Henry Richards, C.J. and Tudball, J.
1. This and the connected Appeal No. 257 of 1912 arise out of two pre-emption suits brought by rival pre-emptors to secure property in the village of Khartam Sarai, which was transferred by the defendant, Fateh Bahadur Singh, on the 8th of November, 1910, to the second defendant, Pandit Govind Prasad.
2. The appellants in the present appeal are the plaintiffs, Durga Prasad Pande and Ganga Prasad Pande. Their case is that there is a custom of pre-emption prevailing in the village under which they have a right to pre-empt the property sold as against the vendee, Pandit Govind Prasad, who is an entire stranger to the village community. Musammat Adhar Kunwari, the plaintiff in the connected suit, is a co-sharer also in the mahal. She also pleaded the existence of a custom of pre-emption and claimed that she had a right preferential to that of the other plaintiffs, Durga Prasad and Ganga Prasad. Each set of plaintiffs was made a defendant to the other parties' suit.
3. The court below has dismissed the suit of Durga Prasad Pande and Ganga Prasad Panda on the ground that, though there is a custom of pre-emption existing in the village, it is a custom which is enforcible only among the co-sharers owning 12 annas out of 16 annas in the mahal; that therefore these plaintiffs have no right whatever, as they own the other 4 anna share, and that Musammat Adhar Kunwari has a right to pre-empt the whole. It came to a conclusion as to the true sale consideration and gave Musammat Adhar Kunwari a decree for possession conditional on the payment of the amount fixed within a certain period. Durga Prasad Pande and Ganga Prasad Pande have appealed in both cases. The vendee Pandit Govind Prasad has not appealed against the decree passed in favour of Musammat Adhar Kunwari. It is pleaded on behalf of the present appellants that the finding of the court below that a custom of pre-emption does not extend to the owners of the 4 annas owned by these two appellants is incorrect; and that the evidence clearly shows that the custom applies to the whole village They accept the amount of consideration found to be correct by the court below, and they plead that Musammat Adhar Kunwari has no right to pre-emption in preference to their own; but they as co-sharers in the same thok with the vendor have a right preferential to her.
4. In the year 1833 when a settlement was made in this village the whole village was owned by two branches of a family of Kayasthas. In the wajib-ul-arz drawn up that year in Clause 10 it was clearly set forth that a custom of pre-emption existed in the village under which no co-sharer could transfer to an outsider without first offering the property to the co-sharers of the village. The village consisted of two thoks each of 8 annas. One thok was owned by Bhaia Chitan Bakhsh and the other thok (Bakht Rai) by other members of the family, whose property was in the hands of mortgagees, Sarabjit Rai and others. At the time of the mutiny, owing to rebellion on the part of Banke Bihari Lal and another (two of the co-sharers owning a 4 anna share in one of the thoks) Government confiscated their 4 anna undivided share. The wajib-ul-arz of the settlement of 1860 shows that prior to that settlement Government had bestowed this confiscated 4 anna share upon one Ram Prokash Pande. In the wajib-ul-arz, at the commencement, are entered the names of the four co-sharers who were members of the Kayastha family, but in the opening preamable there is also mention made of Ram Prokash Pande and the fact of the grant to him by the Government. In paragraph 7 the co-sharers set forth that 'We Kunj Behari, Ram Prokash and Bhaia Suraj Bali Singh have been appointed lambardars by common consent.' In paragraph 16 the co-sharers set forth the manner in which they collected the rents of the village. In Clause 6 is set forth the custom of pre-emption. Under it, if a co-sharer wishes to transfer his share, he was hound to offer it first of all to the co-sharers of the village before making any such transfer. The custom, it would seem, is exactly the same as set forth in the wajib-ul-arz of 1833. There cannot he any doubt whatsoever that Ram Prokash Pande was a co-sharer at the time of that settlement and that be was a party to the settlement.
5. We next come to what is known as the zamima khewat drawn up in the year 1884 (at the last settlement of the district). The 4 annas which had been granted to Ram Prokash Pande was at that time in the hands of his descendants. In Clause 2 of the zamima khewat is set forth a custom of pre-emption giving every co-sharer a right to transfer his share subject to the condition that the first right of purchase will vest in one who is a near co-sharer and belongs to the family of the vendor; that the next right would vest in the co-sharer in the patti and the third in the co-sharers in other pattis. It will be noticed that this custom is an amplification of the simple custom which was set out at the two former settlements. It will also be noticed that it gives a prior right to a co-sharer who is a member of the same family as the vendor. At this settlement the co-parcenary body consisted of the Brahmans who owned a 4 anna share and the Kayasthas who owned the remaining 12 aana share. The village still consists of two thoks of 8 annas each. The property which is the subject matter of this suit is in that 8 anna thok in which the Brahmans own a 4 anna share. The share owned by Musammat Adhar Kunwari is in the other 8 anna thok in which the vendor has no share. The court below has held, and the same plea has been maintained before us, that by reason of the confiscation of the property of Chail Bihari Lal and Banke Bihari Lal the custom of pre-emption which was in existence prior to the confiscation no longer applied to the ownership of the 4 anna share, and therefore when the Government granted this property to Ram Prokash Pande, Ram Prokash had no right of pre-emption whatsoever under the custom in any portion of the remaining 12 anna share. In the circumstances of the present case we do not think there is any force in this contention. In the year 1860 when Ram Prokash was a co-sharer in the village the custom was set forth, in exactly the same manner as it had been in the year 1833. In the year 1884 when the custom was again set forth, but with considerably more detail, the Brahmans were still co-sharers in the village, and the fact that the prior right of pre-emption was given to the co-sharers of the same family is a strong indication that when that minima, khswat was dictated by the co-sharers, the latter contemplated that property owned by members of the Brahman family ought to be transferred and should go primarily to another member of that family. In the present case the vendor was a member of the Kayasth family whose property had never been confiscated and whose property was still within the custom. The Brahman pre-emptors are co-sharers in the village and they come well within the custom as set out in the wajib-ul-arz. In this view in our opinion the plaintiff's claim as against the vendee, who admittedly is an entire stranger, ought to have been decreed subject to the right of the rival pre-emptor.
6. In regard to the contest between the rival pre-emptors the question is, which, if either of them, has a prior right to pre-empt. Ganaga Prasad Pande and Durga Prasad Pande are co-sharers in same thok as the vendor. Musammat Adhar Kunwari, as noted already, is a co-sharer in the other thok. She claims preference on the ground that she is both ' Karibi wa, khandani ' with the vendor. She put forth her own pedigree, which is printed at page 20 of the respondent's book. Assuming it to be correct, on her own showing she is 12 degrees removed from the vendor, and such relationship as exists between them is through a female, the daughter of Lalji, the son of the common ancestor Kesri Singh. As ordinarily understood she could hardly be called a khandani, but oven assuming that the word has been used loosely, it would be impossible to say that she was Karibi being at least 12 degrees removed from the vendor. In our opinion she has failed to show that she has a preferential right, and as she is a co-sharer in another thok her rights are inferior to those of the appellants, Durga Prasad and Ganga Prasad.
7. The result of the appeal will, therefore, be that the claim of Durga Prasad and Ganga Prasad Pande for possession of the property sold is decreed conditional on their paying the sum of Rs. 6,066-7-0 into court within a period of three months from to-day's date. If they so deposit the money, they will recover their costs in all courts. On the other hand, if they fail to fulfil the condition their suit will stand dismissed with costs in all courts, and in case of their default Musammat Adhar Kunwari will hare a further period of one month from the end of the period allowed to Ganga Prasad and Durga Prasad within which to deposit the sum of Rs. 6,200, which sum she had offered to pay to the vendee, if she wishes to take the property. If she fails to pay within the time allowed, her suit will stand dismissed with costs in all courts. If she deposits the amount, then she will get her costs in the court below from the vendee.