1. This is a plaintiff's appeal arising out of a suit for pre-emption. The plaintiff Mt. Ashraf Bibi is the own sister of the vendor Ali Ahmad. The defendant-vendees are the own uncles of Ali Ahmad, that is, his father's brothers. The case is governed by the Agra Pre-emption Act and it is obvious that the plaintiff as well as the vendees are descendants from a common ancestor of the vendor and are within four degrees. The Courts below have dismissed the suit. The learned Munsif held that Section 12, Sub-Clause (3) which gives preference in cases of near relationship applied only to the case of rival pre-emptors. The lower appellate Court is also of the same opinion. It has further expressed the opinion that, inasmuch as a sister is a sharer, whereas uncles are only residuaries, the sister is a nearer heir.
2. The language of Section 12, Sub-Clause (3) is certainly ambiguous but it has been held by this Court in two reported cases. Jagrup Singh v. Indrasan Pande : AIR1926All216 and Ishwar Dat v. Mahesh Dat : AIR1925All747 , that the expression 'claiming pre-emption' is not confined to suits by rival claimants but is applicable to a vendee who puts forward his equal right of pre-emption. While following these cases we noticed that this may involve a different interpretation of the word 'claiming' in Section 13: vide S.A. 586 of 1925. decided on 26th March 1926. It must therefore be held that the preference is not confined to rival suits only.
3. Under the Mahomedan law the sister is a sharer and the uncles are residuaries, but if the vendor were to die all these three persons would be the immediate heirs and would succeed to definite portions of the estate. For purposes of calculating the shares, classes of sharers and residuaries have been constituted. But when all succeed simultaneously it is impossible to hold that the sister is a nearer heir than the uncles. Daughters and sisters are in the list of sharers, and yet they can hardly be said to be nearer heirs than sons and brothers respectively, who are not sharers but only residuaries. The word 'nearer' apparently has been used to denote persons who would succeed immediately as against a person who would succeed if those other heirs also were dead. For instance, a nearer Hindu collateral would be a nearer heir than a more remote collateral. And among Mahomedans, sons and daughters would be nearer heirs than brothers and sisters. We are therefore unable to hold that the plaintiff is a nearer heir.
4. The next point urged on behalf of the appellant is that under Section 13 the plaintiff should at least be given a share in the property sold. It is contended that she as well as the vendees are persons who at least claim equally, and the property ought, at any rate, to be equally divided among them. It is also contended that the word 'claiming' in Section 13 has been used in Section 12, Sub-Clause (3) also, where in the cases above noted it has been given the meaning 'persons having a right of pre-emption,' and not necessarily persons suing for pre-emption. We did, however, point out this difficulty in the unreported case mentioned above. We do not think that we are compelled to hold that the expression 'persons claiming' under Section 13 includes vendees. It is abundantly clear by the provisions of Sections 10 and 11 of the Act, that on a sale to any person having a right of pre-emption, no right of pre-emption. accrues to any person who has an equal or inferior right of pre-emption. Section 11 confers a right of pre-emption on persons mentioned in Section 12, subject to the foregoing provisions of Section 10. It follows, therefore, that when a vendee is on the same footing as the pre-emptor, there is no right of pre-emption at all and the property cannot be divided between them. This is in accordance with the view which prevailed previously, before the Act was passed, and we think that the Act has not altered the law in this respect.
5. The appeal, however, must succeed on a ground which apparently was not pressed before the lower appellate Court and is not expressly mentioned in the grounds of appeal before us. The plaintiff is the sister of the vendor and the vendees are his uncles. She is therefore descended from a nearer ancestor. Section 12, Sub-Clause (3), contains the expression 'descended from the common ancestor' and does not speak of a common ancestor. If the nearest common ancestor were not meant, then it is obvious that there might be more than one ancestor from whom the claimants are descended, and are not removed by more than four degrees. If all such claimants were to come in one category, the proper expression to use should have been a common ancestor.' The sub-section, however, uses the words 'the common ancestor' which implies that there can be only one common ancestor and not more than one. If it is intended that there can be only one common ancestor, it follows that ancestor must be the nearest. In interpreting the sub-section in this way we are not necessarily introducing a new word 'nearest' into the section but are giving due weight to the use of the definite article 'the' before the words ''common ancestor.' The use of that article no doubt indicates that there is only one ancestor in contemplation and that must of necessity be the nearest. Although the language of the section is not happy we have, after, giving the matter our best consideration, come to the conclusion that the meaning of the words 'the common ancestor' must be that common ancestor who is the nearest. We might point out that in cases arising under the wajib-ul-arz the word 'ekjaddi' was often held to mean 'descended from the nearest ancestor' and that persons descended from remoter ancestors were excluded: F.A. 358 of 1924.
6. It therefore seems that the legislature has not intended to alter the law in this respect. We accordingly allow this appeal and setting aside the decrees of the Courts below decree the plaintiff's suit with costs. We give the plaintiff two months from this date for payment of the pre-emption money. If the amount is not deposited within the time fixed, the plaintiff's suit will stand dismissed with costs in all Courts.