1. Second Appeals Nos. 1792, 1793, 1794 and 1795 are defendants' appeals and are connected with each other. On 3rd April 1925, a sale deed of five annas four pies share in two mahals of mauza Lohradih was executed by Jagpat Singh in favour of Dallu Singh was Rs. 1,000. On the same date a perpetual lease was executed by the same person in favour of Sukhdeo Singh, who was a nephew of the vendee. This lease related to sir lands and was in lieu of a premium of Rs. 3,000 fixing an annual rent of Rs. 90, By a subsequent compromise, dated 14th October 1925, in a suit brought by the transferrer to set aside these two transfers it was ultimately agreed to return the share in one mahal to the transferrer, the transferee retaining the share in mahal Katwaru only. It is this share which is in dispute in these appeals.
2. The present plaintiffs instituted a suit (out of which S.A. No. 1792 arises) to pre-empt both the sale and the perpetual lease of the shares in mahal Katwaru, alleging that the two were part and parcel of one transaction and constituted a single transaction of sale. They also alleged that the subsequent compromise was a fraudulent device and was a mere paper transaction.
3. In order to meet the claim the defendants obtained a deed of gift of a share in mahal Katwaru from one Baij Nath on 19th April 1926, while the pre-emption suit was pending, and the claim was resisted on the strength of this deed of gift. Second appeal No. 1793 arises out of this suit to avoid the deed of gift.
4. The plaintiffs also instituted a suit to pre-empt the transfer under this deed of gift, alleging that, though ostensibly a gift, it was in reality a sale transaction. Second appeal No. 1795 arises out of this second suit for pre-emption.
5. Subsequently, there was another sale deed, dated 18th September, 1926, under which another share was transferred to the vendees for Rs. 800 in mahal Katwaru. A suit for pre-emption was instituted by the present plaintiffs to claim this share also. Second appeal No. 1794 arises out of this third suit for pre-emption.
6. The lower appellate Court has found as a fact that the gift of 19th April 1926, was in reality a sale transaction, and being a transfer of joint family property without legal necessity, was not binding on the minor. It has accordingly set aside that sale. It has further found that the sale and the lease of 3rd April 1925, were part and parcel of one single transaction in favour of the same joint family, the total consideration being Rs. 4,000. It has then, assuming that the compromise of 14th October 1925, was a good one, held that the vendees who have actually parted with Rs. 4,000 and retained only the share in mahal Katwaru, are entitled to recover that amount from the plaintiffs.
7. It seems to us that the finding that the gift was voidable at the instance of the son of Baij Nath cannot be disturbed in second appeal. The gift having been set aside, the plea based on it must also lose its force. It is not also possible to interfere with the finding that the two transactions of the same date in favour of the same family made by the same parson were not part and parcel of one and the same transaction, two documents instead of one having been used to handicap the pre-emptor. We must accept the finding that the real intention of the parties was to sell the share in mahal Katwaru to the defendants.
8. The only point urged on behalf of the plaintiffs which remains for consideration is whether a right of pre-emption exists in the case of the present vendee appellants.
9. Mauza Lohradih was originally a part of the family domain of His Highness the Maharaja of Benares. In 1911 it came under the direct administration of the Governor of the United Provinces. The Maharaja of Benares is now recognized as the zamindar of this village and is recorded as the superior proprietor malike ala in the khewat. The plaintiffs and the vendor were recorded as manzooridars and classed as inferior proprietors (malike adna).
10. In the wajibularz of 1247 Fasli prepared for this village there is an entry in para. 6, which records a right of preemption. It is immaterial to consider to what extent that right was limited or confined. The existence of such a Record-of-Rights raises the presumption under Section 5, Agra Pre-emption Act, that a right of pre-emption exists, and that right is to be exercised in accordance with the provisions of Section 11 and 12 of the Act.
11. If the interest transferred is a 'proprietary' interest within the meaning of Section 11, and the plaintiffs are co-sharers within the meaning of Section 12 as defined in Section 4, Sub-clause (1), the right to sue undoubtedly exists. The learned advocate for the appellants has argued that these sections have no application to a mere under-proprietor like the plaintiffs and the vendor.
12. Shortly before the wajibularz in question was prepared, Regulation No. 7 of 1828 was in force which defined the authority of the Raja of Benares within his territories. Para. 5 of that Regulation clearly shows that in making assessment of the land and the settlement of the villages, a selection had to be made of parties to engage who were designated as 'raees' and the tenures belonging to them were to be considered heritable and transferable, subject to the conditions in regard to the payment of the jama assessed upon them. In the absence of such 'raees,' the settlement might be made for a fixed period with farmers, unless the Raja should prefer making a ryotwari settlement, collecting the dues directly from the ryots. The word 'manzooridar' was presumably used because these persons were selected for purposes of the engagement for the payment of revenue. They were not mere tenants or ryots but possessed heritable and transferable rights in the lands. Payment of the revenue was also enjoined upon them.
13. Under the Pargana of Kaswar Raj Act (Act No. 1 of 1911 and Act 6 of 1915), the status of the Maharaja was altered, and although he became an independent Chief in his own territory, he was given the status of a zamindar or superior proprietor as regards the lands under the direct administration of the Governor of these provinces. In Section 4 of the latter Act an under-proprietor is defined as being a person possessing as against the proprietor a heritable and transferable right in land. An earlier Act, Act 3 of 1904 (Benares Family Domains Act), Section 2, Sub-clause (2), also provided that an inferior proprietor would include a manzooridar at least for the purposes of that Act.
14. The learned Munsif, who wrote out an excellent judgment, has correctly stated the position of manzooridar in the following words:
He is an under-proprietor. He is recorded in the khewat. He holds sir. Tenants under him have fixed rate tenancy and occupancy rights. The superior proprietor has nothing to do with the village except to receive a certain percentage of profits from the manzooridars. It is the manzooridar who lets out land and who brings suits against the tenants. The manzooridar is not recorded in the village papers as a tenant. He exercises all the proprietary rights except that he does not pay land-revenue to the Government.
15. There can be no doubt that the manzooridars possess a proprietary interest in the lands held by them. They are under-proprietors or inferior proprietors.
16. The main question for consideration before us is whether such an inferior proprietor is a proprietor within the meaning of that word as used in Section 4, Sub-clause. (1). There a co-sharer is defined as a person other than a petty proprietor entitled as proprietor to any share or part in a mahal 'or village. Although inferior proprietary interests are not common in the Agra province, they do exist in some parts.S. 76, Land Revenue Act, contemplates the existence of such inferior proprietary right and provides how a sub-settlement can be made with them. Obviously, therefore, a proprietor may either be a superior or an inferior proprietor. There is no reason to suppose that the word 'proprietor' in Section 4, Pre-emption Act is not used in that general sense so as to include both a superior proprietor and an inferior proprietor. It, therefore, follows that even if an inferior proprietary interest in land has been transferred, Section 11 would be applicable, and therefore, persons in Section 12 would have the right to pre-empt.
17. In the present case the plaintiffs are inferior proprietors in village Lohradih and come within Clause (5). The vendees are perfect strangers to the village. The right of pre-emption, therefore, undoubtedly exists.
18. The plaintiffs have filed a cross-objection urging that they should be called upon to pay only a proportionate amount of the consideration, as a share in one mahal has been returned to the vendor. The Courts below, however, seem to have found that the original sale-deed was not a complete transfer and that the suit brought to set it aside on the ground of misrepresentation and fraud was not a collusive one, and the compromise in that suit was entered into in good faith by the parties to the transaction. This happened before the present suits for pre-emption were instituted. The ultimate result was that the vendees retained the share in mahal Katwaru only and had parted with Rs. 4,000. Having regard to these circumstances, the courts below have come to the conclusion that the real and effective transaction, which should be preempted, is the transfer of this five anna four pies share in mahal Katwaru for a sum of Rs. 4,000.
19. Having regard to the peculiar circumstances of the case, and the findings which have been arrived at by the Courts below, we do not think that we can interfere.
20. The result, therefore, is that all these appeals and the cross-objection are dismissed with costs including in this Court-fees on the higher scale.