W. Comer Petheram, C.J.
1. I have arrived at the conclusion that this appeal must be allowed, and I have done so with some difficulty. The facts, as I understand them, are as follows: Some years ago a village was divided into shares, which were held by joint owners, and the original shares were two annas eight pies each. One of the shares belonged to two men jointly, and they, requiring money, mortgaged one-half of the share to the plaintiff in the present suit, and the other half to the defendant. The mortgagors continued in possession of the whole share, and accounted for interest to both mortgagees. This state of things continued till 1875, and in that year the plaintiff foreclosed his mortgage, and bought his half share, and obtained physical possession of it, remaining in physical possession as owner from that time. The other mortgagee remained out of possession until 1882, so that from 1875 to 1882 the possession was that of the plaintiff as owner of one-half of the share, and of the mortgagors of the other half, they being joint owners of that share. In 1882 the defendant foreclosed his mortgage, and obtained possession of the other half share! Upon this state of things the plaintiff says: 'I want to buy this share because I am a nearer co-sharer than you are in respect of it, and I am therefore entitled to claim pre-emption.' Now, prior to the second foreclosure, the present defendant was not owner of the share; the ownership was in the mortgagors; and therefore, in regard to that share, the owners from 1875 to 1882 were the plaintiff and the mortgagors. During that time therefore they were the only co-sharers, and it follows that the plaintiff must be regarded as a nearer co-sharer than the defendant. This seems to me to be the only reasonable sense which we can attach to the term co-sharer, for although there were other co-sharers in the village, these two alone were interested in this particular share. I think, therefore, that we must hold that the plaintiff, as the nearest co-sharer, is entitled to claim pre-emption; unless, indeed, it can be shown that his claim is too late.
2. Now, if the right of pre-emption which arose upon the sale was a new one, the claim will not be barred; but it will be, if the right which then existed was the same as that which arose at the time of the mortgage. It appears to me that it was a new right, because the wajib-ul-arz distinctly contemplates the right of pre-emption arising upon the different events, namely, upon the mortgage and sale. The point as to 'standing by' depends on the same question. If the mortgage and the sale gave rise to distinct rights of preemption, the alleged standing by occurred when the right was not in existence. I am therefore of opinion that the claim is not barred. The appeal must be allowed with costs, and the judgment of the first Court restored, with this exception, that the money declared by the decree of that Court to be payable by the pre-emptor must be directed to be paid within six weeks from the date of the receipt of our decree by the lower Court.
3. I am of the same opinion.