1. This appeal arises out of a suit; for pre-emption of a zemindari share and a house. The plaintiff-appellant; is a co-sharer in the mahal. He is also a Mussalman of the Sunni sect. The, vendor-is also a Mussalman but of, the Shia sect. The vendees are Hindus and strangers to the village. The plaintiff bases his right. on a custom prevailing in the village among the members, of the co-parcenary body. In the alternative he claims a right based on. Muhammadan Law and alleges that he performed the two necessary preliminary demands. The Court below has dismissed the suit. It held that the plaintiff had failed to prove satisfactorily the existence of the alleged custom. In regard to the alternative claim, it held that the plaintiff was not entitled to claim the application, of the Sunni rule of pre-emption to this case, the' vendor being a Shia, and under the Shia rule of pre-emption, no right of preemption could be claimed in the circumstances of the present case as there were admittedly many more than two co-sharers. It must be pointed out that the share sold is Khata Khewat No. 19 in which the plaintiff has no share, but it is part of a patti in which he has a share. To this patti is attached certain shamilat land in which all the co-sharers of the patti have a share, and there is also some shamilat deh in which all the co-sharers of the mahal have shares. The house in suit stands on the shamilat deh and belonged to the vendor only. The plaintiff claims his right because he has a share in the patti and village. On appeal it is urged:
(1) That the evidence produced is amply sufficient to prove the custom.
(2) That if this is not correct, then the lower Court was wrong in applying the Shia rule of pre-emption as the Muhammadan law of pre-emption prevailing in these Provinces must be taken to be the Sunni Law, irrespective of the creed of the parties, and, therefore, the lower Court ought to have decided the third and fourth issues' which it has not touched.
2. In regard to the first point, the plaintiff, produced an extract from the village; Wajib-ul-arz of 1867, also copy of a judgment in a pre-emption suit of 1897, a copy of the pasture dehi prepared at the last Settlement which is now current and four witnesses.
3. Taking first the extract from the Wajib-ul-arz of: 1867 we see that it runs as follows:
Paragraph 6 regarding the transfer of a hakiyat by sale or mortgage.
Every co-sharer has, power to transfer his 'hakiyat'' (his property) entered in the' khatauni. If any co-sharer, wishes to transfer his hakiyat by sale he shall first transfer-it to an ek-jaddi own brother, and in case of his refusal a co-sharer in the village.' is entitled to make a purchase. If a dispute arises regarding the price of the property to be transferred it shall be decided either by the Court or by arbitration, and if any brother or co-sharer does not take-in lieu of the price fixed by arbitrators, the co-sharer may transfer it to a stranger if he; likes; and he may mortgage it to whomsoever, he likes. If a son is alive a gift in favour; of a daughter's son or sister's son shall not be valid in the case of Hindus; but it shall be valid in the case of Mussalmans, while in the case of Englishmen the provisions of the statutory enactments shall be complied with.
In this village Mahajans, Brahmans, Kalals, Rajputs and Saiyeds are co-sharers. On the death of a proprietor without male issue, his widow provided she does not' re-marry shall be the' owner with a power to sell or mortgage, but she shall not transfer the property of the deceased to her father, brother or relations. She can make a transfer to the heirs of her deceased husband. In case the widow adopts a son from amongst the issue of her father or deceased husband, then the property shall devolve on such adopted son if she adopts one from among the relations of the husband but it shall not devolve on the issue of her father or on a ghair-kuf. In the case of two widows with different number of children the estate shall be divided with reference to the number of brothers and not per stirpes. In case there is no male issue the ek-jaddi relations shall be the owners.
4. We agree with the Court below that it is difficult, if not impossible, to accept this extract as recording pre-existing customs as to the transfer and devolution of property. The proprietary body consisted of Hindus of several castes and of Mussalmans whose customs and laws are naturally divergent. The clause even deals with the rights of Englishmen as to the power to make gifts. As their Lordships of the Privy Council have remarked there is no class of evidence which varies so much in value as this class, i.e., Wajib-ul-araiz; and in the present case the clause contains, to use the language of Lord Collins in Thakur Anant Singh v. Thakur Durga Singh 6 Ind. Cas. 787 : 14 C.W.N. 770 : 7 A.L.J. 704 : 12 C.L.J. 36 : 12 Bom. L.R. 504 : 8 M.L.T. 79 : (1910) M.W.N. 324 : 13 O.C. 163 : 20 M.L.J. 604 : 32 A. 363 : 37 I.A. 191, entries recorded to connote the views of individuals as to the practice they would wish to see prevailing rather than the ascertained facts of a well-established custom.
5. A Wajib-ul-arz contains not only entries relating to custom but also entries relating to agreements arrived at by the co-sharers at the time of Settlement. The present record nowhere in clear terms sets forth that there is any custom ' of pre-emption and the extract in the same clause contains matter which clearly could not be customs applying to all the co-sharers who were of various castes and religions. The evidentiary value of this document in the present case is practically nil.
6. Nor does the dasture dehi of the current Settlement assist us. It contains no mention of the rule of pre-emption. It mentions certain matters and then a general clause referring the reader for other customs to the old Wajib-ul-arz of 1867. The next piece of documentary evidence is the plaint and judgment in Suit No. 37 of 1897. This is no evidence at all of the existence of the custom. There is no mention of a custom in. the plaint, no issue and no decision as to Custom in the judgment. The right was claimed 'Under the terms of the Wajib-ul-arz of the said village which is uncontested and still in force and binding in law on the vendor.' Though the suit was brought, not. while the Settlement of 1867 was in force; but during the currency of the present Settlement, the defendant vendee therein (who was the present plaintiff, then a stranger to the village) appears not to have contested this, plea, but urged that the plaintiff therein had refused to purchase the property when offered to him. As evidence, therefore, of the existence of a custom these documents are of no value.
7. We next come to the four witnesses who testify to the existence of the custom. The first of these is the plaintiff Pir Khan himself. He bases his allegation that a custom of pre-emption exists on the entry in the Wajib-ul-arz and the fact that when he purchased a share in 1897, a co-sharer sued him and obtained a decree. This is the decree and suit which has been already discussed. He states that when he subsequently purchased another share, another co-sharer brought pressure to bear on his claiming a right of pre-emption. They came to terms under which he retained a portion of the property and subsequently the same co-sharer transferred the rest of the property and some more in addition. He admits two instances in which strangers acquired shares without any interference. In a third case he admits that a stranger acquired a share by status, that it was by auction sale. In one case he admits that though a suit was instituted to enforce the right of pre-emption, it was dismissed for default. He has no knowledge personally as to the state of affairs prior to 1897. Maru, the next witness, is very vague as to the incidents of the alleged custom' and he has admitted four other instances in which strangers have purchased shares without any interference. Mahmudul Hasan, the third witness, is a man who was a co-sharer 15 years ago. His evidence is on all fours with that of the plaintiff and similar to it. He and the latter have in other suits given evidence for each other. Bundi, the fourth witness, alleges that the custom exists and states that he once brought a suit for pre-emption and won it. He had to admit that his mother brought it when he was a child. He admits that Fayaz Hussain sold property to Chunnilal Singh. He pretends that he does not know whether his mother originally came into the co-parcenary body as a stranger purchasing from a co-sharer, Hussain Bakhsh. Although the other witnesses have admitted at least six instances, mostly in recent years, of strangers purchasing shares without interference from co-sharers, he states that there have been no such cases. He is clearly a partial and far from truthful witness. He does not know whether in his mother's case the right was based on custom or not.
8. It will be seen that while six cases of sales to strangers have been admitted, only four cases have been put forward in which the right 6f pre-emption has been claimed. In one of these, the plaintiff in the suit neither alleged nor claimed on the basis of custom. In the second the suit was dismissed for default. In the third the vendee and pre-emptor came to terms under which the former was allowed to retain part of the property and to take the balance a year after. In the fourth the claim was based on the entry in the Wajib-ul-arz. In these circumstances, looking to the ambiguity of the Settlement entries and the fact that in no more than 40 per cent. of the sales to strangers have claims for pre-emption been put forward and that not all of these were pressed or ended successfully, it is impossible to hold that the plaintiff has put before the Court sufficient evidence to: establish the custom which he alleges.
9. We next come to the question of the plaintiff's right under Muhammadan Law-It is urged that the Muhammadan Law of pre-emption which the Courts in these Provinces can apply is the Sunni Law alone, and the reason given is that that was the law which was enforced before the British rule commenced. This is not an argument of much force, if of any at all. Reliance is placed on the decision of the Calcutta High Court reported as Jog Deb Singh v. Mahomed Afzal 32 C. 982 : 9 C.W.N. 826. We cannot follow this ruling in view of the decision of our own High Court. In the case of Abbas Alt v. Maya Ram 12 A. 229 : A.W.N. (1890) 93, where the vendor and pre-emptor were both Shias and the vendee a Hindu, the Shia rule of pre-emption was enforced. In the case of Kurban Hussain v. Chote Lal 22 A. 102 : A.W.N. (1899) 198, where a Shia sought to pre-empt in the case of a sale by a Sunni to a Sunni, the Court held that the suit must fail as the plaintiff being a Shia had, under the Shia Law, no right of pre-emption though under the Sunni Law such a right was given in the circumstances of that case. As was pointed out in that case, the Courts must apply the rule of justice, equity and good conscience. In the present case if the vendee and pre-emptor were to change places, the Shia could not pre-empt by reason of his own law, i.e., his own law would be applied to him. In justice when he sells, his own law should be applied. There is no warrant for saying that the Shia Law of pre-emption is a dead letter in these Provinces. It has always been applied to Shias and we can see no justice in refusing to apply it. In the case of a sale by a Sunni to a Hindu, the Sunni Law is applied where a Sunni seeks to pre-empt, vide Gobind Dayal v. Inayatullah 7 A. 775 : A.W.N. (1885) 228.
10. In our opinion the decision of the Court below is quite correct on both points. In this view the appeal fails and is dismissed with costs including fees on the higher scale.