1. The judgment of the lower Appellate Court is attacked in this appeal on the ground that the learned Judge was wrong in holding that the wajib-ul-arz of the village in question contains a record of custom.
2. There can be no doubt that the record is couched in most unusual language. The clause relating to pre-emption begins with the statement that a co-sharer is at liberty to sell his share but that he must first offer it to co-sharers in his own patti, preference being given to near relations. It then goes on to provide that if none of the persons just mentioned are willing to take the property then he is at liberty to sell to co-sharers in any other thok or patti. These words, however, are qualified by the addition of the words 'jisseraziho,' indicating that the person who wishes to sell has some right of selecting the person to whom he will make the offer. After this, it is provided that if no one in the second category is wiling to take the property and it no person in the village is willing to take a sale then a co-sharer can offer the property for sale to an outsider.
3. The learned Judge of the Court below, we think interpreted the words 'jis se razi ho' in the correct sense. It is argued, however; before us that, inasmuch as on the Interpretation of these words the person who wishes to sell has the option of offering the property to any person he likes, the record cannot properly be a record of custom. It is argued that in the terms of the clause we have just referred to it is open to the seller in property to pass over entirely the persons who are mentioned in the second category. Then, again, it is pointed out that according to this record if after the first and second category are exhausted and no person in the village is willing to take the property the seller can offer it to an outsider. These are certainly strange words and as the learned Counsel for the appellant contends they mean that any person in the village, whoever he may be would be entitled to an offer of the property sought to be sold. These words might include the village washerman, the sweeper or any other menial attached to the village. This certainly would be a most unusual provision to find in a record of a custom of pre-emption, It has further been pointed out by the learned Counsel for the appellant that the plaintiff cannot maintain the suit for, if he relies on the record of custom as set out in the wajib-ul-arz, he must show that he is a person whom the vendor approved of as a purchaser of the property. There was no allegation in the plaint to show that he was a person so approved of and that the vendor afterwards refuse to sell to him.
4. Bearing in mind the unusual language of this document, we feel constrained to hold that it is not proper to treat it as a valid record of an existing custom and in this view we differ from the judgment of the Court below. We, therefore, allow the appeal, set aside the decree of the Court below and direct that the suit do stand dismissed with costs in all three Courts including in this Court fees on the higher scale.