1. This is a defendant's appeal arising out of a suit for pre-emption. The rights and interest of Balbir Singh in mahals called 10 biswa mahal and 7 biswa mahal were sold under a sale-deed dated 10th February 1925, to Dr. Masha Ullah Khan whose heirs are the appellants before us. Balbir Singh was recorded in the khewat as the superior proprietor (Malik Ala) in respect of the entire 20 biswas. The plaintiff Harnam Singh is recorded as an inferior proprietor (Malik adna) of a share out of the 20 biswas. The vendee denied the plaintiff's right to sue for pre-emption. The learned Subordinate Judge has held that the plaintiff is a cosharer and, therefore entitled to maintain the suit. He has not separately considered the question whether the interest transferred is pre-emptible.
2. The constitution of this village is very peculiar but there is no dispute about its characteristic features. The village is divided at least into two mahals called the 10 biswa mahal and the 7 biswa mahal. The counsel for the parties admit that the settlement for the payment of Government revenue has been made by the Government with the proprietors called the inferior proprietors among whom the plaintiff's name appears. But these inferior proprietors are bound to pay not only the Government revenue and the cesses but also a fixed sum of malikana dues amounting to Rs. 190 to the superior proprietor who is also described as the lambardar.
3. It is quite clear that Balbir Singh cannot be treated as a cosharer of the plaintiff Harnam Singh. The rights of Balbir Singh and Harnam Singh were quite different, distinct and independent. Balbir Singh is not a proprietor of any share or part in a mahal as referred to in Section 4. His rights whatever they may be extended to the entire 20 biswas. He has transferred his entire rights. The present plaintiff is in no sense a cosharer of Balbir Singh in the right so transferred by him.
4. Section 4, Pre-emption Act, defines a cosharer as any person other than a petty proprietor entitled as a proprietor to any share or part in a mahal or a village. Balbir Singh undoubtedly was not a petty proprietor. He cannot be called a person entitled as proprietor to a share or part in this mahal. The Government revenue was not settled with him. Both Balbir Singh and the body of inferior proprietors cannot be called cosharers in this mahal at one and the same time. The right of Balbir Singh was confined to a realization of the malikana dues from the inferior proprietors who alone could let out the lands to tenants and collect rents. In a somewhat analogous case arising under the old law a Bench of this Court held in the case of Abdul Wahid v. Halima Khatun  42 All. 262, that the right to receive malikana allowance could not be the subject of a suit for pre-emption. On the analogy of that case we hold that the mere right to receive malikana dues is not an interest of a cosharer in a part of the mahal.
5. It is therefore quite obvious that the present plaintiff cannot be allowed to pre-empt this interest. The interest transferred is a right in the entire 20 biswas and in that right the plaintiff is not a coparcener. Under Section 11 of the Act a right of pre-emption accrues when a cosharer or a petty proprietor sells any proprietary interest in land forming part of any mahal or village. Thus before a suit for pre-emption can be maintained it is necessary to find that the interest transferred is not only a proprietary interest but also that of a cosharer or a petty proprietor. This is not so in the present case. The sale accordingly is not pre-emptible.
6. We should not be understood to decide that no right of pre-emption would accrue inter se if cosharers in the inferior proprietary interest were claiming pre-emption on account of a sale of an inferior proprietary right. We accordingly allow the appeal and setting aside the decree of the Court below dismiss the plaintiff's suit with costs in both Courts.