1. The appellants vendees were defendants in a suit brought by the plaintiff-respondent, Sheikh Muhammad Sulai-man, to pre-empt a sale of property in two villages, Bafipur and Khwajpur, made in their favour by the third defendant, Salika Bibi.
2. This lady is a first cousin of the plaintiff and she and the plaintiff are co-sharers in the same mahals in the two villages. The purchasers have shares in these villages but in different mahals. The plaintiff relied upon the custom set out in the wajib ul-arzes prepared at the last revision of Settlement in or about the year 1884. (The District is permanently settled).
3. It is admitted that, since these wajib-ul-arzes have been prepared, there has been a perfect partition of both the villages in suit and it is this fact which has been relied upon by the defendants-appellants in order to defeat the plaintiff's claim. It is common ground that no fresh wajib-ul-arzes were prepared after partition and so it was contended that the custom had been abrogated. In the alternative, it was pleaded that if the custom was still in force the plaintiff had no better right than the defendants-purchasers as all are owners of shares in the two villages.
4. This defense was accepted by the trial Court and the plaintiff's suit was dismissed. In appeal this decision was reversed and the suit decreed.
5. In this Court three pleas are taken in the memorandum of appeal.
6. It is said in the first ground that the existence of the custom has not been proved. The second ground takes the same point in a different way : it is said that the Court below should have found that the custom had been abrogated by the partition.
7. Lastly, we have a plea that in any case the plaintiff has no right superior to that of the purchasers.
8. It is not possible to sustain the argument that a partition abrogates a custom preemption. That is settled by the Full Bench decision in Dalganjan v. Kalka 22 A. 1 (P.B.); A.W.N. (1899) 111 : 9 Ind. Dec. (N.S.) 1036 and also by the Privy Counoil Decision in Digambar's case 28 Ind. Cas 84 : 18 A.L.J. 286 : 19 C.W.N. 393 : 17 M.L.T. 193 : 2 L.W. 303 : 21 C.L.J. 237 : 28 M.L.J. 656 : 17 Bom. L.E. 898; (1916) M.W.N. 681 : 87 A. 129 : 42 I.A. 10. (P.C.).
9. The question is whether the custom as recorded in the old wajtb-ul-arz has survived the partition and whether it can be applied to the altered state of things brought about by the partition. It has been argued before us that if the custom as recorded before partition cannot be applied in its entirety in the altered conditions effected by the partition it must be deemed to have been abrogated. We do not think there is anything in either of the rulings cited above to justify this proposition.
10. A custom may survive but its scope may be narrowed, as it often is when partition is effected. As is apparent from the decision in Dalganjan's case (1).
11. The effect of a partition may be to deprive a certain number of those who were formerly entitled to pre-empt of their right but it never seems to have been suggested that it results from this that the custom is entirely abrogated. It may still apply to other classes whom the partition has not deprived of the right of pre-emption. A partition is the act of parties and it is difficult to see why, if some of the sharers in a village choose to seek a partition and bring about by their own act their exclusion from a right they formerly enjoyed, the other sharers who remain within the co-parcenary body should be deprived of the right they had. The proper view appears to be that the old custom persists and is applicable to all who, notwithstanding the partition, continue in the same relation as formerly entitled them to claim preemption.
12. The wajib-ul-arz of Khwajapur provided for a right of pre-emption, first, in favour of sharers who were members of the same family next, in favour of 'hissedaran qaribi' and after that in favour of ' hissedaran deh'.
13. In the case of Eafipur the scheme was somewhat different. The first right was given to sharers, members of the same family--the next to sharers in the same patti the third to sharers in the same thok and the last to 'hissedaran deh'. Now that new mahals have been formed some of these olasses of pre-emptors have necessarily disappeared, e.g., the 'hissedaran deh'. But there can be no difficulty in holding that the custom is still applicable as regards the class denoted by the expression 'sharik khandani' who in both village have clearly the best right of all. The vendees can only claim as, 'hissedaran deh' but under the altered constitution of both the villages they would not be entitled to pre-empt in a mahal in which they had no share.
14. The plaintiff here is clearly a 'sharik khandani' of the vendor: they are, as has been said, first cousins and undoubtedly belong to the same family being descended from a common grandfather.
15. The plaintiff is entitled to the benefit of the custom which, so far as the class to which he belongs is concerned, musif be deemed to have survived the partition.
16. The decree of the lower Appellate Court is correct. The appeal fails and is dismissed with costs including, in this Court, fees on the higher scale.