Lindsay and Sulaiman, JJ.
1. This appeal raises a somewhat difficult question of interpretation in connection with the provisions of a certain wajib-ul-arz relating to pre-emption.
2. According to what is stated in the wajib-ul-arz, an the occasion of a transfer, the first right to take the property is given to a class which is defined in the wajib-ul-arz as 'shurkayan shikmi.' In is provided that in case the members of the first class decline to accept the offer of the property then the offer is to be made to the second class of persons who are described as 'digar malikan thok o mahal ke.' A great deal of controversy has arisen regarding the meaning to be attached to the words 'shurkayan shikmi.' We have been referred to a decision of a Bench of this Court reported in Abdul Shakur v. Mendai (1901) I.L.R. 23 All. 260. In that case it was sought to attribute to the expression 'hissedaran shikmi' a meaning derived from blood relationship. In other words the suggestion was that hissedaran shikmi were people who had issued from the same 'shikam'; that is to say, the expression was used in the same sense as the English expression 'uterine brothers.'
3. This interpretation was definitely rejected by both Judges in that case and on the interpretation of the wajib-ul-arz in that case it was held that 'hissedaran shikmi' meant in that particular case co-sharers in the same khata, the khata being a smaller sub-division of a patti. A patti is, in the ordinary acceptance of the term, a smaller division than the thok.
4. On the other hand it was decided by another Bench of this Court in the case reported in Bahal Singh v. Mubarak-un-nissa (1907) 5 A.L.J. 52, that the words 'shikmi shurkayan' are intended to denote relatives by blood and not co-sharers in any sub-division of a mahal. We have, therefore, a divergence of opinion regarding the matter now before us and it is open to us to take our own course. The interpretation put on this expression in the case in 5 Allahabad Law Journal does not commend itself to us.
5. We cannot agree that in any circumstances the expression 'shikmi shurkayan' was ever intended to apply to persons who are connected by blood relation.
6. We agree with the view which was taken in the earlier case and we therefore hold that in the present case the words 'shurkayan shikmi' should be interpreted in a similar sense.
7. It is indeed true that the language of the wajib-ul-arz with which we are now dealing is not identical with the language of the document which was before the earlier Bench, but, having regard to all the circumstances, it seems to us that the only meaning of which the expression is susceptible here is the meaning which was given to it in the judgment of Sir AETHUR STRACHEY and Mr. Justice Banerji.
8. If we look at the language of the wajib-ul-arz itself this construction appears to be the only reasonable one.
9. We have already stated that the second class of preemptors consists of 'other proprietors of the thok and mahal.'
10. It follows from the use of the word 'digar' in the second category that the persons who are described in the first class as 'shurkayan shikmi' must also be proprietors of the thok (malikan thok).
11. How then are we to distinguish between the proprietors of a thok who are specified in the second division? There must obviously be some basis of classification, and in our opinion that basis is to be found in the word 'shikmi.' And interpreting that expression it seems to us that the only reasonable meaning which it can bear is that the persons who are described as 'shurkayan shikmi' are persons who, being proprietors in the thok, are brought into a closer relationship than proprietors of the thok by being included in a sub-division of the thok, as, in this instance, a khata. The principle of decision which was adopted in the earlier of the two reported cases applies here. We quote the following from the judgment of the learned Chief Justice in that case see page 262 of I.L.R. 23 Allahabad:
The primary idea, as Mr. Justice Banerji has said is inclusion; that is to say, the hissedaran shikmi must in some way or other be connected with the vendor by reference to inclusion in something which contains them both, such as, in the case before us, in this khata in which the shares of both are included.
12. Applying this interpretation to the wajib-ul-arz now before us, we must hold that the decision of the court below is erroneous. The facts are these: The sale sought to be preempted was made on the 2nd of January, 1920, and looking at the sale-deed it appears that two items of property were sold, namely, items out of two distinct khewats or sub-divisions of the thok, namely, Nos. 265 and 269.
13. It is proved beyond all dispute that the plaintiff in this case and the vendor are co-sharers in one of these khewats, namely, No. 269.
14. At the time this transfer was made the purchaser was a stranger to the village but subsequently he acquired by a gift a share in thok Ansaryan in khewat No. 323.
15. It may be mentioned that khewats Nos. 265 and 269 are also in thok Ansaryan.
16. This property which the vendee has acquired has undoubtedly constituted him one of the proprietors of the thok, and unless the plaintiff has got a superior right the suit must fail.
17. For the reasons given we think that the plaintiff must be deemed to have a superior right with respect to the item of property comprised in khewat No. 269. The reason is that both the plaintiff and the vendor are linked more closely together by their being included in one khewat or khata. In our view of the case therefore the correct decision should be that the plaintiff is entitled to have his claim decreed regarding the item of property sold in khewat No. 269.
18. As regards the item comprised in khewat No. 265 he is in no better position than the vendee, and the suit regarding that item should be dismissed.
19. The result is that the case must be sent back to the lower appellate court for decision of the suit on this basis. The court will now proceed to decide the other questions outstanding between the parties. Costs will abide the event.