1. This is a defendant-vendee's appeal arising out of a suit for pre-emption. The three vendors are the sons of one Jatwar Singh, a Brahmin by caste. The plaintiffs are the two first cousins of the vendors. Their case is that on the 26th of July 1915 the vendors sold this property to Raja Makund Singh really for the sum of Rs. 8,000 but falsely entered a sum of Rs. 11,000 in the sale-deed; that there is a custom existing among the proprietors of the village under which the plaintiffs by reason of their blood relationship alone are entitled to pre-empt. They, therefore, claim the right to pre-empt not on the basis of co-ownership but simply on the basis of blood relationship. The suit was instituted on the 26th of July 1916, that is, on the last day of limitation. The vendee contested the case. He denied that there was any such custom; he pleaded that Rs. 11,000 was the true consideration and he further urged that the plaintiffs had been offered the property prior to his purchase and had refused to purchase. The case as we have said above, was instituted on the 26th July 1916. The Court below completed the case up to the arguments on the 18th of September 1917. It thereupon postponed the case for delivery of judgment. It did not deliver judgment until the 21st of October '1918.' The recording, of the evidence was completed on the 1st of February 1917 and the case was postponed some 3 or 4 times then for the hearing of arguments and the arguments, as we have noted above, were not heard until the 18th of September 1917. The Court below held in favour of the plaintiffs on the question of austom and consideration and also on the question of the alleged refusal to purchase. It held that there was a custom binding on the parties, under which the plaintiffs were entitled by reason of their relationship to take the property in priority to an outsider. It also held that the true sale consideration was Rs. 8,000, and not Rs. 11,000 and it held that no offer had been made to the plaintiffs and they had not refused to purchase, Naturally, the judgment having been delivered so long after the hearing of the arguments and the recording of the evidence, there are several mistakes in it.
2. The defendant urges before us:
(1) That the evidence on the record establishes no custom under which the plaintiffs have any right to pre-empt on the basis of their relationship.
(2) It is next strongly urged that the lower Court's finding as to the sale-con-sideration is wrong; that there is no evidence whatsoever upon the record to show the market price; that the evidence of the solitary witness Aaharfi Lal is unworthy of belief and utterly insufficient to shift upon the defendant the burden of proving the true consideration; and lastly, it is urged that the evidence produced by the defendant is credible and supports the contention that Rs. 11,000 was the true consideration. The question of refusal to purchase has not been very strongly pressed, although our attention has been sailed to the evidence on the point.
3. Coming first to the question of custom, there are certain points which have considerable bearing upon the question. The plaintiffs filed an extras from the wajib-ul-arz of 1864. The defendants filed the whole wajib-ul-arz of the year 1864. There have been three settlements in this village. One in 1864, one in 1883 and one in 1903-1904. The wajib-ul-are of 1864 contains a brief history of the village. The then Lambardars and a fairly large body of co-sharers dictated that wajib-ul-arz. They stated therein that this village Nainpura had been founded by their ancestor, one Nain Sukb, a Kayesth by caste, that it was he who had turned the jangle into cultivation and had settled the village and that the Zemindari of this village had continued in the family without interruption and without the entry of any stranger from outside, and on the date of the wajib-ul-arz the whole body of co-sharers consisted of Kayesths, the direst descendants of the said Nain Sukh. In one paragraph of the wajib-ul-arz headed 'Mention of the right of pre-emption,' there is an entry to the following effect:
When a so-sharer wants to transfer his share, first his near brothers shall have a right to purchase it, then the co-sharer of the patti and then again the co-sharers in the village. If these persons refuse to purchase the property, then the transferor shall be at liberty to sell, mortgage or make over the property to any one he wishes.
4. This, so far as the document goes, is a perfectly clearly worded statement and according to its simple meaning the near brother, irrespective of whether or not he was a co-sharer, would have a right to take the property of a so-sharer who wished to transfer it. It has been argued before us that this really means that the near brother should also be a co sharer and our attention has been sailed to a judgment of a learned Judge of this Court in another case where it was so held, but it is sufficient to point out that the document which our learned brother was there considering had in it language which the present document does not contain and that that language no doubt was such as to be clearly open to the construction that the near relative was also bound to be a co sharer. There is no such language in the present document, and we have no doubt whatsoever that when the co-sharers relied on this custom, they meant that a near brother would be entitled to take the property irrespective of whether or not he was a co-sharer. In the year 1883 the entry made against the heading 'Custom of pre-emption' ran as follows:-- There has been no occasion (for the exercise of the right) in this village but the custom of pre-emption is admitted.' In the year 1883 the co-parcenary body still consisted of the descendants of Nain Sukh. In the year 1893 the co-sharers of this village fell into arrears with their Government revenue. Government apparently attached the whole village, put it to sale and it was purchased in the name of Jatwar Singh Brahmin the father of the present vendors. He apparently was a member of a joint family consisting of himself and his brother and their children, for we find that when mutation of names was effected, the names of both brothers were entered and that finally in the year 1909 there was a partition under which each branch of the family took a half share; the village was then divided into two completely separate mahals; the mahal allotted to Jatwar Singh and his sons is the mahal which is now in dispute, and the whole of it has been transferred to Raja Makund Singh. After the purchase by the Brahmins in 1893 there was a subsequent settlement in 1903-1904,at which time no record whatsoever was made as to the existence of any custom of pre-emption. To prove the existence of the custom the plaintiffs relied upon these old wajib-ul-arzes and pleaded that that custom still existed. The lower Court acceded to this contention. We find it difficult, in fact impossible, to follow its example. It is clear from what we have stated above that the custom which existed among the Kayesth proprietors of this village, under which a near brother was entitled to take the property when it was alienated, was one which had no connection with the co-partnership of the village. It clearly was a custom either of this special family or at the utmost of the Kayesth community in the village There was clearly no necessity for the relation who wished to take the property to have any previous connection with the Zemindari of the village at all. In the year 1893 the whole Zemindar Kayesth community of this village ceased to exist so far as the Zemindari was concerned. They were replaced by a Brahmin family which, of course, had no connection with them and which is not shown to have among its members any such custom prior to the date of purchase. It is not pleaded that subsequently to the acquisition of this Zemindari any sash custom sprang up in this Brahmin family. In fact the evidence shows that the two branches have been at ill-will for a considerable length of time and the partition itself is a further indication of the same. The two branches have separated their rights completely so that one should have no concern or connection with the other. The partition has been completed and is perfect. We find it impossible to conceive that the custom which existed among the Kayesth proprietors continued to exist among the Brahmin proprietors for, as we have pointed out above, this custom had no concern with the ownership of the Zemindari. It, therefore, at the utmost was a communal or a caste or a family custom which could not in any way whatsoever be applied to the Brahmin family which succeeded the Kayesths in the year of purchase. We would note that the present case is a very different case indeed from those in which an outsider comes in and obtains a share in a village and becomes a member of a pre-existing co-parcenary body in which there is an existing custom. In the present case the whole pre-existing co-parcenary body was completely wiped out and replaced by an entirely new co parcenary body. It is impossible to say that the pre-existing customs of the previous body would attach themselves to the new co-parcenary body. The Brahmin co-parnceners were not bound in any way whatsoever by the customs which bound their predecessora-in-title. They did not enter an old pre-existing co-parcenary body, they replaced it, and it is difficult, if not impossible, to hold that where a whole community has been completely blotted out, the customs which prevailed in it prior to its destruction should hold good with another community which comes in and replaces it. The custom of preemption does not attach itself to a property, it is a practice which exists in a certain community and if such a community is entirely eliminated, its customs must die with it. A new community coming in and taking its place would in no way be bound by the old customs. The plaintiffs, as we have said above, have not attempted to show that in their own family or since their acquisition any such custom has arisen among the proprietors of this village. In fact the resent history of the village goes clearly to show that no such custom could possibly have arisen. We, therefore, find on this point in favour of the defendant-appellant.
5. In regard to consideration we should also like to state that in our opinion the decision of (he Court below is wrong. Prima facie the amount entered in the sale deed must be taken to be correct, unless and until the plaintiff has placed before the Court some prima facie evidence which the Court can accept, which would go to throw suspicion upon the amount thus entered, in which case the burden would be shifted, and shifted very easily perhaps, to the shoulders of the defendant to prove the true consideration. In the present case the only evidence tendered by the plaintiffs to shift the burden on to the defendant is the statement of the witness Asharfi Lal Patwari. The lower Court wrote its judgment about one year and nine months after it had heard the evidence and 13 months after it had heard the arguments. Asharfi Lal was an attesting witness to the sale-deed. His story was that the Raja had told him that Rs. 3,000 of the consideration was bogus and he testified to that effect. In respect to this witness the Judge of the Court below remarks as follows:
Asharfi Lal, who has been examined on the plaintiffs' side, is an attesting witness to the sale-deed. Me bears testimony to the fact that the real sale price was fixed at Rs. 8,000 while the excess sum was entered fictitiously in the deed, the vendee having had the fear of pre-emption. This witness is the Patwari of the village Hardoi, whereof the vendee is a resident. It is, therefore, not improbable that the witness should have been in confidence with the vendee and thus have known how the transaction was settled and at what price.' We have examined Asharfi Lal's evidence. The Judge of the Court below apparently overlooked the fact that in his cross-examination this witness had to admit that since the execution and attestation of the sale-deed considerable ill-will had sprung up between himself and Raja Makund Singh. He had given evidence in a criminal case in which some relatives of the Raja were involved and in which they had been convicted and sentenced to six months' imprisonment. He clearly admits the friction which has arisen since. In one part of his evidence he said: 'After the murder case, in the case relating to my residence at Jalaun Tehsil I stated that there was an ill feeling between Raja Makund Singh and myself and I prayed that I might be transferred from that place.' He had to admit that he had made an entry in his diary about the execution of this sale-deed for the sum of Rs. 11,000. But there was no entry of course (nor would one expect to find one) that the true sale consideration was Rs. 8,000. This is the sole piece of evidence on which the Court below has acted as transferring the burden of proof from the plaintiffs to the defendant, We do not think that this evidence is sufficient. It is impossible to place upon this witness' statement the reliance which is necessary for the Court to be 'able to act -as the Court below has done. If so, it would indeed be very simple for a plaintiff to shift the burden by putting forward one false witness to make a false statement. No Court could possibly accept this evidence of Asharfi Lal as good evidence worthy of the slightest belief. The defendant, it is true, produced evidence which, if accepted, would go to show that the full consideration was Rs. 11,000. As the Court, however, has pointed out, there are certain points of suspicion arising in that evidence, as for example, the non-production of the Raja's account-books, the fact that the vendors had actually applied to be declared insolvents and that at that time according to the defendant two large sums of money of Rs. 1,000 and Rs. 2,000 were advanced on the mere execution of promissory notes. These no doubt are points of suspicion, but once the evidence of Asharfi Lal is eliminated, it is unnecessary for us to weigh such evidence closely In our opinion there was no shifting whatsoever of the burden in the present case. The evidence which is necessary to shift the burden is evidence which prima facie the Court can believe. There is no such evidence on the record in the present case. No attempt whatsoever has been made to prove the annual profits of the property or its market value. As a matter of fact this property had been mortgaged, not many months before it was sold, with possession to a mortgages for the sum of Rs. 7,500, It apparently was a most excellent bargain for the mortgagee, because when the vendee offered him Rs. 7,500, he refused to accept it. The mortgage was for a fixed period of 20 years and he expressed his intention of continuing to hold for the 20 years. This he clearly would not have done had he not had a good bargain in his hands. According to the plaintiff the vendors sold their equity of redemption at the utmost for about a sum of Rs. 300. Rs. 500 was deducted on account of expenses, etc., but of this sum not more than Rs. 200 could possibly have been expended in the purchase of the stamp and the execution and registration of the document. Therefore, according to the plaintiff the equity of redemption was sold for Rs. 300. We find it impossible to believe this, in view of the circumstances which we have already mentioned. We, therefore, hold that, the decision of the Court below as to the sale consideration is incorrect and that the defendant vendee would, if the suit were decreed, be entitled to recover the full sum of Rs. 11,000 from the plaintiffs respondents. The result, however, by reason of our finding on the first issue, is that the appeal is allowed. The plaintiffs' suit will stand dismissed with costs in both Courts. Costs in this Court will include fees on the higher scale.