1. This is a plaintiff's appeal arising out of a suit for pre-emption. The first Court decreed the claim but on appeal the suit has been dismissed.
2. Both the Courts below agree that there is a custom of pre-emption in this village. The Court of first instance was further of opinion that under that custom a nearer co-sharer was entitled to a preferential right as against a distant co-sharer. The lower Appellate Court has come to a contrary conclusion.
3. Two wajib-ul-arzes were produced by the plaintiff in support of the alleged custom.
4. The first one was of 1860 which provided that every co-sharer has a right to transfer his share but at the time of transferring it it is incumbent on him to inform the near co-sharer (hissedar qaribi) and in case of his refusal the other co-sharers of the village, and in case both these sets of co-sharers refuse, then he is entitled to sell it to whomsoever he likes.
5. Reading this clause, there can be no doubt whatsoever that under the custom it was the right of the near co-sharer to have the first offer. If, without any such offer having been made to the near co-sharer in the first instance, property was sold to a distant co-sharer the near co-sharer could obviously urge that the custom had not been complied with. The wording of this wajib-ul-arz makes it clear that there was a preference inter se between the co-sharers.
6. The other wajib-ul-arz was of the year 1886 which provided that when a co-sharer wishes to sell his share a co-sharer who is a near relation, then a co-sharer who is a distant relation, then all co-sharers in the patti and then co-sharers in the lambardari and then the other co-sharers of the village shall have a priority and preference. In the case of refusal by them, the co-sharer has a right to sell it to any one he likes. This wajib-ul-arz also, in our opinion, gives a preference inter se. When it is read in connection with the previous one, no doubt is left in our minds.
7. The learned Judge of the Court below has in his judgment remarked that the case reported in Mathura Singh v. Ramlal Singh 64 Ind. Cas. 86 : 19 A.L.J. 903 marks a departure from the rules of law laid down in the previous cases and particularly in the case of Gurdial v. Mathura Singh 6 Ind. Cas. 920 : 7 A.L. 3. 610. That is not correct. The wajib-ul-arz in the case reported in Gurdial v. Mathura Singh 6 Ind. Cas. 920 : 7 A.L. 3. 610, clearly provided that in the case of a sale or mortgage the transferor was bound to transfer, first, to a co-sharer in the patti and then to pattidars of the mahal, then to owners of other mahals, and in case of their refusal to outsiders. It was then held that if the tansferor had not transferred the property to a co-sharer in the patti the latter had a right of pre-emption. This was obviously correct. Whereas in the other case the wajib-ul-arz was to the effect that in case of a transfer of property the right to claim pre-emption would be as follows:
8. First to warisan ek jaddi qaribi; then to hissedars of the patti, and then to co-sharers in the village.
9. It was held that that evidence was insufficient to prove the plaintiff's case that in case of a transfer to a co-sharer there was a preferential right in a nearer co-sharer. It is noteworthy that the wording of that wajib-ul-arz referred to a case where a transfer had taken place, and provided for a right to claim preemption.
10. In the present case we have no doubt in our minds that, having regard to the language of both wajib-ul-arzes, there was a right of preference inter se.
11. The learned Vakil for the respondent has urged that in that view of the matter the case ought to go back for a finding as to whether the plaintiff is in fact the near relation of the vendor. The Court of first instance distinctly found that the plaintiff and the defendant vendor were near relations; and that the evidence of the plaintiff's witnesses was to that effect. When the defendant went up in appeal before the District Judge the point was not clearly taken that the finding was wrong. There is really no satisfactory evidence on behalf of the defendant to rebut the evidence of the plaintiff.
12. We, therefore, accept the finding of the first Court that the plaintiff is a near relation and a co-sharer and, therefore, comes in the first category, whereas the defendant does not come in that category. This being our view, the appeal must prevail. The decree of the lower Appellate Court is set aside and that of the Court of first instance restored with costs.