1. This is a defendants appeal arising out of a suit for pre-emption. The pedigree is set forth in the plaint. The plaintiffs are the grandsons of Phul Singh, another grandson of whom was Jugal Kishore who is dead. The vendor is Mt. Sardar his widow. Both parties are cosharers in the village, but the plaintiffs claim preference on account of their relationship with Mt. Sardar. The lower appellate Court has held that though the vendor Mt. Sardar was not related by blood to the plaintiffs-respondents, the latter have a preferential claim as against the defendants-appellants. The property held by the widow is a Hindu widow's estate, and the learned Judge has thought that the plaintiffs being related to her husband have preference. He has conceded that if the property transferred by her were her self-acquired property or her stridhan the plaintiffs would not have come within the meaning of Section 12, Sub-clause (3). Now, in order to succeed the plaintiffs must not only show that they are related to the vendor but must also show that they are descended from a common ancestor. The learned Judge has overlooked this portion of Sub-clause (3). Although the plaintiffs are in a way related to Mt. Sardar, namely by marriage, they have not a common ancestor with her. It therefore seems to us that the plaintiffs do not come within the meaning of Section 12, Sub-clause (3), inasmuch as they have not an ancestor common with the vendor.
2. Our attention has been drawn to the case of Jagrup Singh v. Indrasan Pande : AIR1926All216 where the plaintiff though related to the husband of one of the vendors was given a decree. The judgment does not show that this point was specifically raised before the learned Judges, and it seems that the respondent did not argue that the plaintiffs did not come within Section 12, Sub-clause (3), on that account. In an unreported case of Manrup Singh v. Mahadeo Kuar S.A. No. 1632 of 1924, Decided on 5th March 1925 by another Bench, of which one of us was a member, it was held that descent from a common ancestor of the vendor's husband was not the same thing as that from a common ancestor of the vendor, and that relationship by marriage with the vendor did not entitle the plaintiff to preference under Sub-clause (3). We agree with the latter pronouncement. In our opinion the plaintiffs have no preference over the defendants. The appeal is accordingly allowed, the decrees of the Courts below are set aside, and the suit is dismissed with costs in all Courts including in this Court-fees on the higher scale.