Kanhaiya Lal and Sulaiman, JJ.
1. The facts are fully set forth in our judgment dated the 3rd of August, 1921. On the 9th of June, 1917, Mrs. Kinloch executed a sale-deed, in favour of the defendant vendee, of considerable property, including shares in two villages, Kachhpura Bibamau and mahal Girwar Singh of mauza Salehdi. In both these villages the plaintiff was a co-sharer at the time of the sale. On the 30th of January, 1918, under a private sale-deed, the plaintiff transferred all his interests in mahal Girwar Singh of village Salehdi in favour of a third party. A few months after this, the present suit for pre-emption was instituted in which the plaintiff omitted to pre-empt the share in mauza Salehdi. On behalf of the defendant it was pleaded inter alia that there was a custom of pre-emption existing in village Salehdi tinder which the plaintiff was entitled to pre-empt the share transferred therein, and that inasmuch as the transaction of the 30th of January, 1918, was in reality a mortgage by conditional sale, the plaintiff had still a subsisting proprietary right in it and had a right to pre-empt. By his not having claimed pre-emption in respect of a part of the property transferred, his whole claim was barred. It was further pleaded that in any case the plaintiff, having voluntarily deprived himself of his right to pre-empt a portion of the property, was prevented from pre-empting the remainder. As there was no clear finding on the question of the existence of a custom in mauza Salehdi, this Court sent down an issue on the point and also directed the court below to record a clear finding as to the values of the different parts of the property. That finding has been returned.
2. The finding on the question of custom must be accepted. The defendant produced a copy of the wajib-ul-arz of 1872 which' clearly records a custom of pre-emption under which a co-sharer in the patti in which the property is situated has a first right, and, after him, co-sharers in other pattis have a right of pre-emption. On behalf of the plaintiff an earlier wajib-ul-arz of 1833 was produced which simply stated that all the zamindars have the option to sell and mortgage the property but shall first transfer it to co-sharers of the village, and if they do not take it, then to a stranger. But, as pointed out by the court below, in the year 1833 the sub-divisions into pattis did not exist, and, therefore, the entries in the two wajib-ul-arzes are not necessarily contradictory. Furthermore, the defendant relied on a judgment of the year 1882 by which a claim for pre-emption was actually decreed on the basis of custom. The defendant by the production of these pieces of evidence had established a prima facie case that the custom exists. That case has in no way been rebutted. We are, therefore, of opinion that the finding of the lower court that there does exist a custom of pre-emption in village Salehdi, mahal Girwar Singh, is correct.
3. The next important question which requires consideration is as to whether the transaction of the 30th of January, 1918, was an out and out sale or a mortgage by conditional sale. Under that document, Maharaj Singh, in lieu of Rs. 3,000, which was part of the amount due on a previous mortgagedeed, dated the 19th of December, 1905, purported to transfer his share in village Salehdi out and out, but the document contained a provision to this effect:-- 'If within six years, in the month of Jeth, I, the executant, pay the amount of sale consideration, Rs. 3,000, and the arrears of rent which may then be due against the tenants, the vendee shall reconvey the vended property to me, otherwise the property shall not be reconveyed.'
4. We may also note that at one place in the body of the document the consideration for this deed of transfer is described as 'mortgage money.' The original document shows that the scribe had first written the words zar-i-saman (sale consideration) ; this was struck out and the words zar-i-rehan (mortgage money) were substituted. The transferor actually signed this correction. There can be no doubt that unless it be shown that the intention was to the contrary, the transaction comes within the definition of Clause (c) of Section 58 of the Transfer of Property Act. Here there is ostensibly an out and out sale, but there is also a condition that 'on such payment being made the buyer shall transfer the property to the seller.' Prima facie, therefore, the deed falls within the definition of a mortgage by conditional sale as given in Section 58. It was pointed out by RICHARDS, C.J., in the case of Jhanda Singh v. Wahid-ud-din (1011) I.L.R. 33 All. 585 (599) that 'If at the time of the execution of the first deed the parties intended that the second deed also should be executed, we ought to hold that the two deeds. constituted a mortgage by conditional sale and that the plaintiff has a right to redeem. If the two deeds were of even date an almost irresistible presumption would arise in favour of the transaction being a mortgage.' In the present case it is the same document which effects the transfer and also contains the stipulation as to reconveyance. We have, therefore, to see if there is anything in the document or in the contemporaneous acts and conduct of the parties which would go to show that the real intention of the parties was to execute a sale-deed, and that there was an independent agreement that the property would be re-transferred in case the whole amount was paid within the fixed period.
5. The learned vakil for the plaintiff has relied on a number of circumstances. His contention was that there was no motive for the execution of the mortgage deed inasmuch as no fresh advance was made and it was only in lieu of the amount due on the previous deed that this document was executed. We may, however, point out that the limitation for the document of the year 1005 was nearly running out and it was absolutely necessary either to pay it up or renew it. That circumstance, therefore, is not conclusive either way. It is also contended that if the parties had intended to execute a mortgage by conditional sale, they would have expressly said so, but we all know that documents of that kind are often executed in the garb of a sale-deed; therefore that argument also does not carry much weight. It is next pointed out that the value of the property sold was nearly equal to, if not less than. Rs. 3,000 which was the consideration for this document. This might be true, but at the same time this would not necessarily militate against the view that the document was in reality a mortgage deed. The outstanding fact remains that in the deed itself there was an express condition put down that in case the amount is paid within the period of fix years, the transferee would be bound to re-transfer the property to the transferor. We cannot treat it as any separate or independent agreement, and we are of opinion that on the construction of the document, reading it as a whole, there can be no doubt that it was a mortgage by conditional sale and not an out and out sale.
6. The result, therefore, is that even after the execution of this deed, Maharaj Singh, plaintiff, had a proprietary interest left in the mahal in question. He had thus a right to claim pre-emption in respect of the property situated therein. We, therefore, think that, having omitted to claim pre-emption in respect of that part of the property, his entire claim must fail, because he cannot be allowed to claim a partial pre-emption.
7. It was pointed out by Mr Justice Mahmood, in the case of Durga Prasad v. Munsi (1884) I.L.R. 6 All. 423 and Sheobharos Rai v. Jiach Rai (1886) I.L.R. 8 All. 462 'that the principle of denying the right of preemption except as to the whole of the property sold is that by breaking up the bargain the pre-emptor would be at liberty to take the best portion of the property and leave the worst part of it with the vendee.'
8. These cases have since been followed uniformly by this Court. It is, however, contended by Mr. P.L. Banerji, on behalf of the plaintiff, that the principle underlying these cases would only apply if the plaintiff is entitled to claim pre-emption in respect of the entire property covered by the sale-deed, and that if his claim must of necessity be confined to a portion of the property sold, then the integrity is already broken and the principle would be inapplicable. We are, however, unable to accede to this contention. On the same principle we think that it is the duty of the pre-emptor to claim pre-emption in respect of the whole of that part of the property sold as to which he has a right. If the vendee has included properties in which the plaintiff has no right to pre-empt, the pre-emptor is entitled to exclude them, but he must nevertheless claim pre-emption in respect of the whole of that part with regard to which he has a right. We are, therefore, of opinion that if the plaintiff has omitted to sue for pre-emption in respect of any portion of that part over which he has a right, his whole claim must fail.
9. The learned advocate for the defendant appellant further contended that the plaintiff respondent, having by his own act voluntarily transferred his interest in village Salehdi, had deprived himself of his right to claim pre-emption in respect of that village, and inasmuch as his claim was lost owing to his own act, he was not entitled to claim pre-emption of the remaining property. In the view which we have taken as to the real nature of the transaction, it is not necessary to express any opinion on this point.
10. The result is that this appeal is allowed, the decree of the lower appellate court is set aside and the plaintiff's suit is dismissed with cots.