAWAT, V. RAMASWAMI • 
. ' 
G. K. MrrTER AND K. S. HEGDE, JI.) 
Pre-limption-Whether lease-hold (Parjoti) land can be pre-empt. 
ed under a cwrtom in Benaras co-extensive with Mahomedan Law. 
A 
B 
The respondent brought a suit for pre-emption of certain lease-
hold (Parjoti) land in Benaras w!µch was sold under a sale deed in 
February, 1942. He claimed that there was a custom of pre-emption 
in the whole of the city of Benaras, that he was the owner of a house C 
and land adjacent to the property sold, that he was entitled to pre-
e_mpt as a shafi-i-jar (pre-emptor by right of vicinage) and also as a 
shafi-i-khalit (pre-emptor by right of appendages), and that the neces-
sary talabs had been performed. 
The Trial Court held that there was a custom of pre-emption in 
the locality which was ~xtensive with Mahomedan Law of pre-
emption. that the respondent was the owner of a contiguous house D 
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 least· 
hold property could be pre-empted and held that though the ven-
dors were lessees and paid some ground-rent, they were for all in~ E 
tents and purposes owners and therefore the land was pre-emptlble. 
It therefore allowed the appeal and granted a decree for pre-emp-
tion. 
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 pro-
emption even in the case of transfer of parjoti land had been prov- F 
ed. 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 fand in the city of Benaras 
and (ii) that Mahomedan Law recognises pre-emption only with 
respect to full proprietary rights and does not recognise pre-emp. G 
tion with respect to lease-hold rights: as the custom in Benaras 
which was found proved was co-extensive with Mahomedan La11•. 
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 co-
extensive with Mnhomedan Law whatever might be the ground on H 
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 
MUNN! LAL v. BISHWA.NA'rH (W(llw/wo, C'.J.) 
555 
A 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 pre-empted 
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-<!mption for 
B reciprocity is the basis of Mahomedan Law of pre-<!mption. [559G] 
Baboo Ram Galam Singh v. Nursinq Sahoy & others, (1875) XXV 
Weekly Reporter (Sutherland) 43; Phu! 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.LR. 1955 AIL 698; referred to. 
· 
C 
Bhagwati Prasad v. Balgobind, A.I.R. 1933 Ottdh 161; distihguish-
ed. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2460 of 
1966. 
Appeal by special leave from the judgment and order dated 
D November 9, 1960 pf 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 
E 
Wanchoo, C. J. The main quest

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