1. This appeal arises out of a suit for pre-emption. The plaintiff has been found to be an ekjaddi co-sharer with the vendor. We may assume, (although it was not admitted in the Court below) that the defendant-vendee is a co-sharer in the mahal but not ekjaddi. The defendant pleaded, amongst other pleas' that the right of pre-emption only arose in the case of a sale to a stranger and that in any event the sale had taken place after the plaintiff had refused to purchase. The Court below has decided against the defendant, hence the present appeal.
2. In the entry in the wajib-ul-arz a number of words are left to be understood. The meaning, however, seems to be pretty clear. It may be literally translated as follows:
3. 'The right of purchase at the price which a stranger may give shall be prior (in favour of) the ek-jaddi co-sharer, after that with the co-sharers in the mahal, after they refuse the property may be sold to a stranger.' The only reason for holding that this limits the right of pre-emption to a case where the property is sold to a stranger, is the introduction of the words 'at the price which the stranger may give'. The clause appears to us to be very similar to the clause in the wajib-ul-arz referred to in the case of Gurdial v. Mathtura Singh 6 Ind, Cas. 920 : 7 A.L.J. 610. In that case the wajib-ul-arz extract was translated as follows:
4. 'If any co-sharer should wish to sell or mortgage his property, then first he shall transfer it to a co-sharer in the patti and after that to other pattidars of the mahal and after that to the owners of the other mahals and in case of their refusal, he is at liberty to transfer it to an outsider at the same price as a stranger would be willing to give'. In this case it was held that the words 'at the price a stranger would be willing to give' were introduced for the purpose of regulating the price. It seems to us that where the custom, (as proved by the record in the wajib-ul-arz) is that the co-sharer desirous of selling his property must first offer it to his co-sharer in the patti and after him to other co-sharers and that if they refuse he can sell to a stranger, it can hardly be said that a co-sharer who hns sold to a stranger after he has offered to sell to the persons entitled one after the other according to the priority of their right, has isolated the custom merely because he thas not concluded his bargain with the stranger before he made the offer. Of course the offer must be a bona fide offer and if the persons having a right of pre-emption wanted to know the price or any other particular, they would be entitled to be informed. We need hardly say that the vendor would not be entitled to sell the property for a less price than the price he mentioned to the pre-emptors.
5. It is contended on behalf of the defendant that in the present case the vendor offered the property to the plaintiff before the sale-deed was executed and that the plaintiff refused to purchase. It is contended that the Court below in finding this issue against him had in its mind that it was necessary that the whole contract should have been communicated to the plaintiff, and that his (the plaintiff's) refusal to purchase was of no consequence until the entire contract was so communicated. This no doubt might have been the view taken by the Court below. We have, therefore looked at the evidence of the witnesses on this part of the case. The vendee said that when he had arranged to buy, he told the vendor to call the other co-sharers including the plaintiff, that they were called and that he asked them if there would bo any dispute about the property, that they said no,'that he might have that sale-deed executed. Another witness stated that he and some of the other co-sharers happened to be passing by the place where the vendee spread his bricks, that they went over when the vendee called them and they were informed about the sale and that they said they did not want to purchase, it is quite clear that the Court below disbelieved this evidence and did not decide the issue merely on the ground that the price had not been fixed. The two witnesses, it is to be observed, do not tell quite the same story. We must consider the finding of the Court below to be a finding of fact that the plaintiff did not refuse to purchase the property. In this view the appeal fails and is dismissed with costs.