Mukerji, Ag. C.J.
1. This is a pre-emption appeal and the appellant is the pre-emptor. The appellant and the vendor are uterine brothers. The purchasers-are a third party, strangers to the family. The suit was resisted on two grounds, namely, the sale was effected with the consent of the plaintiff and secondly the plaintiff and the vendor formed a joint Hindu family, and therefore, according to a ruling of this Court, the plaintiff was not entitled to maintain the suit. The lower appellate Court held that it was not proved that the plaintiff was a consenting party to the sale. But it held that the plaintiff and the vendor were members of a joint Hindu family as governed by the Mitakshara law, and therefore the plaintiff was out of Court. In this Court it has been urged that in Kumaun Mitakshara law does not prevail in its strictness and reliance has been placed on the book known as Kumaun Local Customs, the author of which is Mr. Panna Lall, I.C.S. Mr. Panna Lall. was especially deputed to make a collection of the local customs, and therefore his book may be regarded as of some authority. Mr. Panna Lall has found, as he states at p. 75, that 'the incidence of a Kumaun co-parcenary is widely different from that of the Mitakshara. ' Then he states at p. 68, para. 260 that
the share of a coparcener always descends to his widow in the absence of male issue, even-in a joint family. In this respect (as in one or two others) Kumaun resembles the Dayabhaga School of Bengal rather than the Mitakshara. This practice is general and has been found in the-highest as well as the lowest castes.
2. In the case before us one brother has sold a property and another brother seeks its pre-emption. If it be true that the members of a joint Hindu family in Kumaun held property as the members of a joint family property do in Bengal, that is to say, as tenants-in-common, there will be no difficulty in one brother pre-empting his brother's share which has been sold by the latter. In that case it cannot be said that the vendor and the pre-emption are virtually one and the same person. It is on this principle that this Court has in several cases disallowed a joint member of a Hindu family from pre-empting a sale made by another member of. the same family. It seems to be desirable that the evidence already adduced should be looked at from the point of view which has been made prominent in Mr. Panna Lall's book and that the parties should be granted a further opportunity to adduce evidence either in support of or to controvert the alleged custom. Pandit Nanak Chand on behalf of the respondents has requested us to let him reopen the question of plaintiff's consent and to allow him to adduce further evidence on that point. But this is a request which we cannot grant. The parties adduced evidence on that point of fact (whether pre-emptor consented) and the lower appellate Court arrived at a conclusion which is a conclusion of the matter. Pandit Nanak Chand has further asked that the costs of this appeal should not be allowed to the appellant in case of his success and that in any case the appellant should pay the costs of the respondents in this Court. This case as now presented was never presented in the Court below. For this the plaintiff alone is responsible. We therefore think that the request as to costs made by the counsel for the respondents is a proper one. In the result, we remit the following issue to the Court below for determination, parties being allowed to adduce fresh evidence. In arriving at its conclusion the Court below will have regard to the remarks of Mr. Panna Lall made in the book already mentioned.
3. Issue. Whether the plaintiff and defendant 3, the vendor, held their property as tenants-in-common or as joint tenants under the strict rule of Mitakshara? Three months are allowed for return of the finding and ten days will be allowed for filing of objections. The appellant will pay the costs of this appeal to the respondents at all events up to this stage but further costs will be at the disposal of the Bench finally hearing the second appeal.