1. In this case we are concerned with the interpretation of two wajib-ul-arzes. The question to be decided is whether the plaintiff, who was Nasir Ullah Khan now represented by the present appellants, Maqsud Ali and others, was entitled to a preference in the matter of exercising a right of pre-emption. The vendor of the property in dispute was own brother of Nasir Ullah, and the purchaser Kabul Khan who is now represented by two defendants, Ahsan Ali and Abdullah, was a co-sharer in the village and also a relation, but a distant relation, of the vendor.
2. The Court of first instance gave the plaintiff a decree for pre-emption on a finding that on the language of the record of custom as contained in the two wajib-ul-arzes the plaintiff as own brother of the vendor had better right than the vendee who was a co-sharer only and in any case a more distant relation. The lower appellate Court has reversed the finding of the Court of first instance on this point, being of opinion that the plaintiff as own brother of the vendor had no better right. Another question was raised in the Court of first instance. It was pleaded by the vendee that the plaintiff had full knowledge of the sale sought to be pre-empted and that he had acquiesced therein so as to be no longer entitled to assert a claim for pre-emption. The Court of first instance held that the transaction now in dispute was carried out without the knowledge of the plaintiff and that there was no reason to debar him from maintaining the suit. On this question of the consent or acquiescence of the plaintiff the judgment of the lower appellate Court is silent.
3. We have decided to deal with this question of fact ourselves as it is not worth while sending the case back to the lower appellate Court for finding. In all probability the case would come before some other Judge than the one who heard the appeal.
4. Dealing with the first question, namely the preferential right of the plaintiff that has to be considered, in connection with the two documents which are field, Exhibit 3 and Exhibit C. Exhibit C is a copy of the document known as the wajib-ul-arz prepared by Mohar Singh. In this document there is a classification of pre-emptors which reads as follows : (1) Own brothers; (2) Co-sharers in the same patti; (3) Co-sharers in other pattis. The second document, namely, the copy of the. wajib-ul-arz prepared at the time of Munshi Nasir Ali Khan, gives only one classification of pre-emptors, namely : 'Own brothers and co-sharers of the village.' It is provided that if none of these people, wish to preempt a sale may be made to strangers. The learned Subordinate Judge laid great stress on the wajib-ul-arz of Nasir Ali Khan, that being later in date, although as we understand, the difference between the dates of the preparation of these two wajib-ul-arzes cannot have been more than six or seven years. The Judge was of opinion that on the language of the later wajib-ul-arz own brothers and co-sharers in the villages were all lumped together in one category in such a way that a brother could have had no preferential right over any other person who happened to be a co-sharer in the village. On the other hand, it is equally clear that in the wajib-ul-arz prepared by Mohar Singh the own brothers of the vendor stood in a category by themselves and had preferential right over other persons who were co-sharers in the patti or in the village. We are not disposed to take the view taken by the Court below, and it seems to us that the two wajib-ul-arzes ought to be read together. We can hardly think that, having regard to the fact that the earlier record was made in favour of own brothers, the later record can have been correctly prepared if it is meant to indicate that the own brothers of the vendor were put on exactly the same footing as any other co-sharer in the village. It seems to us the more reasonable construction to adopt that the right of pre-emption recorded in these two documents was in fact the same, and all that appears is that when the later record was prepared it was prepared in a less careful manner than the one which preceded it. On the whole, we think that a distinct case is made out for holding that under the custom of preemption, which apparently is not denied, an own brother of the vendor has a better right to take the property than a co-sharer in the village. That being so, the late plaintiff Nasir Ullah was entitled to preempt.
5. There remains the other question which is a question of fact. Nasir Ullah denied that he is in any way acquiesced in the sale which he was seeking to pre-empt. The sale-deed in dispute was executed, on the 9th February 1921, and was registered on the same date. It is proved that on the same date, that is to say, 9th February 1921, the plaintiff Nasir Ullah and his brother Muhammad Khan and one Daulat executed another sale-deed relating to property in another village and this deed was executed in favour of the same purchaser Kabul Khan. It was sought by means of this later document and also by means of oral evidence, to show that the plaintiff was fully cognizant of the sale which he is now claiming to pre-empt, and that, therefore, his suit is not maintainable. The document relating to the sale in suit was attested by two witnesses who were examined in Court. They deposed that the plaintiff was present on the 9th February 1921, when both documents were being drawn up by the same seriba. They do not however say that the plaintiff was given any opportunity of taking the property or that such an offer having been made was refused by him. All that the evidence of witnesses amounts to is that he was present on the spot. Another witness was called who went further than this. He deposed definitely that the plaintiff was present when the sale-deed in dispute was executed and that he had been asked to take the property and had refused on the ground that ho had not the money.
6. It is the fact that this second document relating to the other village, a document which was registered on the 2nd of March 1921, bears the signature of Nasir Ullab. He was asked in the witness-box to explain this and he deposed that he put his signature to it, not on the 9th February 1921, but on the date on which the document was presented for registration, and this statement the Court of first instance believed. It would be difficult for us to differ on this matter with the finding of the first Court. There is something suspicious about this other document of 9th February 1921, which is marked Exhibit D. We have already mentioned that there were three vendors under this deed, Muhammad Khan, Nasir Ullah Khan and Daulat. The document as it stands hears the signature of Muhammad Khan and the thumb-impression of Daulat. Between these two signatures we find a second signature made by 'the vendor Muhammad Khan and underneath this is written the name of Nasir Ullah Khan. It looks to us, therefore, as if the signature of Nasir Ullah had been appended to this document at a later date and it is a suspicious circumstance which has not been explained, that the signature of one of the vendors should appear twice on the document. On the whole, we think that the Court of first instance was justified in coming to the conclusion that there was no reliable evidence to show that the plaintiff had acquiesced in the dispute and that he was thereby debarred from asserting his claim for pre-emption. Our finding of fact is accordingly in agreement with that of the Court of first instance. It follows from this that the appeal is allowed. We set aside the decree of the Court below and restore the decree of the Court of first instance. The plaintiffs-appellants will be entitled to their costs here and in the lower appellate Court and the costs in this Court will include fees on the higher scale.
7. We understand that after the first decree the pre-emption money was deposited in Court. Whether it is there yet or not we do not know, but if it is not, we think that the plaintiff ought to be given an opportunity to redeposit the money. We give them two months' time from the date of this decree. In default of deposit so made the suit will stand dismissed with costs in all Courts including in this Court fees on the higher scale.