1. This is a plaintiff's appeal arising out of a suit for pre-emption in Kurnaun. The Preemption Act does not apply but the suit was brought on the basis of the Customary law. Jawaru and Badru were' two brothers after whom their widows, Mt. Dauli and Mt. Katgi, got possession of the estate, half and half. It is assumed that they were in separate possession of these half shares. Mt. Katgi sold her half share on 4th November 1929 to Udai Singh and others. The present suit was instituted in the first instance by Mt. Dauli for preemption of the same. An objection was taken in the written statement that Mt. Dauli had lost all interest because of a gift made by her in favour of her daughter Mt. Bachauli. An application was promptly filed that the name of Mt. Bachauli should be substituted, in place of Mt. Dauli and that Mt. Dauli should be allowed to act as the next friend of her daughter. This application was allowed. The lower appellate Court has remarked that this procedure was somewhat irregular, but inasmuch as the name of Mt. Bachauli vas substituted before the expiry of the period of limitation the irregularity cannot be fatal to the suit.
2. The suit was decreed by the first Court holding that Mt. Bachauli was a 'kinsman' of Mt. Katgi and therefore had a preferential claim. The Court also held that she' was relative of the vendor within the third degree. On appeal the learned Judge has come to a contrary conclusion. He has held that the plaintiff could not be regarded as 3 relative of the vendor within the third degree because she was a female and not a male although he was of opinion that she was within the third degree, It seems to us that inasmuch as it is admitted in the plaint that. Mt. Bachauli is married although her husband is living in the house of Mt.. Dauli as ghar jawain, it is not possible to hold that she is a 'kinsman' of Mt. Katgi. If Mt. Katgi has become a member of the family by her marriage, on the same principle Mt. Bachauli has gone out of the family. It is therefore wholly unnecessary to decide in this case whether the word 'kinsman' in the record of the custom made by Mr. Stowell in his Land Tenure of Kumaun Division at p. 46 includes a kinswoman.
3. As regards the question whether the plaintiff can claim a preferential right on the ground of her being a relative of the vendor within the third degree,, we are opinion that a person would, be a relative whether male or female. But to have the preference the person must be a relative of the vendor within the third degree and not merely a relative of the deceased, husband of the vendor. Mr. Stowell on p. 47 has pointed out that the method of counting the degree of relationship is to [count back to the common ancestor treating him as No. 1. Mt. Bachauli is no doubt within the third degree of the father of Jawaru and Badru, but Mt. Katgi is not a descendant of that ancestor. We are therefore unable to hold that she can be regarded as a relative of the vendor within the third degree. The appeal accordingly fails and is dismissed with costs.