John Edge, Kt., C.J. and Blennerhassett, J.
1. This was a suit for pre-emption of a share in a village brought on a clause in the wajib-ul-arz providing for preemption in case of mortgages or sales of shares by co-sharers. The first Court dismissed the plaintiff's suit on the ground that on a previous occasion he himself had mortgaged his share in the village to a stranger. The Lower Appellate Court, accepting that view of the law, dismissed the appeal. The plaintiff has brought this appeal.
2. It so happens that on the previous occasion when the plaintiff himself mortgaged to a stranger no co-sharer in the village chimed pre-emption. No wajib-ul-arz which we have ever seen has contained a clause absolutely and in all events prohibiting a co-sharer from selling or mortgaging to a stranger. Such a clause would be unreasonable and bad in law. It would be against public policy. What is provided by such clauses is that a co-sharer shall have a right to take the mortgage or to by in preference to a stranger; and that is a perfectly reasonable custom or contract as the case may be. There is nothing to show, in that view of the law, that on the previous occasion the plaintiff acted contrary to the provisions of the wajib-ul-arz, for there is nothing to show that any co-sharer desired to take the mortgage. Even if the plaintiff had on a previous occasion acted in violation of the provisions of the wajib-ul-arz as to pre-emption, we should hesitate before deciding that such previous contravention of the provisions of the wajib-ul-arz deprived him of all right to claim pre-emption in case of a mortgage or sale of another share by another co-sharer in the village. We are disposed to think that the decision in Gokul Chand v. Ram Prasad Weekly Notes 1889 p. 127, was right. It must not be assumed from what we have said that we throw any doubt on the correctness of the decision in Rajjo v. Lalman I.L.R. 5 All. 180, with the decision in which case on the facts there before the Court we agree. We allow this appeal, and, setting aside the decrees of the Court below and the first Court, we remand this case under Section 562 of the Code of Civil Procedure to the Court of First Instance to be disposed of on the merits. Costs here and hitherto will abide the result.