1. This appeal arises out of a suit for pre-emption and two questions arise for consideration. The first is whether a suit for pre-emption brought against an ostensible vendee without impleading the real purchaser is maintainable. The second is whether the plaintiff is entitled to preference as against the vendee real or ostensible. The Court of first instance was of opinion that the suit could not be entertained against an ostensible purchaser without the real purchaser being made a party to the suit. The lower appellate Court was however of opinion that the real vendee could not take advantage of a benami transaction to defeat the claim of the plaintiff, though he was not made a party to the suit. It then proceeded to consider whether the plaintiff was entitled to a preferential right as against the real vendee, and came to the conclusion that he was entitled to such a preference. A decree for pre-emption was accordingly awarded to the plaintiff subject to the payment of a sum of Rs. 300 in respect of each of the sales which form the subject of pre-emption.
2. It is a well-settled rule that a suit against a benamidar binds the benamidar as much as the real purchaser, even though the latter may not have been made a party to the suit. The purchase in the present instance was made by Jagannath Prasad in the name of his wife Musammat Ram Sakhi Kuar. Musammat Sakhi Kuar pleaded that she was only a benami purchaser and that the purchase had been really made by her husband. The plaintiff took no step to bring her husband on the record. Both the courts below found that her husband was the real purchaser, but while the trial court thought that the plaintiff was not entitled to a preferential right as against him, the lower appellate court thought otherwise.
3. It is admitted that Musammat Ram Sakhi Kuar the ostensible purchaser, is not a co-sharer in the village in which the property sold is situated, but it is clear from the khewat to which the lower appellate court has referred, that her husband, Jagannath Prasad the real purchaser, is a co-sharer in the patti in which the property in dispute stands. It appears from the wajib-ul-arz of 1860 that the village Sonrupur formed part of two mahals. One of the mahals called mahal Shanker Prasad included a half of the village Sonrupur and another village named Bhartipur, while the other called mahal Thammandas' covered the remaining portion of the village Sonrupur. At that time mahal Thammandas was divided into two pattis known as patti Ram Jawakkul and patti Thammandas. The share of Raghunandan Prasad which has since passed to the defendant vendor was situated in Patti Ram Tawakkul. Subsequently in 1883 the village Bhartipur was separated from the former mahal; and the different portions of the village Sonrupur were brought together and divided into two mahals known as mahal Mahesh Lai and mahal Thammandas Shankar Prasad. According to the wajib-ul-arz of 1290 F Mahal Thammandas Shankar Lal was subdivided into two pattis known as patti Thammands and patti Shankar Prasad. The khewat for 1325 F shows that patti Thammandas consisted of land situated in numbers 1 to 46 khewat, out of which khewat numbers 1 to 28 constitute about a 4 as 4 pies and odd share while numbers 29 to 46 khewat constitute an equal share within the patti. The property in dispute is situated in No. 38 khewat which forms a part of patti Thammandas. The defendant vendor claimed to derive his title from Raghunandan Prasad who was a co-sharer in No. 38 khewat. The plaintiff is also a co-sharer in No. 38 khewat by virtue of a litigation in which a 3 pies share of Raghunandan Prasad was awarded to him. The defendant vendor Musammat Ram Sakhi Kunwar has admittedly no share in the village but her husband Jagannath Prasad, the real purchaser is a co-sharer in other holdings inside the same patti.
4. The wajib-ul-arz of the village Sonrupur mahal Thammandas provides that the right of pre-emption shall belong in the first instance to near relations who are descended from the same common ancestor and whose names are entered in the khewat, in the second place to nearer co-sharers (hissedar garibi) and in the case of their refusal to co-sharers inside the patti then to the other co-sharers in the mahal and to the co-sharers in other mahals in the order mentioned. The plaintiff claimed to be a nearer co-sharer inside., the patti, but it is admitted that he is in no way related by common descent to the defend and vendor. He merely claims to be a distant relation of Raghunandan Prasad to whom the vendee Jagannath Prasad is also related by a common descent. Neither of them is a relation or hissadar qaribi of the vendor within the meaning of the wajib-ul arz and the plaintiff cannot on that ground claim any preference.
5. His contention is that the words 'hissadar garibi' indicate nearness in space and that as he is a co-sharer in the same sub-division with the vendor, he is entitled to preference. But as the lower appellate court has rightly pointed out the first two categories given in the wajib-ul-arz deal with the relationship, while the last two categories deal with proximity in space. The wajib-ul-arz gives a right of premption to the near relations descended from the common stock then to the other near relations, not so descended, after them to the co-sharers of the same patti then to the other co-sharers of the mahal and then to the co-sharers in the other mahals. There is no preference granted between the co-sharers inside the same patti unless some of them happen to be the kinsmen of the vendor. The lower appellate court was of opinion that since the holding Nos. 1 to 28 in which Jagannath was a co-sharer formed a group of co-sharers distinct from those belonging to the holdings Nos. 29 to 46, in which the vendor and the plaintiff were co-sharers, the plaintiff was entitled to preference. But the copy of the khewat produced clearly shows that the holdings Nos. 1 to 46 belong to the same patti. The plaintiff is not therefore entitled to any preference as against the real vendee who is a co-sharer in the same patti, though not in the same holding. As pointed in Harsaran v. Dilraji 8 Ind. Cas. 527 the plaintiff cannot be allowed by keeping the real purchaser out of the record to enforce a right against an ostensible vendee which he would have been entitled to enforce against the real purchaser had he been brought on the record.
6. This appeal must therefore be allowed and the claim of the plaintiff will stand dismissed. As the purchase was made in the name of a person who was not a co-sharer in the village, we do not consider that it would be equitable to award any cost to the other party here or in the courts below. The parties must bear their own costs throughout.