Arthur Strachey, C.J.
1. This appeal raises a question which has been discussed in many previous decisions of this Court, the effect of a perfect partition of a mahal under the North-Western Provinces Land Revenue Act, 1873, upon claims for pre-emption based on a custom recorded in the wajib-ul-arz, where non ew wajib-ul-arz for any of the new mahals has been framed at or since the partition. The present suit for pre-emption is based on the wajib-ul-arz of a village, Serai Sitam, in the Jaunpur district. The sale which it seeks to avoid was a sale of 7 bighas of land in that village, and was made on the 29th September 1896. The wajib-ul-arz was framed at the last settlement in 1880-81. The part of it relating to pre-emption is contained in chapter 11, which is headed 'As to the rights of co-sharers among themselves based on custom or agreement.' Section 13 of the chapter is headed 'As to the custom of right of pre-emption.' In regard to the precise English equivalents of some of the expressions used in the pre-emption clause, there has been some dispute. The following is a translation of the clause, leaving the disputed terms as they stand in the original:
If any hissadar wishes to transfer his share (hissa), first he will transfer it to his own brother, then to his near relatives, thirdly to owners in the village who are partners in the same khata (malikan sharik khata), fourthly to the hissadaran deh: if none of these purchase, then he is competent to transfer it to anyone he likes.
2. The plaintiff claims pre-emption as one of the fourth class of pre-emptors mentioned in the clause, the hissadaran deh. The defendant vendee is admittedly a stranger to the village. It is not disputed that until 1888 or 1889 the plaintiff would have been entitled to pre-emption under the wajib-ul-arz as a hissadar deh in respect of such a sale as that of the 29th September 1896. Up to that time the village Serai Sitam formed a single mahal, of which both the plaintiff and the defendant vendor were co-sharers. But in 1888 or 1889 the mahal was divided by a perfect partition into three separate mahals. The plaintiff is a co-sharer in one of the new mahals : the property in suit is situate in another, in which he is not a co-sharer. No new wajib-ul-arz has been framed for any of the new mahals. The suit is based upon the custom of pre-emption alleged by the plaintiff to prevail in the village Serai Sitam, and upon the status of the plaintiff as a hissadar of the village within the meaning of the wajib-ul-arz. The principal defence was that no such custom existed, and that upon the partition of Serai Sitam the pre-emption clause of the wajib-ul-arz of 1880-81 ceased to have effect. No evidence of the custom except the wajib-ul-arz was produced. Upon that document the Courts below decided that the custom was proved, and that the plaintiff was entitled to preemption in accordance with the wajib-ul-arz, notwithstanding the partition, On appeal by the defendants to this Court, Mr. Justice Blair stated the question involved as 'whether the wajib-ul-arz of a mahal before partition applies to each part which is partitioned off into a separate mahal' and said that there had been of late years a cursus curiae according to which many, if not all, of the Judges of this Court had held in principle 'that the old wajib-ul-arz disappears with the legal entity to which it applied.' He accordingly set aside the decree of the Court below and dismissed the suit, and in this appeal under the Letters Patent we have to say whether his decision was right.
3. It appears to me to be incorrect to say that, upon a perfect partition of a mahal, the wajib-ul-arz necessarily 'disappears' or ceases to exist. There is no such general rule of law. The wajib-ul-arz forms part of the record-of-rights which the settlement officer has to frame for each mahal under Section 62 of the Land Revenue Act. It is true that both that section and Section 3 (1) speak of this document as the record-of-rights for the mahal, and this suggests that when the mahal is destroyed by perfect partition the record-of-rights becomes inoperative. But Section 191 provides that 'in all cases the existing record-of-rights shall remain in force until a new record-of-rights is framed.' It was held by this Court in Kedar Nath v. Rum Dial (1893) I.L.R. 15 All. 410, that the Collector had an implied power, upon the partition of a mahal, to frame a new record-of-rights for each of the new mahala so constituted. It was further held in Abdul Hai v. Nam Singh (1897) I.L.R. 20 All. 29, that it was the duty of the Collector or Assistant Collector to do so. Where, that is done, the old wajib-ul-arz is, of course, superseded. But it is often not done and, in the absence of any such new wajib-ul-arz, the old wajib-ul-arz remains in force except so far as its provisions are inconsistent with the state of things which the partition has created. That was expressly held to be 'clear law' by Mr, Justice Blair in Mithu Lal v. Muhammad Ahmad Said Khan (1898) Weekly Notes, 1899, p. 19, Then, if the wajib-ul-arz as a whole is not necessarily abrogated by a perfect partition, is there any more ground for holding that the pre-emption clause of it is so abrogated? In the case just referred to, Mr. Justice Aikman said that he could not draw the conclusion that the custom of pre-emption recorded in the old wajib-ul-arz had fallen into abeyance from the fact that the officer who carried out the partition omitted to prepare a new wajib-ul-arz. If the custom may still be in force, the wajib-ul-arz is still good evidence of it. Some of the decisions cited to us appear to lay down a general rule of law that, after a perfect partition, no claim for pre-emption can be successfully made on the basis of the old wajib-ul-arz. Others, going to the opposite extreme, appear to regard partition as a purely fiscal arrangement concerned exclusively with the collection of the Government revenue, and having no possible bearing upon any contract or custom of pre-emption. Both views appear to me equally open to the objection that they treat as an abstract question of law what is really a question of the construction of a particular contract or the interpretation and application of a particular custom. In many of the cases the terms of the particular pre-emption clause upon which the decision properly depended are not even referred to. This mistaken way of looking at the subject appears to me to account for much of the conflict of authority which undoubtedly exists. The pre-emption clause of a wajib-ul-arz may constitute either a contract of the co-sharers or the record of a custom found by the settlement officer to prevail among them. In all that follows, I assume that there is no evidence of any intention on the part of the co-sharers at the time of partition to put an end to the contract or the custom. Upon that supposition, where the clause constitutes a contract, the question whether or how far it is applicable after a perfect partition is one of the proper construction of its terms. In other words, the question is whether the intention of the parties as expressed in the clause was that the right of pre-emption should exist only so long as the village remained a single mahal, of which they were the co-sharers, or that it should be wholly unaffected by the destruction of the mahal and the severance of that co-parcenary bond, or that it should be claimable after partition by those only who continued to be co-sharers in any of the separate mahals. If the contract unmistakeably confined the right to the existing co-parcenary body, there can be no doubt that it would not survive the partition. If it contained this express covenant--' no person hereby entitled to pre-emption shall be deprived of his right by any perfect partition of the mahal'--it would be difficult to contend that partition would affect the right. If it expressly provided that all who were still co-sharers should have the right notwithstanding any perfect partition, then those who continued to be co-sharers in any of the new mahals, but no others, would have a good claim. If, in any of these three cases, the terms used were less clear, the question would still be whether the same intention was to be inferred from them. Again, where the clause does not constitute a contract but records a custom, the question is stil1 one of its true meaning, though in this case, considering that the wording of the clause is often the composition of some ignorant subordinate whose accuracy cannot be assumed, the only safe course is to look to the substance of the thing, and not to attach undue weight to the particular expressions used. The question is whether the custom is one which necessarily presupposes the continuance of the co-parcenary body existing at the time when the clause was framed. If the custom recorded is one by which the right of pre-emption is confined to co-sharers of the then existing mahal then it appears to me that it can no more exist in favour of others after the mahal and that particular co-parcenary body have been destroyed by perfect partition than any other custom can continue after the class among which it has always prevailed has perished. On the other hand, it is possible to imagine a custom of pre-emption which does not depend upon the continued existence of the undivided mahal and its co-parcenary body. A custom in favour of the brothers, or other near relatives of the vendor, might be an instance. Again, when a settlement officer records a custom of pre emntion in the wajib-ul-arz of a new mahal created by perfect partition of an old one what is that custom? It cannot be something absolutely new, or the word custom would be a misnomer. It must therefore he something which existed before the new mahal and before the partition, something therefore which existed in the time of the old mahal, which has survived the partition and which is recognized as still applicable within the new mahal. In one of the cases cited to us, and no doubt in a great many other cases, the settlement officer simply copied verbatim in the new wajib-ul-arz the pre-emption clause of the old one This implies that the old custom thus continued is regard d as a custom of the co-sharers, still applicable to all who, not with standing the partition, stand in the relation of co-sharers, not a custom necessarily confined to co-sharers while members of the co-parcenary body of the old undivided mahal. For these reasons the decisions which treat the question of the effect of a perfect partition upon the pre-emption clause as capable of an absolute and invariable answer appear to me to be based upon a wrong principle.
4. At the same time, it would be a mistake to conclude that in deciding whether a contract or a custom of pre-emption recorded in the wajib-ul-arz is applicable after a perfect partition, no general considerations are of any value In every case we must place ourselves as nearly as possible in the position of the parties and have regard to the surrounding circumstances. In particular one must remember what is the nature of the co-parcenary body in an undivided mahal, the nature of the wajib-ul-arz prepared by the settlement officer the meaning and object of pre-emption, and the meaning and object of perfect partition. The most essential feature of the co-parcenary body is the joint and several responsibility of the co-sharers for the payment of the Government revenue assessed on the mahal coupled in cases of zamindari tenure with the holding and management of the whole of the lands of the mahal by all he co-sharers m common It is for the mahal, for the 'local area held under a separate engagement for the payment of the land revenue,' not for a village or other loca area not being a mahal, that the settlement officer frames the waiib-ul-arz. It is meant as a record of the contracts or the customs of the co-sharers of the mahal. This being its object, it is prima facie unlikely to include any contract or custom which is absolutely independent of the continuance of the mahal as a fiscal and proprietary unit or of the co-parcenary body for which it is framed. Next, what is pre-emption? It is a right very closely connected with the objects of the co-parcenary system. Its essential purpose is the exclusion of strangers and the maintenance of the existing proprietary body throughout all changes of ownership. It thus primd facie implies that the co-parceners desire to preserve and not to destroy their mutual connection, and is prima facie inapplicable after that connection has been severed by a perfect partition. Lastly, what is a perfect partition? It is defined by Section 107 of the Act as 'the division of a mahal into two or more mahals.' Its object is the exact opposite of the object of pre-emption: it is to completely break up the connection hitherto existing between the co-sharers; to put an end to their joint and several responsibility for payment of Government revenue; to destroy altogether the distinction between them and strangers. Sometimes partition is effected in order to get rid of a quarrelsome or litigious co-sharer who seeks to take more than the others consider him entitled to: Ghure v. Man Singh (1895) I.L.R. 17 All. 226, at p. 238, Mithu Lal v. Muhammad Ahmad Said Khan (1898) Weakly Notes, 1899, at p. 21. Sometimes it is because some of the co-sharers 'do not pay their quota of the Government revenue regularly, thereby bringing liability for their arrears upon all the co-sharers of the mahal:' Abdul Hai v. Nain Singh (1897) I.L.R. 20 All. at p. 94. Whatever the reason, the co-sharers can no longer get on comfortably together, and partition is the process which enables them to separate. It is therefore primd facie unlikely that, in the case of a contract, the co-sharers should intend that pre-emption, which implies the distinction between the co-parceners and outsiders, should continue after a partition by which that distinction is abolished. It is also unlikely, as pointed out by Mr. Justice Knox in Ghure v. Man Singh, that a custom 'recorded at a time when the village bore its natural and, from a Hindu point of view, proper form of an undivided, village and an undivided mahal,' would be applicable 'when the relations of persons and property then subsisting had undergone such a radical change as necessarily ensues when perfect partition takes place.' I agree with him that it would require 'strong proof to establish that a custom which regulated and provided for one set of circumstances still regulates and provides when these circumstances have been wholly altered.' I also agree with the learned Judges who decided Abdul Hai v. Nain Singh that 'it would require very strong evidence to satisfy us that after shareholders in a mahal have applied for and obtained partition and consequent separation of their interest from other shareholders in the mahal, they intended that the other co-sharers from whom they had separated their interest should be entitled to come in and pre-empt in the new mahal, and become again their co-sharers.' Some of these considerations obviously do not apply where the right is claimed after partition by persons who, having been co-sharers in the undivided mahal, are still co-sharers with the vendor in one of the separate mahals. Partition has not, as regards them, made so radical a change, they are as closely united as before, though by a new bond; there is still the distinction between them and strangers which it is the object of pre-emption to preserve. The inference which 1 draw is that while it depends in every case on the particular circumstances and especially upon the terms of the particular wajib-ul-arz, whether or how far pre-emption can be claimed under it after a perfect partition, there is a strong presumption against such a claim when made by persons who are no longer co-sharers of the vendors. Where the language of the wajib-ul-arz is ambiguous, this presumption may be decisive.
5. The earliest case which was cited to us is Motee Sah v. Musummat Goklee S.D.A., N.-W.P. 1861, Vol. I, p. 506. The terms of the wajib-ul-arz are not stated in the report, and it does not appear whether the claim for pre-emption was based upon contract or upon custom. The judgment contains this passage:--'Now, an essential condition of the existence of a right of pre-emption is that the parties claiming such a right shall be co-parceners in the same estate as those against whom the claim is made, a relation between the parties which is extinguished by the very operation of partition and the separate proprietorship thereby established.' I infer that the wajib-ul-arz in that case confined the right of pre-emption to oo-parceners of the vendor, and that after the partition the plaintiff was not such a co-parcener in one of the new mahals. Upon that assumption the decision was no doubt right. If, however, the passage means that, whatever the terms of the wajib-ul-arz, no one can in any case successfully claim pre-emption who is not a co-parcener of the vendor, it is, in my opinion, too widely expressed. The unreported case of Abdullah Khan v. Halimunnissa F.A. No. 69 of 1882 is cited in Shiam Sunder v. Amanant Begam (1887) I.L.R. 9 All. 234, at p. 238, as laying down the rule that, despite the partition of a village into separate mahals, the existing wajib-ul-arz at the time of partition must be presumed to subsist and govern the separate mahals until it is shown that a new one has been made. No such proposition is to be found in any of the three judgments successively remanding the case, nor in the judgment finally disposing of the appeal. The precise terms of the preemption clause do not appear from the paper-book, but it was a contract giving the right to 'sharers' or 'owners.' The plaintiff's did not, after the partition, own any share in the new mahal in which the property sold was situate. The remand order of the 22nd April 1884, contained this passage:--'In our opinion the wajib-ul-arz, never having been withdrawn, is still binding, and the plaintiffs-appellants are entitled to come into Court to enforce its terms, if they can show themselves to be, and this is admitted that they are, co-sharers in the villages of Khushalpur and Majri.' As, however, the High Court apparently accepted the lower Court's finding on remand that the villages in question had not been partitioned in the manner and with the formalities required by the Land Revenue Act, I cannot regard that case as instructive. The next case is Gokal Singh v. Mannu Lal (1885) I.L.R. 7 All. 772, decided by Petheram, C.J., and Mahmood, J., in 1885. The pre-emption clause is not set out in the report, but apparently it contained a contract, and gave the right of pre-emption to persons described in the report as 'shareholders' or 'partners' in the 'village,' but in the Subordinate Judge's judgment as 'co-sharers' or 'co-parceners.' In the undivided village the two plaintiffs held a one-third share, and the vendor and another person one-third each. There was a perfect partition by which each one-third share was divided from the others and made a separate mahal. After the partition, therefore, the plaintiffs were still co-sharers, but no one was a co-sharer of the vendor, who was the sole proprietor of one of the separate mahals. The sale to which the suit related was of the whole of that mahal. The judgment of Petheram, C.J., appears to have been based, first on the use of the word 'village' as distinguished from 'mahal,' and secondly, on the view that the word 'shareholder,' 'partner' or the like would, notwithstanding the partition, still apply to persons 'living in' the village and sharing in the common use of roads, drains and other public things. This interpretation of the word shareholder as referring not to proprietary interest but to residence and participation in the use of roads and drains is very singular. Mahmood, J., whom the report represents as simply concurring with Petheram, C.J., delivered a separate written judgment, which appears to have escaped the Reporter's notice. He apparently held that the partition was not 'perfected' or complete so as to constitute the separate mahals until a new wajib-ul-arz had been framed for each divided portion of the original mahal. So far as I know, there is no other authority for that view. The learned Judge further held that the pre-emption clause of the old wajib-ul-arz, not having been superseded by any new covenant, was still in force. 'The mere apportionment of revenue and the disseverance of the liability to that revenue could not, ipso facto, defeat a covenant relating to pre-emption entered into by all the co-sharers for the time being, and which covenant ran as an incident of the tenure of the lands owned by them before such partition. In the second place, the terms of the pre-emption clause of the wajib-ul-arz speak not of the co-sharers of the mahal but of the village, and the distinction between these two terms seems to me sufficiently obvious, as explained by the learned Chief Justice.' It appears to me that the whole question was whether the plaintiffs, when they brought their suit, were co-sharers of the village within the meaning of the contract. That depended on whether the pre-emption clause meant by co-sharers of the village all persons owning shares within any part of the village area, or all whose shares were co-extensive with the whole of that area, or all who, whether in the whole or in part of the village, were co-sharers of the vendor. If it had the first meaning, then the plaintiffs, being co-sharers of one of the mahals into which the village was divided, were entitled to pre-emption, If it had the second meaning, neither the plaintiffs nor anyone else were entitled to pre-emption, for the class of co-sharers of the village in that sense ceased to exist when the partition was made. If it had the third meaning, the plaintiffs were not entitled to pre-emption, for they were not co-sharers of the vendor, who was the sole proprietor of his mahal. The next case is Jai Ram v. Mahabir Rai (1885) I.L.R. 7 All. 720. The terms of the wajib-ul-arz are not stated in the report. From the paper-book it appears that the pre-emption clause gave a right of preemption (apparently by custom) 'to brothers and sharers of the thoke, and if the thokewallah refuses, then to other shareholders. There was a partition by which one of the pattis of the mahal was divided from the rest and made a separate mahal. A new wajib-ul-arz was framed for the new mahal, giving a right of pre-emption to the co-sharers of that mahal, but not to the co-sharers of the pattis remaining with the original mahal. There was a sale of property, part of which was in the new mahal and part in the other pattis. A co-sharer in those pattis, but not in the new mahal, sued for pre-emption, excluding from the suit so much of the property sold as was situate in the new mahal. The defendant pleaded that, according to certain rulings of this Court, a suit for pre-emption could not be maintained in respect of part only of the property sold. The plea was overruled and the suit decreed, on the ground that as the suit included all the property sold which the plaintiff was entitled to pre-empt, the rulings referred to were inapplicable. Mahmood, J., held that the effect of the partition was to exclude property in the new mahal from the operation of the old wajib-ul-arz, and to place it under the new wajib-ul-arz which gave the plaintiff no right of pre-emption. Oldfield, J., without referring to the new wajib-ul-arz, held as to the old one that ''the condition as to pre-emption only affected the shareholders of the mahal so long as they remained shareholders, and ceased to have effect upon those shareholders and their property who separated themselves and their property by forming a separate mahal. The plaintiff could, after the separation, exercise no right of pre-emption against and in respect of shareholders and property so separated, nor could the separated shareholders exercise any right of pre-emption against the plaintiff and his property remaining in the mahal from which they had separated.' It is noticeable that no suggestion appears to have been made that the partition affected the plaintiff's right under the old wajib-ul-arz to pre-empt the property not situate in what was called 'the new mahal.' The judgments treat the partition not as destroying the 'old mahal'--that is, the undivided mahal--but as merely detaching from it and converting into a new and separate mahal one of its pattis. It follows, however, from the definition in the Land Revenue Act of perfect partition as ' the division of a mahal into two or more mahals,' that after the partition both the mahals were 'new,' the old mahal with its co-parcenary body had disappeared, and for it were substituted two new mahals, each with a separate co-parcenary body of its own. Whether in that view the right of pre-emption given by the old wajib-ul-arz to the co-sharers of the original undivided mahal could be claimed by a co-sharer of the larger of the two mahals into which it was divided, was a question not considered by the Court. In Shiam Sundar v. Amanant Begam (1887) I.L.R. 9 All. 234, decided by STRAIGHT and Tyrell, JJ., in 1887, the pre-emption olause was described as a contract. At the time when the wajib-ul-arz was framed, the plaintiff was a co-sharer with the vendor in the three villages to which it related. It gave a right of pre-emption to 'shareholders' or 'co-sharers' in the village or mauza. Afterwards there was a perfect partition by which the plaintiff's shares were formed into a separate mahal, of which he was the sole proprietor, but no new wajib-ul-arz was made. The judgments do notdiscuss the terms of the wajib-ul-arz upon which the claim was based. They state the question for decision as ' whether, this partition having taken place, the conditions of the wajib-ul-arz which subsisted prior thereto, and which has not been replaoed by another, are still effectual and binding on all the persons who were originally co-sharers in the villages.' Upon this they observe:--'The question is by no means without difficulty, and, were it res integra, we should have had some doubts in deciding it. There are, however, two rulings of Division Benches of this Court--one Gokal Singh v. Mannu Lal (1885) I.L.R. 7 All. 772, and the other an unreportedcase, F.A. No. 69 of 1882--the former of which has been followed in the present suit by the Court below that are directly in point. We are not prepared, as at present advised, to reconsider the rule therein laid down, to the effect that despite the partition of the village into separate mahals, the existing wajib-ul-arz at the time of partition must be presumed to subsist and govern the separate mahals until it is shown that a new one has been. made. We may add that this view is supported by the terms of the second paragraph of Section 191 of the Revenue Act of 1873.' In this passage the effect of the two cases cited is not, in my opinion, accurately stated. No such rule or presumption is laid down in either. The second paragraph of Section 191 only provides that the existing record-of-rights shall remain in force until a new record-of-rights is made. It implies no presumption as to the construction to be placed on the terms of the wajib-ul-arz, nor as to whether co-sharers in the separate mahals, or even a sole proprietor of one of them, can claim the benefit of a pre-emption clause in favour of co-sharers in the undivided mahal. The case of Kuar Dat Prasad Singh v. Nahar Singh (1888) I.L.R. 11 All. 257, decided by Straigh and Mahmood, JJ' in 1888, does not throw much light on the subject. There was no question of the application after partition of a wajib-ul-arz framed for an undivided mahnl. There was a perfeot partition of a village into two separate mahals, for each of which a wajib-ul-arz was framed. The suit was based on one of these wajib-ul-arzes; it was brought by a co-sharer in the mahal, though not in that patti of the mahal in which the property sold was situate; and the question was whether, according to the pre-emption clause, such a co-sharer was entitled to preference over the vendee who was a co-sharer in a patti of the other mahal. The judgment was based on the terms of the wajib-ul-arz, but it contained this passage:--'It must be distinctly understood that this view of this particular wajib-ul-arz in no way ignores any other decision that may have been passed in oases where one wajib-ul-arz having existed for the purpose of a common village area, and that village area having been divided into separate revenue areas, and no new wajib-ul-arz having been drawn up, such wajib-ul-atz has been held to apply generally to the new area. The principle upon which that view of the law is based is to be found stated in the case of Gokal Singh v. Mannu Lal, and this principle, which is further elaborated in another ruling at page 720 of the same volume (Jai Prasad v. Mahabir Rai) is that this pre-emptive right runs with the land, and the division of that land for the purposes of the revenue in no way affects any covenant or agreement existing between the co-sharers.' That is, in my opinion, a misleading description of the effect of perfect partition, an inaccurate account of the case of Gokal Singh v. Mannu Lal, and a most extraordinary misconception of the judgments in Jai Prasad v. Mahabir Rai. The learned Judges in the latter case did not elaborate any principle stated in the former, and, so far from holding that the pre-emptive right ran with the land and that partition did not affect any agreement between the co-sharers, held, as nearly as possible, the very reverse.
6. In Ramjiawan Sahu v. Raturaj Singh Weekly Notes, 1889, p. 81, decided by Straight and Tyrrell, JJ., the question was whether under the wajib-ul-arz of an undivided village, which gave rights of pre-emption to 'co-sharers,' the plaintiff as a co-sharer of one only of the two separate mahals into which the original mahal had been divided, could pre-empt property in the other. No new wajib-ul-arz had been framed. The learned Judges held that 'the right of pre-emption was one created by agreement between the co-sharers of the village, and constituted a covenant which attached to and ran with the land. The more fact that for purposes of revenue the village has been divided into two revenue-paying areas does not put an end to that covenant, which still attaches to all the land which formed a part of the original village unit, and will until it is abrogated. In support of this view, we may refer to I.L.R. 7 All. 772.' I cannot agree either with the conception of pre-emption as a oovenant running with the land, or with the conception of a perfect partition as an exclusively fiscal operation involving no material change in the pre-emptor's status as a co-sharer, or with the view that either conception is supported by Gokal Singh v. Mannu Lal. To describe pre-emption as a covenant running with the land is to misapply a technical term of English real property law. To describe perfect partition as concerned exclusively with 'purposes of revenue 'is to ignore half its effect. In Abbas Ali v. Ghvlam Nabi Weekly Notes, 1891, p. 137, KNOX, J. held in substance that the partition of a village consisting of a single mahal into two separate mahals, in one of which the plaintiff and the vendor were co-sharers, and in the other the vendee was a co-sharer, did not render the previously framed wajib-ul-arz inapplicable, and that under it the vendee was equally entitled with the plaintiff as a co-sharer of the vendor. The learned fudge did not discuss the effeet of the word which he translated ' shareholder,' but merely observed that the case was one in which the principle which should guide the Court was that contained in Gokal Singh v. Mannu Lal, and in another case which does not seem very applicable. The circumstances of the next case, Mata Din v. Mahesh Prasad Weekly Notes, 1892, p. 100, were peculiar. There was a village or mauza originally forming a single mahal, and the wajib-ul-arz gave a right of pre-emption to 'hissadaran' (translated by the learned Judge as 'co-sharers') not of the 'mahal' but of the 'mauza.' There was a perfect partition of the village into three mahals, for each of which a new wajib-ul-arz was framed, and in each the pre-emption clause was copied verbatim from the old wajib-ul-arz. At that time one of the new mahals belonged to a single owner. Upon the sale of property in that mahal a suit for pre-emption was brought by a person who was a co-sharer in another of the new mahals. Mr. Justice Mahmood held that the plaintiff was entitled to pre-emption as a co-sharer of the mauza, notwithstanding the partition and the fact that he was not a co-sharer of the vendor in the mahal where the property was situate. Although the judgment refers to some of the previous cases, it treats the question as strictly one of the intention of the parties to the contract contained in the wajib-ul-arz. The learned Judge held that, from the use in that wajib-ul-arz of the expression ' co-sharers of the mauza ' as distinguished from the mahal, from its exact reproduction of the pre-emption clause of the wajib-ul-arz of the undivided village, and from the circumstance that when the new wajib-ul-arzes were framed one of the new mahals belonged to a single owner, it was to be inferred that the parties to those instruments intended to preserve the right of pre-emption on its original footing as a right to be enjoyed by all who were formerly co-sharers of the mauza, notwithstanding the partition. It was as if each new wajib-ul-arz had said, 'the right of pre-emption shall belong not only to the co-sharers of this mahal but to all persons who, prior to the partition, could have claimed pre-emption under the old wajib-ul-arz as co-sharers of the undivided mauza.' In other words, they desired to confine the effect of the partition as nearly as possible to 'fiscal purposes as to the payment of Government revenue,' and to retain some distinction between the old co-parcenary body and total strangers to the village. Whether Mr. Justice Mahmood's conclusions in that particular case were correct or not, I cannot doubt that his method of deciding it upon the construction of the contract contained in the wajib-ul-arz was the right one.
7. In Angan Lal v. Hamidulnissa S.A. No. 1249 of 1892, the question was discussed in the judgment of Tyrrell and Blair, JJ., remitting certain issues on the 29th June 1894. The claim for pre-emption was based on the wajib-ul-arz of a mahal consisting of 12 biswas only of a mauza. In that mahal the plaintiff and the vendors were co-sharers. The wajib-ul-arz gave the right of pre-emption by contract to sharers (sharkai) in the mahal. There was a perfect partition by which the 12 biswas mahal was divided into four separate mahals. In one of these, in which the property in question was situate, there were several co-sharers, including the vendors, but not the plaintiff. Of another of the four, the plaintiff was the sole proprietor. No new wajib-ul-arz was framed. After the partition, the vendors sold some of the land in their new mahal to a stranger. The plaintiff sued for pre-emption on the basis of the old wajib-ul-arz. I think there can be no doubt that the suit was rightly dismissed. The plaintiff was not a sharik or sharer in the mahal, within the meaning of the wajib-ul-arz. The class of sharers in that mahal had ceased to exist with the mahal itself. The plaintiff was not even a sharik or sharer in the new mahal in which the property sold was situate. The Court distinguished Gokal Singh v. Mannu Lal, Kuar Dat Prasad Singh v. Nahar Singh, Ramjiawan Sahu v. Raturaj Singh and Abbas Ali v. Ghulam Nabi, on the grounds that in those cases the mauza and the mahal were originally conterminous; that in them the wajib-ul-arz gave rights of pre-emption not to co-sharers in the mahal but to shareholders in the mauza, and that therefore the right there survived the partition of the mahal into separate mahals for which no new wajib-ul-arzes were framed. In Ghure v. Man Singh (1895) I.L.R. 17 All. 226, decided in 1895, the wajib-ul-arz of a village forming a single mahal gave the right of pre-emption to 'hissadaran deh,' the same expression as is used in the wajib-ul-arz in the present case. There was a perfect partition of the village into three separate mahals, and for each mahal was framed a new wajib-ul-arz which gave no right of preemption to sharers in the other mahals. A suit for pre-emption based on the old wajib-ul-arz was brought by a co-sharer of one of the separate mahals to avoid a sale of land situate in another of them. Two questions arose. The first was whether the new wajib-ul-arz was prepared in accordance with law so as to govern the rights of the parties. The second was whether the old wajib-ul-arz was still operative, notwithstanding the partition, and whether the plaintiff was entitled to pre-emption under its provisions. Upon the first question, the Court held that the new wajib-ul-arz was a valid document, and that, as it gave the plaintiff no right of pre-emption, the suit failed. Upon the second they held that the plaintiff could not, after the partition, successfully claim pre-emption on the basis of the old wajib-ul-arz. In reference to the argument for the plaintiff based on the words 'hissadar deh' Mr. Justice KNOX made the following important observations:
We are dealing with a village which bears a Hindu name, the parties before us are Hindus, and the custom, if there be one, of pre-emption, in so far as it extends, is a custom superseding general law. In examining the terms in which it is recorded, we cannot forget that it was recorded at a time when the village bore its natural, and, from a Hindu standpoint, proper form of an undivided village and an undivided mahal. The term 'hissadar deh' as then used would apply to all who could claim to hold a share in land within a well-defined ring-fence in which all were shareholders, and at a time when there existed no intention of the village brotherhood being separated or the land being broken up into distinct parcels, in which some only and not all the village brotherhood would hold a share. It is more than difficult to say that those who then made the record would have recorded that the custom was one which should prevail when the relations of persons and property then subsisting had undergone such a radical change as necessarily ensues when perfect partition takes place.
8. The learned Judge proceeded to distinguish Gokal Singh v. Mannu, Lal, Mata Din v. Mahesh Prasad, Kuar Dat Prasad Singh v. Nahar Singh and Shiam Sundar v. Amanant Begam, with reference to the special circumstances of those cases. He concluded as follows:'The result then is that the document upon which the respondents base their right, and which was the only evidence which they produced in support of that right, is a document prepared at a time when circumstances wholly different from those now in existence prevailed, and which never contemplated the existing state of things. 'We are not prepared to hold that it is sufficient to establish that the custom which did prevail, if there be such a custom, can be held to be a custom governing and ruling the parties in the new and altered state of things.' Mr. Justice AIKMAN, after holding that the new wajib-ul-arz would supply a sufficient answer to the suit, expressly stated that this would be enough to decide the case. What follows is therefore obiter. He proceeded to discuss the question 'whether after a partition an owner of land in one mahal can assert a right of pre-emption when a sale is made of property situated in another inahal.' After observing that it had never been held that a right of pre-emption disappears with an imperfect partition, he referred to Motee Sah v. Musammat Goklee and Jai Ram v. Mahabir Rui in support of the view that 'it is different in the case of perfect partition.' He dissented from the decision in Gokal Singh v. Mannu Lal and expressed the opinion ' that unless at the time of partition a right of pre-emption is specifically reserved by the co-sharers in respect of lands lying in the other mahals, such right of pre-emption is not to be presumed from the mere fact that, when the village formed but one mahal, the co-sharers had pre-emptive rights against each other.' I agree that there is no such presumption, but in deciding whether the right has been established the terms of the wajib-ul-arz and the state of things existing when it was framed, as well as that existing at that time of partition, must, I think, be considered. However, there is nothing in Mr. Justice Aikman's judgment to the contrary, and he expresses no disagreement with Mr. Justice Knox. The decision in that case was followed by Mr. Justice Aikman in Abdul Aziz Khan v. Hasen Ali Weekly Notes, 1895, p. 233, and by Mr. Justice Knox in Shuh Bindraban Das v. Dani Ram S.A. No. 675 of 1897. The claim in the former case appears to have been based on custom. The judgment holds in substance that, after perfect partition, the benefit of a custom of pre-emption recorded in the old wajib-ul-arz as prevailing among the co-sharers of the undivided mahal could be claimed by a co-sharer of one of the separate mahals in respect of property situate therein, but not in respect of property situate in another mahal of which he was not a co-sharer. The reason of this distinction must be that in the former case, but not in the latter, the claim is made by a co-sharer of the vendor. In neither case, however, is it made by a co-sharer of the mahal, to which alone the wajib-ul-arz presumably referred. Whether the distinction was justified or not depends, in my opinion, upon the terms of the wajib-ul-arz. It would not, I think, be safe to assume that a custom prevailing among the co-sharers of mahal A would, after the destruction of that mahal and of the co-parcenary body connected with it, necessarily apply to the co-sharers of mahal B or mahal C, into which A has been partitioned. In this respect Mr. Justice AIKMAN'S decision appears to be inconsistent with that of Mr. Justice KNOX in Shuh Bindraban Das v. Dani Ram, which, however, also purports to follow Ghure v. Man Singh. For in the case before Mr. Justice KNOX, the claim for pre-emption based on the old wajib-ul-arz was made by a person who, after perfect partition, was a co-sharer of the vendor in one of the separate mahals. He claimed as coming within words which the Court of First Instance translated as 'co-sharers in the order of nearness, with regard to their holding shares in the village.' No new wajib-ul-arz was framed. The vendees were admittedly strangers. Mr. Justice KNOX confirmed the decree of the Lower Appellate Court dismissing the suit. His judgment treats Ghure v. Man Singh as not merely stating certain presumptions of fact or considerations as to what is probable in given circumstances, but as giving a general answer in the negative to the question 'whether a wajib-ul-arz which was prepared at a time when the village out of which two separate mahals have now been carved by perfect partition, and for each of which separate mahals no wajib-ul-arz of any kind has been framed, governs the co-sharers in the two new mahals upon a question of the right of pre-emption based upon a covenant said to be contained in the old wajib-ul-arz.' In Abdul Hai v. Nain Singh (1897) I.L.R. 20 All. 92, the terms of the wajib-ul-arz do not appear from the report or from the paper-book. It appears, however, to have recorded a custom of pre-emption as prevailing in the undivided village. The village was dividedby perfect partition into two mahals consisting respectively of 15 biswas and 5 biswas. No new wajib-ul-arz was framed. The whole 5 biswas mahal belonged to the defendant vendor, and he sold it to strangers. The owner of a share in the 15 biswas mahal only sued for pre-emption on the basis of the old wajib-ul-arz. The High Court on appeal dismissed the suit. The Judgment of Edge, C.J., and Blair, J., refers with approval to Ghure v. Man Singh and Angan Lal v. Hamid-ul-nissa. The principle on which it is based is the improbability, having regard to the usual objects and motives of shareholders obtaining perfect partition of a mahal, that they should, after partition, intend that the other co-sharers from whom they had separated their interest should be entitled to come in and become again their co-sharers. The last reported case is Mithu Lal v. Muhammad Ahmad Said Khan Weekly Notes, 1899, p. 19, decided by BLAIR and Aikman, JJ. The suit was based on a pre-emption clause recording a custom of pre-emption in favour of 'co-sharers in the village.' The village, at the time when the wajib-ul-arz was framed, was an undivided mahal. By a perfect partition it was afterwards divided into two separate mahals of 15 and 5 biswas respectively. No new wajib-ul-arz was framed. The plaintiffs and the vendors were co-sharers in the 5 biswas mahal, in which the property was sold. The vendee was sole proprietor of the 15 biswas mahal, and his only connection with the other was that he owned in it certain rent-free land. His main defence to the suit was that the plaintiffs had no preferential right because he was himself a 'co-sharer in the village' within the old wajib-ul-arz, notwithstanding the partition. The High Court held in substance (1) that the old wa]ib-ul-arz and the old custom still remained in force in so far as they were not inconsistent with the state of things created by the partition, (2) that as in consequence of the partition the defendant had ceased to be a 'co-sharer in the village' with the vendor, and was not a co-sharer in the 5 biswas mahal, he had not equal rights with the plaintiffs, and (3) that the plaintiffs were entitled to pre-emption under the old wajib-ul-arz. So far as this decision rejected the defendant's claim to the right of pre-emption, I have no doubt that it was right. But what about the claim of the plaintiffs? The Court in decreeing the suit assumed that the plaintiffs, at all events, were entitled to pre-emption under the old wajib-ul-arz, notwithstanding the perfect partition. Apparently they assumed it because the plaintiff's were admittedly co-sharers with the vendor in the 5 biswas mahal in which the property sold was situate. In other words they took for granted that co-sharers in one of the separate mahals were 'co-sharers in the village' within the meaning of the wajib-ul-arz. It is likely enough that they were right, but they do not discuss the question. All depends on what the wajib-ul-arz meant by 'co-sharers in the village.' If it included all persons who might thereafter be co-sharers in any part of the village, the decision was right. If it meant all persons who were co-sharers in the entire undivided village for which the wajib-ul-arz was framed, the decision was wrong, for the plaintiffs, after partition, were no more co-sharers of the village in that sense than the defendant vendee. As a matter of fact the only co-sharers in the village at the time when the wajib-ul-arz was framed were co-sharers of the undivided village.
9. In the present case the whole question is, in my opinion, whether a hissadar has transferred his share within the meaning of the wajib-ul-arz, and whether the plaintiff is a hissadar deh within the fourth category of pre-emptors. Taking first the word deh, it is, I think, virtually equivalent to mauza. It means a village in the sense of a definite local area, the actual village, with the lands belonging to it: Wilson's Glossary of Judicial and Revenue Terms, p. 141, Elliott's Supplementary Glossary of Terms used in the North-Western Provinces, Vol. ii, p. 283. It does not mean a mahal, and has no necessary reference to the fiscal unit. So far I agree with the argument on behalf of the plaintiff'. The next question is, what is a hissadar of the village? The learned pleader contended that hissadar did not here mean a 'co-sharer' of a mahal in the sense in which that term is used in the Land Revenue Act, but merely 'the holder of a share.' He argued that if co-sharers, in the sense of persons owning shares in the mahal formed by the undivided village, had been intended, some such word would have been used as 'sharik-i-mahal,' the term used for co-sharers in the official vernacular translation of the Land Revenue Act, or else 'sharik-i-hissa.' He laid stress on the expression 'malikan sharik khata' in the third category of pre-emptors mentioned in the wajib-ul-arz as indicating that, where jointness of interest was signified, the word 'sharik' was employed. According to this argument, a hissadar deh merely means one who owns or holds a share within the area of the village. If that is the meaning, then, notwithstanding the partition, the plaintiff is entitled to pre-emption, for the dch or village still remains, and he is still a hissadar, or owner of a share, within its area. On the other hand, it was contended for the defendants that hissadar means not merely the owner of a share, but a 'co-sharer,' and that hissadar deh means a co-sharer of the entire village for which the wajib-ul-urz was framed. If that is the meaning, then, as the effect of the perfect partition was to destroy the class of hissadaran deh altogether, neither the plaintiff nor anyone else can now claim pre-emption as a member of it.
10. The result of the argument is, I think, to show that the word hissadar taken by itself, and without reference to any context is ambiguous. In Wilson's Glossary it is translated ' a shareholder, a sharer, a co-parcener, one who pays his share of revenue to a zamindar or to the State.' Mr. Durga Charan has pointed out in the written statement of one of the defendants and in the deposition of a witness instances of the description of persons as hissadars of the village Serai Sitam, though, since the partition, no one has been a co-sharer of the entire village. All depends, I think, upon the context. There are two main considerations which have led me to the conclusion that in this wajib-ul-arz hissadar deh means a co-sharer of the undivided village for which the wajib-ul-arz was framed. The first is that the word 'hissadar' as used in the fourth category of pre-emptors must be construed in the same sense as the same word in the opening words of the clause ' if any hissadar wishes to transfer his share (apna hissa).' The word 'hissadar' is there used without the word deh. Considering that a wajib-ul-arz is framed under the Land Revenue Act for a mahal, and that its chief purpose is to record the usages of co-sharers of the mabal in the sense of the Act, I think there is a strong presumption that the word 'hissadar' when used in such a document means, in the absence of other expressions implying a different meaning, a co-sharer in that sense, a person jointly and severally responsible to Government for the revenue for the time being assessed on the entire mahal for which the wajib-ul-arz was framed, and, in cases of zamindari tenure, having a joint and undivided share in the whole of that mahal. The opening words of the clause mean therefore, in my opinion, 'if any co-sharer of this mahal wishes to transfer his share therein.' If so, the subsequent words 'hissadaran dch' mean 'co-sharers of the undivided village,' not 'owners of shares in any sub-division of the village.' The second consideration is this. We are interpreting and applying a particular custom of which the plaintiff claims the benefit. In considering who is entitled to the benefit of a custom it is essential to see who are the persons among whom it has in fact habitually prevailed. It cannot be claimed by anyone who is not a member of the class thus determined. Now there can be no doubt as to what was the class of persons who at the time when the wajib-ul-arz was framed, habitually exercised the right of pre-emption by virtue of the custom. They were the co-sharers of the undivided mahal which the village Serai Sitam then formed and no others. There was no distinction between shareholders in the village and co-sharers of the entire village; there was only a single class of co-sharers. That is the only class among whom the custom actually prevailed, and to whom therefore the right belonged. It is now sought to apply the custom for the benefit of the plaintiff, who stands in a totally different relation to the village, to the vendor, and to the property sold: He is not a co-sharer of the entire village. He is not a member of the class who exercised the right of pre-emption at the time when the custom was recorded. He is a member of a class which only came into existence through the partition--persons who have shares in a particular sub-division of the village. He is not even a co-sharer of the vendor. To allow him to pre-empt under the old wajib-ul-arz would be, in my opinion, to change the custom while professing to apply it.
11. For these reasons I am of opinion that the sale which the suit seeks to avoid was not a transfer within the meaning of the wajib-ul-arz, that the plaintiff is not entitled to pre-emption as a hissadar deh, and that his suit and this appeal must be dismissed with costs in all Courts.
12. I concur in all that the learned Chief Justice has written, and have nothing more to add.
13. I am of the same opinion.
14. I have arrived at the same conclusion as the learned Chief Justice.
15. A claim for pre-emption not founded on Muhammadan law must be based on custom, or contract, or both. A wajib-ul-arz, in so far as it relates to preemption, is the record of the custom of pre-emption which prevails in the village or mahal, or of the contract by which the co-sharers have agreed to be bound: when therefore a wajib-ul-arz is referred to as the foundation of a claim for pre-emption, the real basis of the claim is the custom or contract which is evidenced by the wajib-ul-arz. Even if the wajib-ul-arz has become inoperative as a part of the record-of-rights, it does not necessarily follow that the custom or contract embodied in it has ceased, and that a suit cannot be brought upon the basis of such custom or contract. It seems to me that the conflict of opinion which arose in the numerous cases cited to us at the hearing and considered in detail by the learned Chief Justice was to a great extent due to the fact that in many of those cases the provisions of the wajib-ul-arz were treated as representing a contract between the co-sharers, whereas in fact they were, and professed to be, the record of a custom prevailing in the particular village or mahal. It was, I suppose, in consequence of this disregard of the exact nature of the claim that it was laid down in some of those cases that after a perfect partition has been effected a co-sharer in one mahal is not entitled to pre-empt property in another mahal 'unless at the time of partition there has been some specific arrangement by which reciprocal rights of pre-emption have been maintained between the co-sharers of the different mahals.' In my opinion the mere fact that a perfect partition has taken place does not abrogate a custom or contract as to pre-emption which was in force before partition. If after partition a new wajib-ul-arz has been prepared recording a custom or contract different from the custom or contract embodied in the old wajib-ul-arz, the presumption will be that the custom which obtained in the village or the mahal at the time of the preparation of the old wajib-ul-arz has fallen into desuetude, and a new custom has sprung up, or that the co-sharers have set aside the old contract and entered into a new one. But where a fresh wajib-ul-arz has not been prepared at partition, it does not follow, as a matter of law or principle, that the custom or contract in force before partition is no longer to have effect and operation. As observed by the learned Chief Justice, the question in each case is that of the construction of the nature of the particular custom or contract on which the claim for preemption is based, and whether the custom or contract can apply to the altered state of tilings which has come into existence since a perfect partition has been effected.
16. In the case before us the wajib-ul-arz which was referred to as the basis of the claim professes to be the record of a custom and not of a contract. What we have to consider is whether under that custom the plaintiff has a preferential right of pre-emption. It is admitted that the plaintiff does not belong to the first three classes of pre-emptors mentioned in the wajib-ul-arz, nor does he come under the fourth category. Since partition he has admittedly ceased to be a co-sharer of the vendor. He no doubt holds a share in the village. But, in my opinion, the true construction of the custom as recorded in the wajib-ul-arz is that it is only such a shareholder as is also a co-sharer who has the right of pre-emption as a pre-emptor of the fourth class. At the time when the wajib-ul-arz was prepared all the shareholders were also co-sharers. The custom which was embodied in the wajib-ul-arz evidently had reference to that description of shareholders. Therefore by virtue of such a custom the plaintiff, who is the holder of a share in the village, but not a co-sharer of the vendor, has no right of pre-emption and his suit has been properly dismissed. I would dismiss this appeal with costs.
17. The question raised in this appeal is whether, when no new wajib-ul-arz has been prepared on the perfect partition of a mahal, a claim for pre-emption can be maintained on the basis of the old wajib-ul-arz framed for the former mahal, which has by partition been broken up into two or more mabals. I agree with the learned Chief Justice in holding that it is incorrect to say that upon partition the former wajib-ul-arz necessarily disappears or ceases to exist. If a fresh wajib-ul-arz is prepared for each of the new mahals the old wajib-ul-arz is thereby superseded, but until this is done the old wajib-ul-arz must be considered as in force, but only so far as it is applicable to the altered state of things.
18. The cases in this Court which held that, because, under a wajib-ul-arz in force before partition there had been a right of pre-emption amongst those who were then co-sharers of the village, the same right subsisted after partition amongst those who owned shares in the different mahalsof the village, lost sight, it appears to me, of the material alteration in the circumstances brought about by the partition.
19. Where the wajib-ul-arz of an undivided mahal, whether reciting a custom or embodying a contract, lays down that a right of pre-emption prevails amongst the 'shareholders' of the mahal, it refers to a body of men between whom there is this common bond that they each own a fractional share of an integer made up of all the shares held by each, in virtue of which ownership they incur reciprocal liabilities and are entitled to reciprocal rights. When this common bond has disappeared it cannot be assumed that the reciprocal rights and liabilities which formerly existed are still in force. Where the old wajib-ul-arz recites the existence of a custom amongst a body of men between whom a common link subsists, I do not see how, after a perfect partition, it can reasonably be held that the custom continues to prevail amongst those between whom that common link is no longer in existence. Where, however, the wajib-ul-arz embodies a contract, I ooncur with the learned Chief Justice in holding that the question whether, in the altered state of things, the contract is still in force, must depend on the language of the old wajib-ul-arz. It is quite conceivable that the old wajib-ul-arz might set forth an express agreement that no future partition would destroy existing rights of pre-emption. But where there is no such express contract, and the old wajib-ul-arz merely records a right of pre-emption as existing by Way of a contract amongst those who are hissadars of the village, the inference is that the language of the wajib-ul-arz refers to persona who stand to one another in the mutual relation of owning shares in the same integer.
20. In the present case the claim of the plaintiff was based on a clause in the wajib-ul-arz which occurs in a chapter dealing with the rights of co-sharers amongst themselves. According to this clause a hissadar could nob sell his share to an outsider until he had first offered it to the other shareholders in the village (hissadaran deh). This was the record of a custom. From the language used, the inference I draw is that the custom was one which prevailed amongst those who each owned a fractional share or hissa of one undivided estate, and cannot be held to subsist amongst those between whom there is now no such common bond. To use the words of Oldfield, J.:--' The condition of pre-emption only affected the shareholders of the mahal as long as they remained shareholders, and ceased to have effect on those shareholders and their property who separated themselves and their property by forming a separate mahal,' (1885) I.L,R., 7 All. 720, at p. 730. The plaintiff in this case owns no property in the mahal in which the share sold is situated, and cannot therefore be held to be standing in the relation of hissadar to the hissadar who has sold.
21. For these reasons I think the plaintiff's suit was properly dismissed by our brother Blair, and I would dismiss this appeal with costs.