TMI Blog1927 (3) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... September 1913, he was declared, insolvent by the Bombay High Court, and all his property, including the shares in question, was vested in the Official Assignee of Bombay. The Official Assignee put up the property, for sale at Aligarh by public auction on the 8th November 1914. A bid was made but was not accepted by the Official Assignee, and the sale was re-advertised for the 6th December 1914. A bid of ₹ 40,000 was made by one Sheoraj Singh and he was declared purchaser, subject to confirmation by the Official Assignee. On the next day the auctioneer received a private offer of a greater amount. The result of the private offer was that the property was sold privately for ₹ 41,000 to a purchaser, since dead, who is represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no custom had been proved. 6. Admittedly, the proof in favour of the custom is provided only (for oral testimony may be disregarded) by an entry in the wajib-ul-arz of the village, which is as follows: 'Wajib-ul-arz' of mauza Piplat Gokulpur, pargana, Koil, district Aligarh, prepared in 1280 Fasli. Paragraph 18. - As to the transfer of property and the right of pre-emption : Each co-sharer is entitled to transfer his property, but he should transfer it first to a co-sharer the descendant of a common ancestor, and in case of refusal on his part to other co-sharers in the village, and if they also do not take it, then to anyone he may like. If there be any dispute between the transferrer and the person having a right of pre-e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. They found the custom proved. 12. The respondents appealed to the case of Anant Singh v. Durga Singh [1910] 32 All. 263, where an alteration of the law of inheritance was held not proved, but the ratio decidendi is clearly given in the judgment of the Board, where it is said: Where, are here, from internal evidence it seems probable that the entries recorded connote the views of individuals as to the practice that they would wish to sea prevailing rather than the ascertained fact of a wall-established custom, the learned Judicial Commissioners properly attached weight to the fact that no evidence at all was forthcoming of any instance in which the alleged custom had been observed. 13. The respondents sought to say that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, which affords the ground of judgment in the High Court. Their ratio decidendi is really contained in a single sentence: Now, in the circumstances of the present case, this being the custom, it is clear that no co-sharer has sold his share at all. 16. And again: We find it impossible to hold the view that a village custom which refers only to a voluntary sale by one co-sharer of his property can in any way apply to the case of an involuntary sale carried out against his wishes by a Court through a Collector or an Official Assignee, or anybody else. 17. With deference to the learned Judges it seems to their Lordships that this overlooks one of the fundamental principles of all arrangements for the realization and distribution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the provisions of the statute. An illustration of this doctrine may be found in the case of Att. Gen. v. De Keyser's Royal Hotel [1920] A.C. 508. As an illustration of how there is no privilege of person may be taken the case of The Collector of Fattehpore v. Syud Yad Ali 1 N.W.P.H.C. Rep. 88, where the Government as standing in right of a convict had to submit to the right of pre-emption. Just, therefore, as if the conveyance had been made to an individual, that individual would have had at once the disadvantage and the privilege of the custom of preemption, so the Official Assignee was in the same position and could only sell what he got. 19. Their Lordships will therefore humbly recommend His Majesty that the appeal should be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
