W. Comer Petheram, C.J.
1. I think that the first question referred to us in this case must be answered in the affirmative. It is--'Was the transfer of the one biswa and six dhurs of land made by Farukh Ali, on the 13th August 1881, or was it not, a transfer of haqiyat within the terms of the wajib-ul-arz? The only question here is, whether a transfer of a part of a man's land in a village can be considered a 'transfer of his rights and interests' within the meaning of the wajib-ul-arz. Now documents like the wajib-ul-arz must be read as a whole and in the light of common sense, and, so read, it is evident that the object of the wajib-ul-arz is the exclusion of strangers from the village. If it is so read that although a man may not sell the whole, he may sell a part, of his land in the village, without letting in the right of pre-emption, the whole object of the wajib-ul-arz would be defeated, because the result might be the admission of a great number of strangers. That appears to me to amount to a reductio ad absurdum, and I am therefore of opinion that when any co-sharer sells any part of his land, the right of pre-emption belonging to his partners arises. My answer to the first question is therefore in the affirmative.
2. My answer to the second question is in the affirmative also. As I understand the matter, this right of pre-emption has arisen out of a very old custom, under which land was originally occupied by families or communities, and the rule originally was that if any individual went away or failed, his share became divisible among the rest. But afterwards there grew up a right based upon custom, by which the owner, before going away, might sell his share to his neighbours. And later still, he became entitled to sell the share, not only to them but to a stranger, unless his co-sharers chose to buy him out. In that case, the right to sell to the stranger arose upon the refusal of the co-sharers to make the purchase.
3. It is to this custom that the terms of the wajib-ul-arz appear to me to give expression, and the matter therefore comes to this that before any sharer is competent to transfer his rights and interests, he must offer to transfer them to his co-sharers. It is true that the Wajib-ul-arz shows that before the co-sharers can fix the price, the owner is entitled to get what he can from an outsider, so that he can insist upon their giving the same. Under these circumstances, the word 'qimat' is used, and it seems to be generally agreed that the meaning of this word is not 'money,' but 'equivalent' or 'value.'
4. If, therefore, the co-sharers want to get the land, they must give the vendor the equivalent or value of the thing for which he desires to exchange his property. Now, in all countries sufficiently advanced in civilization to possess coinage, money is the accepted standard of value, and therefore, because in this case the co-sharers cannot give the thing for which the vendor agreed to exchange his land - it being another piece of land which does not belong to them--they have a right to obtain his land for an equivalent in money. My answer to the second question therefore is in the affirmative.
5. I cannot concur in the contention that the pre-emptive clause of the wajib-ul-arz is only intended to apply to cases in which a sharer parts with the whole or considerable portion of his haqiyat. If this argument were to be admitted, it would, in my opinion, be open to any sharer to defeat such right by disposing of his haqiyat piece-meal. I then come to the question whether there was such a transfer of the vendor's haqiyat in the present case as gave birth to the plaintiff's right of pre-emption. I think that the exchange was an undoubted transfer of the one biswa and six dhurs to the vendee. The remaining point to be determined is whether the field given in exchange by the vendee to the vendor can be regarded as the price given, for the purpose of supplying a basis upon which the plaintiff must compensate the vendor. I think that it can, and that the plaintiff, before getting the one biswa and six dhurs must pay whatever may be found to be the value of the field given by the vendee.
6. My answer to both the questions referred to us is in the affirmative. I wish, however, to express no opinion as to whether the pre-emptor can force the vendor or the vendee to take the value of the property exchanged, that not having been the object of the contract under which the exchange of land for land was intended. Nor do I express any opinion as to whether the proper remedy of the pre-emptor was not rather to have the contract rescinded, and the vendor and vendee put back into their original position, in regard to the land which was exchanged.
7. I concur with the learned Chief Justice in answering both of the questions referred to us in the affirmative.
8. I have arrived at the same conclusions. Upon the first question, as to the interpretation to be placed on the word 'haqiyat,' I have nothing to add to the observations which I made upon a cognate question in the case of Sahib Ram v. Kishen Singh Weekly Notes 1882 p. 192 which was a case decided by a Full Bench, of which I was a member, but had the misfortune of differing with the majority of the Court. The case has unfortunately not been reported in the Indian Law Reports, but I have adhered to the view which I then expressed as to the nature of the proprietary rights of a co-sharer in a mahal to which, under the wajib-ul-arz, the right of pre-emption applies. That case related to the question whether the abadi area or habitable site of a village came within the meaning of the term 'haqiyat;' and in the present case the property appears to be a grove. The ratio decidendi of my judgment in that case is mutatis mutandis, entirely applicable here, and therefore my answer to the first question must be in the affirmative. I may add, in reference to this question, that in the case of Hazari Lal v. Ugrah Rai Weekly Notes 1884 p. 103 the Full Bench ruling to which I have referred was relied on in connection with sir-land. With all due deference, I dissent from the decision, and must express myself unable to accept the rule of the law therein laid down.
9. Upon the second question, I have nothing to add to what the learned Chief Justice has said from the Bench on several occasions. The rule of pre-emption was originally introduced into India as a part of the Muhammadan law, and must, by equitable analogy, be administered in the spirit of that law. This view was adopted by Sir Barnes Peacock, C.J., a good many years ago. It therefore appears to me that the word 'qimat,' which is of Arabic origin, must be interpreted in the sense given to it by the Muham-madan law, and that is undoubtedly not the technical meaning of the English word 'price.' In the law of pre-emption 'qimat' includes not only money, but other kinds of property capable of being valued at a definite sum of money. This is borne out by the passage in Hedaya, which has been cited at the Bar: 'If a man sell a piece of ground for another piece of ground, in this case, as each piece of ground is the price for which the other is sold, the shafee of each piece is entitled to take it for the value of the other, land being of the class of zosat-al-keem, or things compensable by an equivalent in money,' (Grady's edition of Hedaya, p. 555), and in this sense the word may be taken to cover the consideration of 'sale' as well as of exchange as defined in Sections 54 and 118 of the Transfer of Property Act (IV of 1882) respectively. Any other view of the law of pre-emption would simply render the object of the right easily defeasible--the object being the exclusion of strangers from the co-parcenary of the property to which the right applies.
10. My answer to the second question also is therefore in the affirmative.