1. The question for consideration in this case is whether under the custom of pre-emption prevalent in the villages in which the property sold is situated the plaintiff is entitled to a right of pre-emption in the case of a sale otherwise than in favour of a stranger to the co-parcenary body. The property sold stood in several villages the wajib-ul-arzes of which have been produced in the case. The sale was made in favour of a co-sharer of the village. The plaintiff was also co-sharer; but he claimed a preferential right by reason of his being a paternal kinsman of the vendor. The Court of first instance was of opinion that the wajib-ul-arzes of the villages in question gave him a right of preference over the vendee but the lower appellate Court found that no such right of preference was given where a sale was made to a member of the co-parcenary body. The wajib-ul-arz of the village Madho Patti Khas provides that if any co-sharer wants to transfer his share the right of purchase shall belong first to a paternal kinsman who is a oo-sharer ek jaddi sharik and then to the co-sharers of the village on payment of the proper price in preference to a stranger. The wajib-ul-arz of the village Madho Patti provides that in the case of a transfer of property the right of pre-emption shall belong in the first instance to a co-sharer who is a Paternal kinsman Sharik ek jaddi then to the co-sharers in the property itself and after them to the co-sharers of the village in preference to a stranger on payment of such a price as a stranger pays. The wajib-ul-arz of Alampur village provides that if a co-sharer wants to sell his share the right of purchase shall belong in the first instance to a co-sharer who is a paternal kinsman sharik ek jaddi then to a co-sharer of the patti, and then to a co-sharer of the village on payment of the proper price in preference to a stranger.
2. In each of these wajib-ul-arzes the right of purchase seems to have been given in the order mentioned in the event of a sale to a stranger and though the different categories in which priority is to be exercised are mentioned, they are subject to the main qualification that the question of priority would only arise where a sale to a stranger is made. The wajib-ul-arz in the present case is very similar to the wajib-ul-arz in Sheo Balak Singh v. Lachmi Dhar (1901) 23 All. 427. In that case it was held that in the absence of specific words giving priority in the case of a sale by a co-sharer belonging to one category to a co-sharer belonging to another category a clause for pre-emption, defining the rights of co-sharers inter se as against a stranger could not be construed so as to give a right of pre-emption to a co-sharer of a superior class upon a sale to a co-sharer of an inferior class. The same principle has been applied in Narain Saran Singh v. Sidh Narain Singh (1908) 5 A.L.J. 655. The lower appellate Court was right in refusing to allow pre-emption in these circumstances.
3. The appeal therefore fails and is dismissed with costs including in this Court fees on the higher scale.