John Edge, C.J., Knox and Blair, JJ.
1. This appeal has arisen in a suit for pre-emption. The appellants are the plaintiffs, who claim to pre-empt under a condition in the wajib-ul-arz relating to the village. The condition is-in that part of the wajib-ul-arz which bears the heading 'shafa.' It is advisable to state what the whole provision for pre-emption is. It. is as follows:
When any co-sharer wishes to make a sale or mortgage of his share, it is incumbent on him to do so first in favour of a near co-sharer, next in favour of a co-sharer of his thok, and lastly in favour of a co-sharer of another thok, at the rate of Rs. 20 per bigha of cultivated land and Rs. 5 per bigha of waste land. If none of these take it, then he may transfer it to an outsider. If any co-sharer (i.e., any co-sharer who wishes to sell or mortgage) fail to act as above directed, another co-sharer has the right of enforcing pre-emption in respect of the property. If the term of the mortgaged share of any co-sharer is about to expire, and notice of foreclosure has been issued, and the co-sharer mortgagor has not the means to redeem, then another co-sharer, after paying up the money, may take back the share, and when the original mortgagor has the means, he, after-paying the money, may take possession of the share.
2. What happened in this case was this:--A co-sharer mortgaged a share in the village by a conditional sale-deed. The mortgagee, conditional vendee, subsequently brought his suit for foreclosure under Act No. IV of 1882, and obtained a decree for foreclosure and an order was subsequently made making the foreclosure absolute. Thereupon the present plaintiff appeared on the scene and claimed to step into the shoes of the mortgagee vendee and to become in fact absolute owner, upon payment, not of the mortgage money for which the decree for foreclosure was passed, but of Rs. 20 per bigha for cultivated land, and Rs. 5 per bigha for waste land.
3. This wajib-ul-arz has been before another Bench of this Court in the case of Loknath Singh v. Dhajju Singh, Second Appeal No. 359 of 1895, in which the decision of the Bench was given on the 17th of July last. In that case the learned Judges differed, Mr. Justice BANERJI holding that the pre-emptors in that case, who were claiming under exactly the same conditions as the pre-emptor in this case, could not have pre-emption except upon payment of the full decretal amount of the foreclosure decree. On the other hand Mr. Justice Aikman held that, although the foreclosure decretal amount in that case was Rs. 2,226-8-0, the plaintiffs were entitled to pre-emption upon payment of Rs. 654-8-7, the latter being the amount calculated at Rs. 20 per bigha for cultivated land, and Rs. 5 per bigha for waste land.
4. We are bound to say that, if the plaintiffs, in the case to which we have referred, had, after the making of the decree for foreclosure, any right whatsoever of pre-emption under the wajib-ul-arz, the only construction possible in that event to put on the wajib-ul-arz was, in our opinion, that which was adopted by Mr. Justice Banerji. To illustrate by that case the position contended for on behalf of the pre-emptor appellant in this case, we may point to the following facts. There were three stages in the case. One was at the time when the co-sharer desired to mortgage his share, and mortgaged it. At that time, according to the wajib-ul-arz, the other co-sharers were entitled to pre-empt for Rs. 654-8-7. The next stage was after the suit for foreclosure had been brought, which would be equivalent to the service of notice of fore-closure under the Regulation which was in force when this wajib-ul-arz was made, and before the order absolute for foreclosure was made. At that time, if the plaintiffs in the former case had sought pre-emption, they could only have obtained the rights of the mortgagee on payment of the mortgage money due at the time, that is, on payment of a sum exceeding Rs. 2,000. The decree for foreclosure absolutely fixed the amount which must be paid in order to prevent the right to redeem being foreclosed for ever. The next stage was that subsequent to the making of the order absolute for foreclosure. At this last stage, according to Mr. Justice Aikman, the co-sharer seeking preemption was in a more fortunate position than he would have been at the intermediate stage, and was entitled to pre-empt by payment of Rs. 654-8-7, the amount calculated at Rs. 20 and Rs. 5 per bigha, as already mentioned; and, according to Mr. Justice Aikman, in that third stage, for that sum of money, a person claiming pre-emption was entitled to step into the shoes of the mortgagee who had obtained a decree and an order absolute for foreclosure, upon payment of the Rs. 20 and Rs. 5 per bigha, irrespective of what the principal mortgage money may have been and irrespective of the amount at which the interest on that principal may have arrived. Mr. Justice Aikman was quite right in saying that in construing this class of wajib-ul-arzes one should endeavour to ascertain what the intention of the parties was and to construe them as far as possible with regard to that intention. In our opinion the parties to this wajib-ul-arz never could have had any such intention as that which would have been consistent with the construction put upon the waijb-ul-arz by Mr. Justice Aikman.
5. But the real point and the real answer to the plaintiff's suit was not raised by the defendant-appellant in the appeal before those learned Judges. We are not referring to what the parties may have thought was the real answer: we are referring to what appears to us to be, upon the true construction of the wajib-ul-arz, the real answer to this suit and to the former suit. In our opinion this wajib-ul-arz contemplates only two stages, and not three. It contemplates a time when a contract of a sale or of mortgage is about to be entered into or has been entered into. The Indian Limitation Act, 1877, fixes a time within which a co-sharer desiring to claim pre-emption on a sale or on a mortgage must bring his suit. The second stage is when the conditional vendee has brought his suit for foreclosure, and before he has obtained his order absolute on the decree for foreclosure. Dp to the time when that order is made absolute the co-sharer desiring to pre-empt may, under this wajib-ul-arz, obtain pre-emption upon payment of the amount decreed in the suit for foreclosure. When the order absolute for foreclosure is made the co-sharer's right to pre-empt under this wajib-ul-arz is in our opinion gone and extinguished. There is no provision as to what is to take place then, and a co-sharer not having availed himself of his right to pre-empt before the order absolute, the decree of the Civil Court must take effect and must fully vest in the vendee the rights which he obtains under his order absolute for foreclosure. At that time the matter has reached the stage when it is beyond the scope of this custom or contracts in this wajib-ul-arz, and the right of the decree-holder under his Civil Court decree cannot be affected.
6. That is our view of the law to be applied to the case. If the defendant had filed a cross appeal, we could have given effect to it by dismissing the plaintiff's suit; but all we can do now is to dismiss the plaintiff's appeal, as he has not made out a case upon which we should alter in his favour the decree of the Court below.
7. We dismiss this appeal with costs.