Lindsay and Sulaiman, JJ.
1. This is a defendants' appeal arising out of a suit for pre-emption. The plaintiff relied mainly on an entry in the wajib-ul-arz of 1272 Fasli. The defendants denied the existence of any such custom.
2. The court of first instance came to the conclusion that, although the wajib-ul-arz raised a prima facie presumption of the existence of custom, nevertheless there was internal evidence in the clause relating to pre-emption which negatived it. It held that no custom had been established and accordingly dismissed the suit. On appeal the learned District Judge came to a different conclusion. He held that the custom was established and remanded the case for trial of the other issues raised.
3. The entry relied on by the plaintiff, first of all, contains a recital setting forth the right of pre-emption and the way in which the price is to be settled in case of dispute. The clause winds up by saying that if a stranger has inherited property from an issueless co-sharer he would not be entitled to the right of pre-emption. There is no dispute as to the correct interpretation of this portion of the clause. It undoubtedly means that the right of pre-emption is denied to a person who has become a co-sharer by collateral inheritance. This portion of the clause cannot be detached from the other portions of it and in fact it is part of the whole entry regarding the existence of the right, of pre-emption. In the case of Balwant Singh v. Mare Singh (1923) 21 A.L.J. 542, we expressed the view that although a wajib-ul-arz raises a prima facie presumption of the existence of the custom it recites, nevertheless if it contains certain other matters relating to that right which cannot possibly form the subject of a custom, there would be no justification for presuming that the entry is one of custom. We are of opinion that this part of the clause is of that nature. It is impossible to conceive of a custom which makes distinctions between persons who have inherited by collateral succession and persons who have inherited by direct descent. All such persons become co-sharers in the village and have equal status and rights in the eye of the law. This being the view we are inclined to agree with the first court that the entry in the wajib-ul-arz was a record of contract which had ceased to be of any effect after the expiry of the settlement. This being the sole evidence in the case the plaintiff has failed to establish the custom alleged by him.
4. The result, therefore, is that this appeal is allowed, the order of the lower appellate court is set aside and the decree of the court of first instance restored with costs in all courts.