1. This appeal arises out of a suit for pre-emption. Practically speaking the only evidence in support of the alleged custom of pre-emption was an extract from the Wajib-ul-arz. The pre-emption clause is as follows:
Of the co-sharers if any co-sharer wants to sell or mortgage his share, then he should do so first to bear relations, then to near co-sharers, and when none of them takes, then he may transfer it to a stranger. If a co-sharer does not take, then the near relations and the co-sharers according to the above order have the right to take it by right of pre-emption and the mode for redeeming a mortgage is this, that when the mortgagor or his heir pays the amount of the mortgage money entered in the deed, he may take back the mortgaged share. If any co-sharer has mortgaged or made a conditional mortgage of his share to a stranger and the term of the mortgage or sale be about to expire and the notice for* foreclosure has been issued, then another co-sharer owing to the poverty of the mortgagor can pay up the above mortgage-money and take possession of the mortgaged share; when the original mortgagor gets into affluent circumstances, then he may pay up the mortgage-money and redeem the share.
2. In the present case the pre-emptor is a co-sharer in the same thok with the vendor; whilst the vendee is a co-sharer in the same mahal but in another thok. On the 29th of March 1910, a mortgage was executed in favour of the defendant-vendee by way of a conditional sale. On the 19th of July 1911, a decree for foreclosure was made. On the 10th of May 1912, the decree was made absolute. On the 5th of June 1912, possession was taken and on the 18th of June 1912, the present suit was instituted.
3. In our opinion the evidence in the present case was wholly insufficient to establish the existence of a custom by which the plaintiff was entitled to get possession of the property in question after a decree absolute for foreclosure had been made. It is said on behalf of the respondent that once the decree absolute was made, then the transaction amounted to a sale and that the right to preempt as in the case of simple sale arose. In our opinion where the evidence of the custom is the Wajib-ul-arz, and this deals first with the case of a simple sale and makes provision for pre-emption in the case of such a sale and then deals with the case of a conditional mortgage, it would be quite wrong to hold that the custom applying to the case of a simple sale equally applied to a transfer of property which takes place after a mortgage by conditional sale has ripened into a complete transfer by a foreclosure suit. A very similar case arose in Raja Ram Singh v. Paras Ram Singh 11 Ind. Cas. 628 decided by this Court on the 7th of July 1911.
4. We allow the appeal, set aside the decrees of both the Courts below and dismiss the plaintiff's claim with costs.