Henry Richards, Kt. C.J. and Tudball, J.
1. This appeal arises out of a suit for pre-emption. The village in which the property is situate is called mauza Sarai Ghasi. At one time this village was divided into a 2 1/2 biswa share, held by the Skinner family, and a 17 1/2 biswa share held by other co-sharers. In course of time the 2 1/2 biswas appear to have been formed into one mahal, and the 17 1/1 biswas into another mahal. The 17 1/2 biswas were afterwards divided into a number of different mahals. The property which is sought to be pre-empted is situate within the Skinner mahal. It appears that on the 13th of February, 1892, this very property was sold and purchased by one Bhola Mal. The present vendor, Ram Sahai, brought a suit for pre-emption, which was successful. Ho was a sharer in another mahal and he based his suit upon a record set forth in the dastur dehi of 1886. His claim was decreed, the court being of opinion that the record in the dastur dehi was one of an arrangement between the sharers in the entire village. There is this distinction between the present; case and the one just mentioned, that in that case the claim was against a stranger whilst, in the present case the claim is by a sharer in a different mahal, who is a near relation of the vendor against a person who is a sharer in another mahal, but no relation. The court below has decided against the plaintiff and dismissed the suit. It has referred to the case of Ganga Singh v. Chedi Lal (1911) I.L.R., 39 All., 605. In that case this Court considered at some length what was the proper way to approach the consideration of a case of pre-emption where the issue was the existence or non-existence of a custom of pre-emption, and it pointed out that the weight which should be attached to extracts from the wajib-ul-arzes in different cases varied very much. The circumstances of the present case are very different. The extract from the dastur dehi of 1886, has been translated as follows:
If a co-sharer wants to sell his share, he shall first sell it to his near co-sharers, then to sharers in the patti mahal, or the village; and if they refuse to take, then to anyone he may like.
2. A more literal translation would be:
A co-sharer must sell first to near co-sharers, then in the patti, then in the mahal, then in the village.
3. The dastur dehi, notwithstanding that the village had been divided into A large number of mahals, was the dastur dehi for the entire village. Having regard to the division which had taken place, karibi cannot refer to anything except relationship, that is to say, a sharer who is related. Furthermore, the fact that defendant's vendor himself set up the right of pre-emption contained in this very document, is, we think, a very strong point both against himself and his vendee. The title of the defendant's vendor was this very decree in a suit for pre-emption. We are not in any way deciding that a custom of pre-emption exists. There are many reasons for thinking that the growth of such a custom in this village, owned as it was in part by members of the Skinner family, was very improbable. Bat if the dastur dehi records an arrangement between thc sharers in the village, it is an arrangement which is still in force. We think there was such an arrangement. There only remains the question whether or not, assuming that an arrangement between the owners of the village as to pre-emption exists, it extends to giving a right of a sharer in one mahal, who is a relation, a preference over a sharer in another mahal who is no relation. We think that the clause, as a whole, can have no other meaning. We, therefore, think the decree of the court below was erroneous and ought to be set aside. Before, however, finally deciding this appeal, it will be necessary to refer an issue to the court below, namely:
4. What was the true sale consideration?
5. We accordingly refer the above issue to the court below. The court below will receive such evidence relevant to this issue as the parties may adduce. On return of the finding, the usual ten days will be allowed for filing objections.