1. This is a defendants' appeal arising out of a suit for pre-emption. The plaintiffs came into Court claiming a right of pre-emption on three grounds :
(1) on the basis of a custom in the village :
(2) on the basis of a contract between the co-sharers : and
(3) on the basis of the Muhammadan Law.
2. The Courts below have held that no custom was proved. They have also held that the claim based on the Muhammadan Law has failed as the necessary preliminary demands were not made. But on the basis of contract they have decreed the claim.
3. The evidence of the contract relied upon is an extract from the Wajib-ul-arz of the current settlement. Reading that it is clear that the agreement was one between co-sharers to last so long as they remained co-sharers. Subsequent to the settlement Musammat Imam Bandi Bibi, a co-sharer in the village, effected a partition of her share (0-3-11) which was formed into one separate mahal. She transferred her mahal to one Farzand Ali, who in turn transferred it to one Musammat Amina Bibi. The present plaintiff and the vendor in the present suit are the representatives of Musammat Amina Bibi. It is clear after the perfect partition of Musammat Imam Bandi Bibi's share the contract ceased to be binding on the co-sharers, for the simple reason that she ceased to be a co-sharer with the other zamindars in the village. No fresh contract has been proved to have been entered into since the partition and in our opinion the claim based on contract must fail for the above reason.
4. We, therefore, allow the appeal, set aside the decrees of both the Courts below and dismiss the plaintiff's suit with costs in all Courts including in this Court fees on the higher scale.