1. The plaintiff is the appellant in this case and his suit for preemption has been dismissed. It is not denied that the plaintiff Jadunandan is related to the vendor Mt. Sundra for they are both descended from a common ancestor named Ram Dat. The plaintiff's case, however, has failed in the Courts below on the ground that he is more than four degrees removed from the common ancestor according to the rule which is laid down in Section 12(3) of the Agra Pre-emption Act. A reference to the pedigree which is set out in the judgment of the trial Court shows that the plaintiff is the great-greatgrandson of Ram Dat, and Mt. Sundra, the vendor is the great-granddaughter of Ram Dat.
2. It is by no means easy to interpret the Sub-section (3) of Section 12 of the Pre-emption Act. But after giving the matter our best consideration we are of opinion that in this case the plaintiff's claim for preemption must fail. It appears to us that Sub-section (3) of Section 12 provides for a scheme of preference in favour of relations of the vendor, that is to say, those connected with him by descent from a common ancestor. Any relation who claims preference on this ground must in the first place show that be and the vendor are descended from a common ancestor.
3. But all descendants from the common ancestor are not given a right of preference. Under Sub-section (3) the right is limited: it is provided clearly that no one 'removed by more than four degrees including the common ancestor' shall be entitled to pre-emption as against other persons of the same class. It seems to follow, therefore, from this that the right of preference on the basis of relationship consisting in descent from a common ancestor is strictly confined within the limits indicated and, therefore, any person who wishes to establish a right of preference under Sub-section (3), must show that he is not further removed than four degrees from the common ancestor and in counting the degrees it is necessary that the common ancestor himself should be counted as the first degree. Ordinarily, perhaps, that would not be so, but we have to give effect to the words which we find in Sub-section (3) 'including the common ancestor' and, therefore, we think that in estimating the distance of four degrees the common ancestor himself is reckoned as the first degree. Applying this principle to the pedigree now before us the calculation works out as follows: Ram Dat first degree, Mulho second degree, Perbhu Rai third degree, Mt. Phulehra fourth degree and Jadunandan plaintiff, fifth degree. Jadunandan is, therefore, more than four degrees removed from Ram Dat according to the scheme of counting laid down in Sub-section (3) of Section 12.
4. It has been argued that the measure of four degrees mentioned in Sub-section (3) of Section 12 should be applied to the relationship between the vendor and the pre-emptor. That argument was put forward in an earlier case heard by the Pre-emption Bench S.A. No. 141 of 1925, decided on the 30th of June 1926. It was held in that case that the measure of four degrees could not, on the language of Sub-section (3), be applied to any relationship existing between the pre-emptor and the vendor; and obviously if that argument were accepted the right of preference which Sub-section (3) was intended to secure would be very much restricted. It is further to be noticed that in counting the degrees of relationship between the plaintiff pre-emptor and the vendor the common ancestor would necessarily be included and in that case there would have been no need for the words 'including the common ancestor' which are to be found in Sub-section (3).
5. The plaintiff, therefore, was not entitled to pre-emption and the appeal fails and is dismissed with costs including in this Court fees on the higher scale.