1954 (4) TMI 61 - SC - Indian Laws

Summary

Issues Involved:
1. Existence of a custom of pre-emption in Banaras.
2. Applicability of the custom to non-natives or non-domiciled individuals.
3. Compliance with the demands as per Muhammadan Law.
4. Right of a landlord to claim pre-emption against his tenants.

Issue-wise Detailed Analysis:

1. Existence of a Custom of Pre-emption in Banaras:
The plaintiff claimed a customary right of pre-emption in Banaras, which was contested by the defendant. The trial court and the High Court both acknowledged the existence of such a custom in Banaras. The Supreme Court affirmed this finding, citing multiple judgments that recognized the custom of pre-emption in Banaras, including cases like *Chakauri Devi v. Sundari Devi*, *Ram Chandra v. Goswami Ram Puri*, and *Gouri Sankar v. Sitaram*. The Privy Council's stance in *Jadulal v. Janki Koer* was also referenced, which stated that once a custom is judicially recognized, it need not be proved repeatedly.

2. Applicability of the Custom to Non-natives or Non-domiciled Individuals:
The primary contention was whether the custom of pre-emption applied to individuals who were not natives or domiciled in Banaras. The lower courts held that the custom did not bind non-natives or non-domiciled individuals. However, the Supreme Court disagreed, stating that the right of pre-emption is an incident of property and attaches to the land itself, irrespective of the owner's domicile or nativity. The Court criticized the reliance on Roland Wilson's and Tyabji's interpretations, which were based on outdated and incorrect assumptions. The Court concluded that the custom of pre-emption in Banaras applies to all house properties within the city, regardless of the owner's domicile.

3. Compliance with the Demands as per Muhammadan Law:
The trial court found that the plaintiff did not make the requisite demands as mandated by Muhammadan Law, which was a necessary condition for claiming pre-emption. The High Court did not decide on this issue. The Supreme Court remanded the case to the High Court to determine whether the plaintiff complied with the demands in accordance with Muhammadan Law.

4. Right of a Landlord to Claim Pre-emption Against His Tenants:
The trial court did not address whether a landlord could exercise the right of pre-emption against his tenants. The High Court also left this issue undecided. The Supreme Court remanded this question to the High Court for determination.

Conclusion:
The Supreme Court allowed the appeal, set aside the judgments of the lower courts, and remanded the case to the High Court for consideration of the unresolved issues regarding the plaintiff's compliance with the demands as per Muhammadan Law and the landlord's right to claim pre-emption against his tenants. The appellant was awarded costs from respondent No. 1, with further costs to be determined based on the final outcome.