1. This is the plaintiff's appeal against the judgment and decree of Mr. H K. Ghoshal, Civil Judge, Faizabad, dated 22nd September 1942.
2. Mt. Kalapraji, widow of Hari Ram, own nephew of the plaintiff-appellant, sold on 28th June 1940 some shares in immovable property in villages Madarbhari and Arhanpur to Salig Earn, now represented by his legal representatives, and Baldeo, Raghunandan and Beni Madho. The plaintiff filed a suit for pre-empting both the properties alleging a preferential right in both villages and also stated that the real consideration of the sale-deed was only Rs. 600 and not Rs. 2,500. The trial Court held that the plaintiff had a preferential right to pre-empt; in village Madarbhari and its proportionate price was Rs. 600-12-0. It held that although the vendor was related by marriage to the plaintiff; yet this was not the kind of relationship, contemplated in Section 9, Oudh Laws Act, and that in other respects both the pre emptor and the vendees had equal rights. These equal rights were determined by lots and the plaintiff lost. In the result, the suit for pre-emption was decreed in respect of Madarbhari property only on payment of Rs. 600-12-0. The plaintiff went up in appeal and the decree of the trial Court was affirmed.
3. In this appeal two points have been raised. (1) that in view of the relationship of the plain-tiff to the vendor, he had a preferential right to preempt, and (2) that by some mistake the proportionate amount payable for village Madarbhari has been wrongly shown as Rs. 600-12-0 instead of Rs. 534-12-0.
4. As regards the first point, it has been urged by the learned Counsel for the appellant that although in village Arhanpur both the preemptor and the vendees were co-sharers, yet because the plaintiff was related to the vendor, Mt. Kalapraji, by marriage, his rights should have been considered superior and his claim should have been decreed. The learned Counsel says that the relationship, mentioned in Section 9, is not necessarily a relationship by blood but it should include relationship by marriage also. He stresses that, in case of Hindus, a Hindu woman on marriage belongs to the family of her husband and is treated as his sapinda and as sapindas are all blood relations, she should also be considered a sapinda of the sapindas of her husband. Had there been any question about the inheritance to or succession to property, there might have been some force in this kind of argument, but in this case we are not dealing in fact, with the right of inheritance or succession but only with the right of pre-emption and under Section 3, Oudh Laws Act. Hindu Law does not apply to matters of pre-emption. In Section 9 the preferential right is to be determined between the co-sharers in order of their relationship to the vendor The words, 'relation' or 'relationship have not been defined in the Act. The word 'relation' is a very general and comprehensive term and may include any and every relation that arises in social life. The term is defined by lexicographers signifying a person connected by consanguinity or affinity. We have, however, to define the meaning of the word, 'relationship', as used in Section 9. The preference depends upon the order of relationship and this can, in my opinion, mean only relationship by blood. I cannot see how the order of relationship can arise in case of relationship by marriage. In Mirza Abdul Rahman Beg v. Mirza Barket Beg and Anr. A.I.R. (14) 1927 Oudh 474 it has been held that the words, 'in order of their relationship' in Section 9, Oudh Laws Act, simply mean 'according to the degree in the line of relationship with the vendor', and that the relationship mentioned in Section 9, Oudh Laws Act, means 'consanguinity from a common stock'. The learned Judges in this case accepted the meaning of the word, 'relationship' as relationship by blood as held in Karam Russain v. Raghubar Dayal and Ors. 4 C.C. 397 and ML Jafri Begam v. Mt. Gulab Kuar and Anr. 7 C.C. 6. It may be pointed out that in Mt. Jafri Begam's case 7 C.C. 6 the vendor was the widow of one R whose father was a first cousin of the vendee and the vendor and the vendee were both Hindus and nonetheless it was held that this did not create the relationship of the kind contemplated in Section 9, Oudh Laws Act. The learned Counsel for the appellant stated that the point taken by him that on marriage a Hindu woman occupies the position of a sapinda was not considered in the above mentioned case. This is so, but I have already pointed out that such a consideration does not really arise in the matter of preemption. Karam Husain v. Raghubar Dayal and Ors. 4 C.C. 397 was a case in which the two vendors and the pre-emptor were Muslims and the pre-emptor was the wife of one vendor and the co-wife of the second vendor and it was held that consanguinity from a common stock was to be proved to entitle the plaintiff to a preferential right. It will thus appear that in Oudh the law has always been that relationship in Section 9, Oudh Laws Act, means relationship by blood and not by marriage. In this view of the matter, the decisions of the Courts below in not recognising the preferential right of the plaintiff-appellant were correct.
5. As regards the second point regarding the proportionate price payable in respect of Madars bhari property, the learned Counsel for the appellant has stated that admittedly out of the total consideration of Rs. 2,500 a sum of Rs. 285 has not yet been paid by the vendees and if. the proportionate price for village Madarbhari is considered keeping in view this point the price is really Rs. 534.] 2-0. The learned Counsel for the respondent admits that that is so and the proportionate price is really Rs. 534-12-0.
6. The result is that the appeal is allowed in part and the decrees of the Courts below are modified to this extent that the plaintiff-appellant shall be entitled to get possession of Madarbhari property on payment of Rs. 534-12-0 and not Rs. 600-12-0. This amount together with the costs awarded by the two lower Courts shall be paid in the trial Court on or before 22nd November 1948, and if there is a default in payment, the suit of the plaintiff shall stand dismissed with costs. As the plaintiff in this appeal has only succeeded partially, I direct that the parties shall bear their own costs.