1. This is a plaintiffs' appeal arising out of a suit for pre-emption of property sold to three vendees under a sale-deed, dated the 23rd January 1922. On the 12th January 1922, the present suit for pre-emption was instituted in which all the three vendees were impleaded. Later on it was discovered that one of the vendees was a minor and on an application made by the plaintiff's a guardian and litem was duly appointed by the Court. This appointment, however, was after the expiry of one year from the date of the registration of the document. The plaintiff relied on the wajib-ul-arz of 1870 and alleged that it recorded a custom of pre-emption. He also disputed the genuineness of the amount of consideration mentioned in the sale-deed. The defendants, on the other hand, pleaded that the claim as against one, and, therefore, as against all, was barred by limitation, and also that there was no custom, of pre-emption in the village. They further pleaded that the consideration set forth in the sale-deed was true
2. The learned Subordinate Judge, in a very short judgment, has disposed of only, two issues leaving the others undecided. He has held that inasmuch as the guardian and litem of one of the defendants was appointed after the expiry of the period of limitation the claim was barred by time as against him. He has held that having regard to the language of the wajib-ul-arz no custom was established.
3. We are unable to agree with either of the views expressed by the Court below. It is difficult to see how the claim can be barred by limitation. The real parties to the suit were the vendees themselves and all of them were impleaded within the time allowed. The more fact that the guardian of one of the vendees was not appointed by the Court till after the expiry of the period would in no case be fatal. Under Order 32, it is the duty of the Court, when it is brought to its notice that one of the defendants is a minor, to appoint a guardian, and as has been held in the case of Rup Chand v. Dasodha  30 All. 55 the subsequent appointment of a guardian is not fatal as a plea of limitation. As regards the question of custom the only evidence in support of it is the wajib-ul-arz of the year 1870. This settlement expired about the year 1900 when the new wajib-ul-arz under the Circular of the Board of Revenue could not contain an entry either way. The heading of para. 8 which embodies a right of pre-emption is as follows:
Relating to transfer of, property by means of mortgage, sale, gift, inheritance and custom of pre-emption.
4. The opening portion of the paragraph which deals with the question of custom is as follows:
That in future, every co-sharer has a right to transfer the whole or a portion of his property. Up till now no pre-emption suit was instituted on behalf of any co-sharer and decided. In future if any co-sharer likes to sell his property, he will at first, sell it to his co-sharer and subsequently to the co-sharers in the village, and if they also refuse to purchase it, he may 'sell it to any one he likes. If there shall be any dispute between the vendor and the vendee regarding the difference in price, the co-sharer shall have to pay the same price which a stranger would be willing to pay.
5. The rest of the paragraph deals with customs of adoption and inheritance with which we are not directly concerned. The concluding portion of that paragraph indicates that the proprietors of the resumed land, who are Mahomedans are governed, as regards inheritance, by the Mahomedan Law. In our opinion there is nothing in the language of this clause which would rebut the prima facie presumption that it is a record of a custom. The statement that no suit for preemption had been instituted so far is a more statement of fact which is not conclusive either way. Similarly the use of the words 'in future' in no way indicates that it was for the first time that (the co-sharers were expressing the desire 'that a right of pre-emption should exist. This expression found place in the wajibul-arz before their Lordships of the Privy Council in the case of Digambar Singh v. Ahmad Sayed Khan A.I.R. 1914 P.C. 11 and in spite of its occurrence their Lordships were inclined to hold that there was nothing in the clause which militated against the existence of a custom. The opening portion of this clause is similar to the opening portion of the clause in the wajib-ul-arz in F.A.F.O. No. 17 of 1925, decided on the 25th June 1925, by a Bench of this Court of which one of us was a member. The Bench was inclined to hold that it was a record of custom. This view is now strengthened by the recent pronouncement of their Lordships of the Privy Council in the case of Sheo Baran Singh v. Kulsum-un-nissa A. 1. Rule 1927 P.C. 113, decided on the 4th March 1927. We are, therefore, of opinion that the pre-emption arising from the entry in the wajib-ul-arz has not been rebutted, and there is no reason to suppose that the settlement officer in making the entry under the heading custom of pre-emption' did not intend to record it as such.
6. As remarked above, the other issues have been left undisposed of by the Subordinate Judge. The defendants' plea that there had been a refusal cannot be sustained. The only evidence in support of it is the solitary statement of the defendant Rudra Singh, who is an interested party and cannot be believed on this point. There being no other evidence to corroborate this statement we find that the plaintiffs' allegation that the amount entered in the sale-deed was fictitious has not been borne out by any satisfactory evidence. The vendee has deposed that he purchased the property at the rate of five annas per cent. which is not at all a high value, and that the whole consideration was genuine. He has, however, admitted that Rs. 5,000 left in his hands for payment to Raja Lalta Prasad have not yet been paid by him because there was some dispute. With the exception of this item, he has deposed that the rest of the consideration passed. We find that there is no evidence to result his statement and the acknowledgment of the vendor as contained in the sale-deed. We must accordingly hold that the whole of the consideration, was genuine and that out of it Rs. 5,000 have not yet been paid by the vendees to Raja Lalta Prasad.
7. The result, therefore, is that we allow the plaintiffs' appeal, and setting aside the decree of the Court below decree the plaintiffs' claim for pre-emption on payment of Rs. 1,500 in Court within six weeks from this date to the credit of the vendees. The plaintiffs will be liable to pay the remaining Rs. 5,000 to Raja, Lalta Prasad afterwards. If the amount is deposited in time the plaintiffs will have their costs in both Courts, but if there is default in deposit the suit will stand dismissed with costs in all Courts.