1. This is a defendants' appeal arising out of a suit for pre-emption brought by the plaintiff Mt. Chameli Kuar, wife of Liladhar, in respect of the properties transferred under a sale deed (p. 57) dated 12th September 1932, for Rs. 35,000, executed by defendants 3 - 6 in favour of defendants 1 and 2. The properties sold consisted of 7 pies out of 20 biswas in mahal Lakhi, Chak Ehtamali and Chak Mustaqil, of village Nagaria Fatehpur, as well as shares in another village Rampura Naogawan, with which we are not now concerned in appeal. The plaintiff claimed to be a co-sharer and alleged that the defendants vendees had been strangers to the mahal. The claim was contested on the main ground that the plaintiff was not a co-sharer in this mahal, but was a petty proprietor and as such was not entitled to claim the preemption. There were some other pleas also which have not been seriously pressed. In particular, there was a plea that the plaintiff's allegation that the proportionate value of the property sought to be preempted was Rs. 14,000 was not correct. The Court below has decided all these points in favour of the plaintiff and has decreed the claim for pre-emption of the properties in suit on payment of Rupees 14,000.
2. The only point that is now pressed before us in appeal is that the plaintiff has not proved that she is a co-sharer in this mahal. On 2nd May 1932 her husband Liladhar acquired a share in mabal Lakhi Chak Mustaqil, and Chak Ehtamali, of village Nagaria Fatehpur, and also a share in the other village. By virtue of this acquisition he undoubtedly became a co-sharer in these Chaks. On 7th July 1932, Liladhar executed a deed of gift (p. 6,1) of a 1/3rd share in 1 1/6 sihams out of 40 sihams of his zamindary property in village Nagaria Fatehpur, mahal Lakhi, Chak Ehtamali, in favour of his wife Mt. Chameli Kuar, the present plaintiff. This document was duly registered and mutation of names was effected in favour of Mt. Chameli Kuar and her name was duly entered in the khewat (p. 91). The learned Counsel for the appellants has to concede that assuming the finding of the Court below that this deed was not fictitious to be correct, Mt. Chameli Kuar undoubtedly became a co-sharer in this village. His contention that she has ceased to be a co-sharer is based on a partition which took place subsequently.
3. After the execution of the sale deed on 12th September 1932 (which is in dispute in this case), a deed of partition dated 7th June 1933 (p. 67) was executed between the co-sharers of these two villages. The first party was comprised of Liladhar and his wife Mt. Chameli Kuar as well as his brother Ram Ratan Lal and his wife Mt. Ganga Dei and also Mt. Sundar Kuar, the mother of Liladhar, and also Ram Chandra Lal, his maternal uncle. The second party consisted of Prahlad Prasad and Sahu Banwari Lal. Under this agreement the parties agreed to divide up the plots constituting the mahals into two lots, one allotted to the first party and the second allotted to the second party. The first lot which was given to the first party consisted of 23 plots in mauza Nagaria Fatehpur, mahal Lakhi, Chak Mustaqil, and two plots in Chak Ehtamali as also 22 plots in the other village. The entire remaining shares in the two villages were allotted to the second party. Now Mt. Chameli Kuar, under the gift of her husband, had acquired a share in Chak Ehtamali only, out of which Chak only two plots, 411 and 412, measuring in all 15 bighas 11 biswas, were allotted to the first party. Thus Liladhar, Mt. Chameli Kuar and the other co-sharers of this first party got shares jointly in these two plots with an area of 15 bighas 11 biswas. They got nothing else in this Chak. Mt. Chameli Kuar in particular got nothing in Chak Mustaqil and got only a fractional share in these two plots in Chak Ehtamali. The deed of partition further provided that these two lots should be formed into two separate pattis with separate assessments of revenues and that neither party should have any concern with the patti given to the other party, and that each should get entries made in the khewats of all the three mahals in accordance with this private partition. A clause was also added protecting the rights of the parties as regards the claims of pre-emption in the following words:
This deed of partition on the contents of the former deed of agreement shall have no effect on the pre-emption rights of one or all of the first party, which they might have as against the second party (which the second party do not admit).
4. Thus this partition was effected as a temporary arrangement without prejudice to any claim of pre-emption which the first party might bring against the Second party. There is no doubt that an application to the revenue Court must have been made on the basis of this deed of partition subsequently although neither party chose to produce it. We however find that the private partition was given effect to in the khewat for 1341 Fasli, a copy of which is on the record. According to this khewat, mahal Lakhi was subdivided into two pattis numbered as 1 and 2, the first being called patti Banwari Lal under the lambardarship of Sahu Prahlad Prasad and the Second called patti Liladhar under the lambardarship of Liladhar. The share assigned to the second, patti was 15 biswansis 2 kachwansis and odd out of 20 biswas and the area of this patti was 15 bighas 11 biswas. It is to be noted that this is the exact area of the two plots 411 and 412 which had been agreed upon to form a separate patti. Among the co-sharers entered in this khewat against Patti No. 2 are Liladhar, Mt. Chameli and the others. Mt. Chameli in particular was given 7/18 sihams out of 40 Bihams taken out of 12 biswas 10 biswansis. The-division of the mahal was in the following, way. The entire mahal consisted of 20 biswas out of which 7 biswas 10 biswansis as well as 37 7/12 sihams out of 40 sihams of the remaining 12 biswas and 10 biswansis were allotted to the first party and put in the first patti, and the remaining share, namely, 2 5/12 sihams out of 40 sihams in 12 biswas 10 biswansis, was allotted to the second party and put in the Second patti. Out of these 2 5/12 sihams in 12 biswas 10 biswansis, Mt. Chameli Kuar got 7/18 sihams only. As the khewat stands, it would show prima facie that Mt. Chameli Kuar is & co-sharer in this second patti, and therefore a co-sharer in the entire mahal and is entitled to the right of pre-emption. Mt. Chameli Kuar when cross-examined made certain admissions on which great reliance is placed by the learned advocate for the appellants. In the examination, in-chief she had said that she was the landlady of the mahal of which the suit for pre-emption was filed. In cross-examination she said:
I own only two fields in village Nagaria. Besides these I do not own any other thing in Nagaria. I have no concern with the intizam (administration and management) of village Nagaria except these two fields. These fields are under the cultivation of the tenants.... The management of village Nagaria is done by my husband. I sever interfered in his management of village Nagaria.
5. The learned Counsel on the strength of this admission contends that Mt. Chmeli Kuar is entitled to two plots only in this village and she does not own anything else in the village, and certainly nothing in the joint lands of the village, and further that she has no concern with the administration of the village Nagaria and her interest is confined to these two fields only. It is, therefore, argued that she comes under the definition of a 'petty proprietor' given in Section 4(7), Agra Pre-emption Act, inasmuch as she is the proprietor of two specific plots of land in the mahal, and as such is not entitled to any interest in the joint lands of the mahal or to take part in the administration of its affairs. Great reliance is placed on the recent ruling of their Lordships of the Privy Council in Ramajimal v. Riaz-ud-din . In that case one Qadir Shah had as a result of union of mahals become the proprietor of Bed mahal. He exeouted several sale deeds under which specified areas in this mahal were transferred. In 1922-24 there was a fresh partition and the Red mahal was divided into three mahals called Yellow, Green and Blue. The entries in the later khewat of 1932 F. corresponding to 1925, in which year the sale deed sought to be pre-empted was executed, were as follows:
patti or Serial No. Amount Area Revenue and Names of sharers with parentage,
both and of of of casses of caste, residence and amount of share
name share. share. share. share. held by each.
Zahur 1. 20 bis 186.22 Rs. As.P. Zahur Husain, son of Imam-
Husain was. acres. 965-3-0 ud-din, sect Shaikh; Mustajab- 1137
Lambar- Cesses ud-din, son of Wilayat Khan, bighas
dar. 45-8-3 Pathan, in equal shares, own and 17
sisters's sons of Qadir Shah, biswas.
resident of Dera Sarai city
Sambhal, bearing a jama of
Riaz-ud-din minor son of Amin-
ud-din under the guardian- 38
ship of his own father, Amin- bighas
ud-din, Shaikh, resident of and 14
Deora, pargana Asadpur, Tah- biswas.
sil Gunnaur, District Budaun,
bearing a jama of Rs. 16-1-0.
Bhupal Rai, son of Parshadi
Lal, caste Vaish Baranwal- 12
12 bighas and 13 biswas, 1.99 bighas
acres; jama Rs. 5; number of and 13
fields 291/1, 292, 289/1 and biswas.
Babu Ram, son of Narain Das,
Mt. Kunwari, daughter of
Bhupal Rai, and wife of
Kanhaiya Lal, caste Vaish
Baranwal, resident of the
village, in equal shares - 3.47
acres, jama Rs. 1-2-0.
Total 1192. 4.
6. It may be noted that Zahur Husain was the vendor in that case and Riaz-ud-din was the plaintiff. The trial Court had said that Riaz-ud-din was only a plot proprietor. The High Court relying on this khewat considered that Riaz-ud-din was on the same footing as the vendor Zahur Husain, and both were co-sharers. Their Lordships overruling the view of the High Court accepted the view of the trial Court. It is urged that the burden of proving that the plaintiff is a co-sharer lies heavily on her. This proposition cannot be disputed. It is next urged that no reliance should be placed on the entries in the khewat in preference to the plaintiff's own admission, because the entries in the khewat in that case were not relied on by their Lordships of the Privy Council, and our attention is drawn to the remark on p. 977 that there was not a scrap of evidence to discharge that onus. In the face of Section 44, Land Revenue Act, we are doubtful whether their Lordships could have meant to say that entries in a khewat were no evidence at all, specially there seems to be perhaps some reference to that very khewat lower down on the same page where their Lordships pointed out that the liability to pay Rs. 16-1-0 as revenue was entered in the revenue record. Presumably their Lordships meant to hold that the entries in the khewat as they stood did not amount to any evidence of the fact that the plaintiff in that suit was a co-sharer. It is also urged that in that case their Lordships laid great stress on the fact that there was a separate revenue amounting to Rs. 16-1-0 assessed on the property of the plaintiff, Riaz-ud-din, and it is contended that there is no proof that there is any joint liability of Mt. Chameli with the co-sharers in Patti No. 1 for the payment of the revenue of this mahal, and stress is laid on the remark of their Lordships on the same page that the plaintiff there has neither alleged nor proved that his liability extends beyond the payment of the revenue which is assessed upon his holding.
7. As regards the joint liability for the payment of the revenue of the mahal in the present case, we need only refer to Section 141, Land Revenue Act, under which in the case of every mahal the revenue assessed thereon shall be the first charge on the entire mahal and on the rents, profits and produce thereof. As laid down in Section 106, Land Revenue Act, so long as there has not been a complete partition of the mahal, the joint liability for the entire revenue remains, and in an imperfect partition the revenue assessed separately on the separate pattis is for the convenience and to determine the respective liabilities inter se of the co-sharers.
8. It is next urged that in the case before their Lordships also the plaintiff was recorded as owner of 38 bighas, 14 biswas (in one out of four mahals) which represented the entire 20 biswas of the share at serial No. 1 assessed to the total revenue of Rs. 465-3-0 with cesses, and that in respect of it, the sub-division of the revenue was a point made against the plaintiff. In this case there is no separate sub-division of the revenue assessed on the share of Mt. Chameli alone. We are therefore of the opinion that there is nothing in the case of Ramji Mal v. Riaz-ud-din which would compel us to hold that in this particular case also the plaintiff is not a co-sharer in the mahal but is merely a petty proprietor. We do not think that the entries in the khewat are inadmissible in evidence for the purpose of showing that she is a co-sharer. No doubt the real test laid down by the Legislature in Section 4(7) is whether the proprietor of a specific plot of land in a mahal is or is not also entitled to an interest in the joint lands of the mahal or to take part in the administration of its affairs, and it is not expressly laid down that he should also have the joint liability for the payment of the revenue. But in order to see whether there is a right to take part in the administration of the affairs of the mahal it may be necessary to find out whether there is a joint liability for the payment of the revenue of the mahal. If the proprietor is a co-sharer within the meaning of the Land Revenue Act, that is the holder of a share in the khalsa lands of the mahal, then as such he would certainly be entitled to take part in the administration of the affairs of the mahal and would accordingly fulfil one of the requirements of the definition. In that sense the joint liability for the payment of revenue would be a very material consideration. In the present case there is one more circumstance in favour of the plaintiff, namely, that Patti No. 2 is put on the same footing as Patti No. 1 in this khewat and her husband is appointed lambarbar of this patti. One would not expect a lambardar in the case of miscellaneous plots which are kept separate from the khalsa lands. The admission made by the plaintiff that she had no concern with the intizam or management of the village, except the two fields, was obviously intended to concede that her husband being the lambardar of the patti was managing the patti on behalf of all the co-sharers of the patti and that she herself had no direct hand in the administration of the village. We cannot take that admission to mean that in law she is not entitled to take part in the administration of the affairs of this patti, for example, the appointment of the lambardar of that patti. Of course the management must continue to be done by foe lambardar who in this case happened to be her own husband and she could not interfere directly with the management of the lambardar. We are accordingly of the opinion that the view taken by the learned Subordinate Judge that the plaintiff has succeeded in establishing that she is a co-sharer in this mahal is correct and must be accepted. The finding as regards the proportionate value of the property sought to be pre-empted has not been challenged before us and must also be accepted. There is no force in the other pleas as regards refusal etc., which have not been pressed. The appeal is dismissed with costs.