Arthur Strachey, C.J.
1. This case raises a question similar to that considered by this Full Bench in Dalganjan Singh v. Kalka Singh Weekly Notes, 1899, p. 111. It relates to the effect of a perfect partition upon the right of preemption recorded in the wajib-ul-arz of an undivided mahal, where no new wajib-ul-arz has been framed for the new mahals created by the partition. The village Rajora originally consisted of several thokes, one of which was shown as 'thoke Ishar Das.' That thoke was an undivided 3 biswas 16 biswansis 10 kachwansis share of the village. The wajib-ul-arz prepared at the last settlement contained a chapter, headed 'Chapter II, about the right of co-sharers (hissadars) among themselves based on custom or covenant.' Clause 4 was as follows:--' Custom (dastur) relating to pre-emption (shafa)--If any co-sharer (hissadar) wishes to transfer his share (hissa), then, having regard to the right of pre-emption, he should transfer his estate (haqiyat), that is, the claim to pre-emption shall accrue to, first, own brothers and brothers' sons, next to cousins, next to co-owners in the parcel sold (sharik-i-haqiyat), after them to co-sharers in the patti (sharkian patti), after them to co-sharers in the thoke (sharkian thoke).
2. In February 1895 the defendants Nos. 3 to 5 sold a share in thoke Ishar Das to the defendant-appellant Janki Prasad, a stranger to the village. The plaintiff-respondent was at that time a co-sharer with the vendors in thoke Ishar Das. At the time of the sale, proceedings for perfect partition of the village had been commenced and were still pending. After the sale the perfect partition was completed, and it became operative on the 1st July 1895, when the sanction of the Collector was given. By the partition thoke Ishar Das was divided into several separate hahals. The property sold fell within one of the mahals shown as mahal Ganga Prasad. In that mahal neither the plaintiff nor the vendees owned any share. No new wajib-ul-arz was framed for any of the new mahals. The present suit for pre-emption was brought in 1896. It was based on the pre-emption clause of the old wajib-ul-arz. In this appeal two questions have been discussed. The first is whether, after the perfect partition, the plaintiff was still entitled to pre-emption under the old wajib-ul-arz. The second is, whether it makes any difference that the sale took place before the completion of the partition: in other words, whether, granting that the plaintiff at the time of the sale obtained a good cause of action, he was deprived of it by the completion of the partition before the institution of the suit.
3. The principles upon which the first question must be decided have been fully considered in Dalganjan Singh v. Kalka Singh Weekly Notes, 1899, p. 111. The wajtb-ul-arz was not in my opinion abrogated by the perfect partition. The question is whether, upon the true construction of its provisions, the plaintiff is entitled to pre-emption. The pre-emption clause gives the right (1) to certain relatives of the vendor, (2) to sharik-i-haqiyat or co-owners in the parcel sold, (3) to co-sharers in the patti, (4) to co-sharers in the thoke. 'Co-sharers in the thoke' means co-sharers in the thoke which contains the property sold. No right is given to co-sharers in any other thoke or in any part of the village other than the thoke in which the vendor is a co-sharer. The plaintiff claims as one of this fourth class of pre-emptors, as a co-sharer in thoke Ishar Das. If he is a member of that class he is entitled to pre-emption (sic) is not his claim must fail. Th9 effect of the perfect partition was to destroy the thokes into which the village Rajora had been divided, and thoke Ishar Das had, at the date when the suit was brought, ceased to exist. Neither the plaintiff nor any one else has, since the partition, been a co-sharer in thoke Ishar Das, and no one, therefore, can now claim pre-emption as a member of the fourth class of pre-emptors mentioned in the wajib-ul-arz. That disposes of the first question.
4. Next, does it make any difference that, at the date of the sale, though not at the date of the suit, thoke Ishar Das still existed, and that the plaintiff could, before the partition, have successfully sued for pre-emption as one of the co-sharers in the thoke? In my opinion, it makes none. No case exactly in point has been cited, but the principle appears to me to be clear. To maintain a suit for pre-emption, the plaintiff must, I think show not only that the sale gave him a cause of action, but that the cause of action still subsisted at the date of the institution of the suit. It is not necessary to consider what would have been the effect of the partition if it had been completed after the institution of the suit but before decree. To hold that the plaintiff is entitled to a decree if he merely proves that he had a right of pre-emption and a good cause of action at the time of sale, and that it is unnecessary to show that the right and the cause of action still subsisted when the suit was brought, should result in all sorts of anomalies. Suppose, for instance, that the plaintiff, after the sale, ceased to be a co-sharer in the thoke, not by reason of a partition but in any other way, such as by selling his share, could he still sue as a co-sharer? The learned pleader for the respondent admitted that he could not, but suggested that in such a case there would be a waiver or relinquishment of the right by the pre-emptor's voluntary act. But suppose that the sale was not a voluntary one: suppose that it was in execution of a decree against him? The learned pleader could suggest no answer to that question. Again, suppose that, after the sale, the vendee sold the property to a co-sharer having an equal right with the plaintiff to pre-emption under the wajib-ul-arz. Gould the plaintiff deprive the new purchaser of the benefit of his purchase, although the rights of the two were equal? In Serh Mal v. Hukam Singh (1897) I.L.R. 20 All. 100, that question was aswered in the negative. The argument that 'at the moment when the sale to the stranger was made, the plaintiffs obtained their cause of action,' was not allowed to prevail.
5. For these reasons I am of opinion that the suit ought to have been dismissed by the Courts below, and that we ought to allow the defendants' second appeal and dismiss the suit with costs in all Courts.
Knox, Banerji, Burkitt and Aikman, JJ.