Thom, C.J and Ganga Nath, J.:— This is a defendants' appeal arising out of a suit for pre-emption.
The suit was filed by Muhammad Yar Khan. He made a wakf alul-aulad of his entire property. He sued, however, first of all in his private capacity. During the course of the proceedings in the trial court he filed an application for amendment of the plaint. This application was allowed and by his amendment the plaintiff described himself as mutwalli.
Both the courts below have granted decree for preemption.
In appeal it was urged for the appellants that inasmuch as the plaintiff was not a co-sharer within the meaning of section 4 of the Agra Pre-emption Act he was not entitled to maintain a suit for pre-emption. This contention in our Judgment is sound. A co-sharer is defined in section 4(1) of the Agra Pre-emption Act as a person other than a petty proprietor, entitled as proprietor to any share or part in a mahal or village, whether his name is or is not recorded in the register of proprietors.”
Now the plaintiff having divested himself of his entire property and that property having vested in the Almighty the plaintiff was not a person entitled to any share or part in the mahal or village in which the property sought to be pre-empted is situated. He is not therefore entitled to maintain a suit for pre-emption. In this connection we refer to the case of Mohammad Bakhsh v. Bohra Ram Prasad(1). In that case a Bench of this Court held that a person who had divested himself of his entire property by means of a wakf deed was not entitled to resist a claim for preemption upon the precise ground that he was no longer a co-sharer in the village in which the property sought to be pre-empted was situated.
The respondents relied on the case of Muhammad Qamar Shah Khan v. Muhammad Salamat Ali Khan(2). In that case a Bench of this Court held that if a in person is liable for the payment of the land revenue along with other co-sharers in the village then he must be deemed to be a co-sharer in spite of the fact that the estate in the share may not vest in him. No doubt for the purposes of the Agra Tenancy Act the person who is liable in respect of land revenue is regarded as a co-sharer, “Co-sharer” is not defined in the Agrai Tenancy Act but is defined in the Agra Pre-emption Act. The plaintiff having executed a wakf deed under which he divested himself of his entire property is no longer a co-sharer as defined in the latter Act. He is not therefore entitled to maintain a suit for preemption.
Learned counsel for the plaintiff requested the Court to allow him to amend his plaint so as to substitute the Almighty for himself as the plaintiff. The plaintiff, however, knew at an early stage of the proceedings that his plaint was defective. He was given an opportunity to amend his plaint. His amendment has not removed the defect and in all. The circumstances and especially since the application for amendment is made well beyond the period of limitation we do not consider that any further indulgence should be granted to the plaintiff.
In the result the appeal is allowed, the order of the lower appellate court is set aside and the suit is dismissed with costs. The costs will be payable out of the assets of the plaintiff who is deceased.