John Stanley, C.J.
1. This appeal arises out of a pre-emption suit. The Court of first instance dismissed the plaintiffs' claim on the ground that the right set up by them was a right existing by contract and not by custom and that the period for which the contract was entered into having expired, the right came to an end. The same view was taken by the learned District Judge upon appeal to him. Hence this appeal to the High Court.
2. In consequence of a conflict in the decisions of the Court in regard to the construction of wajih-ul-arzes in the District of Shahjahanpur, corresponding to the wajib-ul-arz before us in this case, the appeal was sent to a larger Bench so that there might be a binding decision of the Court upon the true meaning of the pre-emptive clause in the wajib-ul-arz before us, and similar clauses in other wajib-ul-arzes in regard to the right of pre-emption. The wajib-ul-arz runs thus: 'If a co-sharer has to sell and mortgage his Hakeat and a mortgagee has to sub-mortgage, then at the time of transfer it will be incumbent that he should, after giving information sell and mortgage for a proper price, first to a near co-sharer and, in case of his refusal, to another co-sharer in the village; should he not take it, or not give a proper price, then he (the vendor) will have power to transfer it to whomsoever he likes.' This translation is admitted by the parties to be an accurate translation of the wajib-ul-arz in regard to pre-emption. The paragraph in which this right is set forth is headed 'Relating to the right of pre-emption (dar bab haq shufa).' It has been suggested that this heading indicates that the right was not one existing by custom but arising out of contract as the word custom is not used in the heading. I am not disposed to attach any importance to the omission of the word '0custom' in the heading of paragraph 14. It appears to me that the words ''relating to the right of pre-emption' would apply equally well to a right of pre-emption existing by custom as to a right of pre-emption arising out of contract. In the Full Bench case of Majidan Bibi v. Sheikh Hayalan A.W.N. (1897) 3, it was laid down that 'If a wajib-ul-arz did not itself show, or if it was not otherwise proved, that the pre-emption clause was merely the embodiment of a new contract as to pre-emption, the reasonable and proper construction of such a document would be that the pre-emption clause was merely the recital of a pre-existing custom in force in the village ; and in such a case, it would be for the defendant in a suit for pre-emption to prove by clear evidence that no such custom had existed in the village, and that the vendor and the plaintiff had not agreed to be bound by the recital.'
3. This rule I fully approve of. It has been followed in a number of cases. [See Baldeo Sahai v. Nagai Ahir 3 A.L.J. 850, also Sewak Singh v. Girja Pande 2 A.L.J. 6 : A.W.N. (1905) 16].
4. From the language of the wajib-ul-arz before us, there is nothing to indicate that the pre-emption clause is merely the embodiment of a new contract. On the contrary, the language in which the paragraph is couched is equally applicable to a right of pre-emption existing by custom as it is to a right of preemption existing by contract. Applying, therefore, the rule that the pre-emption is in favour of custom, as there is nothing in the wajib-ul-arz to indicate that the right recorded therein is one-arising from the contract of the parties, the words used in this wajib-ul-arz should be interpreted as recording a right existing by custom.
5. As regards the decisions of this Court, we find that in Second Appeal No. 641 of 1906, decided on the 15th of August 1907, Fuizulldh Khan v. Loknath, it was held that the right of pre-emption embodied in a wajib-ul-arz of property in the Shahjahanpur district similar to the record before us, was a right arising from contract. We have examined the judgment in that case, and we find in it that reliance was placed on the fact that nowhere in the plaint was custom set up. The learned Judges seem to have based their decision to some extent at all events upon this omission in the plaint.
6. In the case of Mann Singh v. Hira Lal, Second Appeal No. 822 of 1908, decided on the 25th of May, 1909, the question before us was not raised. The learned Judges in their judgment point to the fact that it was not disputed by the parties that the right recorded in the wajib-ul-arz, then before the Court was a right existing by contract. This, therefore, may be treated as a decision of no account.
7. In three later unreported cases, namely, Mali Bam v. Bahvant Singh, F.A.F.O. No. 113 of 1908, decided on the 27th of May 1909, Mohan Lal v. Bhola Nath S.A. No. 1148 of 1908, decided on the 23rd of February 1910, Gopal Singh v. Dwarka Prasad, F.A.F.O. No. 96 of 1909, decided on tho 18th of January 1910, it was held that language in the wajib-ul-arzes in those cases similar to the language in the wajib-ul-arz before us should be interpreted as the record of a custom and not the record of a contract. I think these three last mentioned cases were rightly decided, and in the present case I would hold that the right recorded in the wajib-ul-arz is a right existing by custom.
8. I would, therefore, set aside the decrees of both the lower Courts and remand the case to the Court of first instance through the lower appellate Court for decision upon the merits.
9. I am of the same opinion. The rule as to the construction of documents of this nature was laid down in the case of Majidan Bibi v. Sheikh Hayatan A.W.N. (1897) 3. According to that rule a record in the wajib-ul-arz must be deemed to be the record of a custom unless the document itself indicates, or it is otherwise proved, that the pre-emption clause was the embodiment of a new contract. This rule has been adopted and followed in many subsequent cases. The wajib-ul-arz in the present case does not clearly show that it is the record of a contract relating to pre-emption. It must, therefore, be deemed to be the record of an existing custom.
10. As to the rulings in which a contrary view was held in regard to wajib-ul-arzes the terms of which are similar to those of the wajib-ul-arz in this case, I was a party to one of them, namely, Mann Singh v. Hira Lal. As pointed out by the learned Chief Justice it was not disputed in that case that the right recorded in the wajib-ul-arz was a right arising by contract. The lower Court held that the wajib-ul-arz contained the record of a contract and this view of the lower Court was not questioned in second appeal. Therefore, it was not necessary, in that appeal, to consider whether the wajib-ul-arz contained the record of a contract or of a custom. That case is, therefore, no authority as to the interpretation to be put on the wajib-ul-arz in question. I agree in the order proposed by the learned Chief Justice.
11. There is nothing in the extract from the wajib-ul-arz before us which indicates that it was intended to record a contract. It is, therefore, presumably record of a custom. I agree in the order proposed by the learned Chief Justice.
12. The order of the Court is that the appeal be allowed, the decision of the lower Courts set aside, and the case remanded to the Court of first instance through the lower appellate Court, with directions that it be re-instated in the file of pending suits in its proper number and be disposed of on the merits, regard being had to the observations made by us in our judgments this day delivered. Costs here and hitherto will abide the event.