Mahmood, J.:— The facts of this case and of the connected cases, so far as they are necessary for the purposes of disposing of them, are as follows:—Harbans Lal and Rajkali Kuar, by a deed of sale dated the 27th October, 1881, sold their rights and interests in certain properties to Jai Ram Ojha (defendant) in lieu of a price purporting to be Rs. 24,000. One of these properties-[722] is situate in Patti Thakur Das, one in patti Akbar Hussain, one in patti Ram Ghulam, and the fourth is a cultivatory lolding to which no right of pre-emption applies. On the 5th October, 1882, Raghunandan Rai, Bhajna Rai, and Jageshar Das, instituted a suit against the vendee and the two vendors for enforcement of the right of pre-emption in respect of the sale of the rights in patti Akbar Khan and patti Ram Ghulam only, asserting that their right of pre-emption did not extend to the other properties included in the sale.
This suit was numbered 195 by the Court of first instance.
A similar suit was instituted by another co-sharer, Mahabir Rai, for pre-empting the same property as that included in the former suit, on the 14th March, 1882, and the suit was numbered 201 by the Court of first instance. On the same day, two other co-sharers, Parmanand Rai and Sheotaba Rai, applied to be made plaintiffs in suit No. 195, and their application having been granted, their names were entered upon the record as plaintiffs Nos. 4 and 5 respectively. On the 16th December, 1882, the Court of first instance added the name of Mahabir Rai (plaintiff in suit No. 201) as defendant to the first suit No. 195, and similarly added the names of all the five plaintiffs-pre-emptors as defendants to suit No. 201.
The two suits were tried together, and the Court decreed suit No. 105 to the extent of three-fourths of the property in suit, conditional upon payment of a proportionate amount of the purchase-money, and dismissed the suit as to the remaining one fourth of the property, to which it held Mahabir Rai (defendant in that suit and plaintiff-pre-emptor in suit No. 201) to be entitled. The decree was made subject to the further condition that in case the plaintiffs-pre-emptors in suit No. 195 omitted to execute their decree in the time fixed by the decree, the defendant-pre-emptor Mahabir Rai was to be entitled, upon deposit of the purchase-money, to obtain possession by pre-emption of the three-fourths share decreed to the plaintiffs in that suit. A similar decree was passed by the Court in Mahabir Rai's suit No. 201, decreeing his claim to the extent of one-fourth of the property in suit on payment of a proportionate amount of the purchase-money, subject to [723] the condition that, upon his failure to make the deposit within time, the defendants, who were plaintiffs-pre-emptors in suit No. 195, would be entitled, upon deposit, to obtain possession by pre-emption of the one-fourth share decreed to Mahabir Rai, plaintiff-pre-emptor in suit No. 201.
Both these decrees are based upon the grounds contained in the judgment passed in Mahabir Rai's suit No. 201; and it appears from the judgment that the reason why the Court allowed the claim in suit No. 195 only to the extent of three-fourths of the property was, that Parmanand and Sheotabal not having joined as original plaintiffs in that suit, their action in subsequently joining the suit was interpreted by the Court to be mala fide, and prompted by a desire to reduce the pre-emptive share of Mahabir Rai (plaintiff in suit No. 201), and on this ground the Court did not take their existence as plaintiffs in the suit into account in apportioning the amount of property to be decreed in that suit.
From these two decrees, all parties appeal to the District Judge.
Jai Ram Ojha preferred appeal No. 33 from the decree in suit No. 195, and appeal No. 34 in suit No. 201, the scope of the appeals covering the whole ground included in the two suits. Both these appeals were, however, dismissed by the Judge, the plaintiffs-pre-emptors in both the suits being held entitled to pre-emption against Jai Ram Ojha, defendant-vendee. Raghunandan, Bhajna, and Jageshar also preferred appeals (appeals Nos. 37 and 38) from both the decrees; and similarly their follow-pre-emptors, Parmauand and Sheotahal, who had joined the three persons above-named as plaintiffs to suit No. 195, and were impleaded as defendants to suit No. 201, appealed from both the decrees (appeals Nos. 39 and 40). Mahabir, plaintiff-pre-emptor in suit No. 201 also appealed from the decree in that suit, and thus these various appeals (Nos. 37, 38, 39, 36, and 40), related to the contention between the rival pre-emptors in the two suits Nos. 195 and 201. All these appeals were disposed of by the District Judge in his judgment in appeal No. 40, whereby he modified the decrees in both the suits by allowing to each pre-emptor a share in the property in suit in proportion to the extent of such pre-emptor's share in the village, by virtue whereof he had the right of pre-emption, [724] rendering such modified decree subject to the payment of a proportionate amount of the purchase money by each pre-emptor.
From the decrees of the District Judge, Jai Ram Ojha, defendant-vendee has preferred second appeals Nos. 496, 497, 498, and 499, and the pre-emptors have preferred second appeals Nos. 525, 526, 635, and 636. All these appeals were heard together, and the questions raised by them cover the whole scope of the decrees in the two original suits Nos. 195 and 201. With reference to the various contentions raised in this appeal, it will be convenient to deal with them in the same judgment; but the questions' raised by Jai Ram Ojha's four appeals (Nos. 496, 497, 498, and 499) must be disposed of first, because if his contention prevails, the effect would be the dismissal of both the original suits, rendering it unnecessary to dispose of the contentions raised by the contending pre-emptors inter se in the other four appeals. It appears that the village wherein the property in suit is situate, originally constituted one mahal, governed by the terms of a wajib-ul-arz framed on the 26th July, 1856, and to which all the co-sharers in the village were parties. The mahal consisted of various pattis or thokes, and the seventh clause of the wajib-ul-arz distinctly gave the right of preemption to the owners of each thokes in respect of property situate in every other thoke when such property was sold to a “stranger,” that is, a person having no share in the village co-parcenery. Subsequently, about the year 1878, the mahal appears to have been the subject of a “perfect partition,” as defined in s. 107 of the Land Revenue Act (XIX of 1873), and patti Thakur Das (in which a portion of the property sold under the sale-deed of the 27th October, 1881, is situate) was constituted a separate mahal, and a new wajib-ul-arz was framed for the new mahal on the 30th January, 1879, which also contains a pre-emptive clause in favour of the co-sharers of the new mahal inter se. Both the suits with which we have to deal in these appeals were brought, however, for pre-emption on the basis of the wajib-ul-arz of 1856, and it has been necessary to mention these circumstances in order to render inteligible the first and second grounds of Jai Ram's four appeals, wherein he contends that, notwithstanding the partition of the original mahal and the constitution of Thakur Das's patti into a new mahal, the plaintiffs in both the suits were entitled to pre-empt, [725] not only the property situate in the remnant of the old mahal, but also that situate in the new mahal, and that the property situate in both mahals having been conveyed to him by one and the same deed of sale, the plaintiffs could not break up the sale by pre-empting only a portion of the subject of the sale. This plea appears to be based upon the rule explained by ma in Durga Prasad v. Munsi, and again in Hulasi v. Sheo Prasad, which followed the view of law taken in Kashi Nath v. Mukhta Prasad and in older cases. There can be no doubt that every suit for pre-emption must necessarily include the whole of the property, I subject to the plaintiff's right of pre-emption, conveyed by one bargain of; sale to one stranger, and that a suit which does not include within its scope the whole of such pre-emptional property, is not maintainable, because it is inconsistent with the very nature and essence of the right of pre-emption itself. But before this rule can be applied to the two suits which we are now considering in these appeals, it is necessary to determine whether the plaintiffs in these two suits had any right of pre-emption in respect of so much of the property conveyed by the sale-deed of the 27th October, 1881, as is included in Thakur Das patti which constitutes the new mahal. And in order to determine this point, it is necessary to decide the question what was the effect of the perfect partition of the mahal in 1878–1879, which resulted in the new wajib-ul-arz of the 30th January, 1879, which, whilst providing in itself a right of pre-emption, governs only the new mahal, namely, that which constituted patti Thakur Das in the original mahal. Bearing in mind the provisions of the law as contained in ss. III and 112 of the Land Revenue Act, and other sections of the same enactment relating to the subject, and considering also the fact that there is nothing in the present cases to prove that the perfect partition of the mahal and the constitution of patti Thakur Das into a new mahal was effected irrespective of the wishes or consent either of the defendants-vendors or the plaintiffs-pre-emptors, I hold that the effect of the partition was to exclude patti Thakur Das from the operation of the terms of the wajib-ul-arz of 1856, and that the new wajib-ul-arz of 1879 created rights of pre-emption among the co-sharers of the new mahal inter se, irrespective-[726] of the provisions of the wajib-ul-arz of 1856. The plaintiffs, therefore, in the present two suits, had no right of pre-emption in respect of the property included in the new mahal, because the custom of preemption recognized, consensu omnium, in the wajib-ul-arz of 1856 could, as a matter of principle, be naturally varied by the perfect partition of 1878–1879, which resulted in the new wajib-ul-arz of 30th January, 1879—the separation of Thakur Das patti and the constitution of it into a separate mahal having the effect of separating it from the conditions of tenure which governed the old co-parcenery, and of placing it under new conditions as to the right of pre-emption. This view is consistent with the ratio decidendi on which a portion of the judgment of the late Sudder Dewany Adawlat in Motee Sah v. Musammat Goklee and of this Court in Ram Prasad v. Buljeet Singh proceeded. In the former of these cases the learned Judges observed that “an essential condition of the existence of a right of pre-emption is, that the parties claiming such a right shall be co-parceners in the same estate as those against whom the claim is made—a relation between the parties which is extinguished by the very operation of partition and the separate proprietorship thereby established.” The scope of these two suits was therefore co-extensive with the pre-emptive right of the plaintiffs, and the suits were maintainable. This view is supported by the ruling of the Sudder Dewany Adawlat in Oomur Khan v. Moorad Khan, which, although a case governed by Muhammadan Law, laid down the rule which must by equitable analogy be applied to the present case. Indeed the ratio decidendi adopted by a Full Bench of this Court in Salig Ram v. Debi Prasad, proceeds upon the same principle, and the right of pre-emption in that case arose out of the terms of the wajib-ul-arz.
The second ground of appeal urged on behalf of Jai Ram relates to the question whether the entry in the wajib-ul-arz of 1856, regarding the existence of the custom of pre-emption in the village, is correct, and the third ground relates to the proportionate amounts payable by the pre-emptors as price of the shares in [727] respect of which their suits have been allowed. Both these pleas raise questions of fact which have already been determined by the lower Courts, and which cannot be considered in second appeal. I may, however, add with reference to the effect of the pre-emptive clause in the wajib-ul-arz of 1856, that the argument of the learned pleader for the appellant regarding the status of such entries is materially refuted by the reasons upon which the ruling of the Full Bench of this Court in Isri Singh v. Ganga proceeded. The effect of this view will be that the four appeals of Jai Ram (S.A Nos. 496, 497, 498, 499) will be dismissed. I now proceed to consider the remaining four appeals (S.A Nos. 525, 526, 635, 636), which have been preferred by the various pre-emptors. The grounds of appeal in S.A Nos. 525 and 526 are identical, and similarly the pleas in S.A Nos. 635 and 636 are the same. Reading all these grounds of appeal together, they raise only three main questions for determination:—
(1) Whether the right of pre-emption possessed by Mahabir (plaintiff-pre-emptor in suit No. 201) is inferior to that of the plaintiffs in the rival suit No. 195.
(2) Whether Mahabir instituted his suit No. 201 in collusion with the vendee, and whether Parmanand and Sheotahal joined as plaintiffs in suit No. 195 by reason of collusion with the original three plaintiffs, and with the object of reducing the pre-emptive share of Mahabir.
(3) Whether the apportionment of the pre-emptive shares of the various pre-emptors should be apportioned in the two rival suits according to the extent of the shares possessed by each in the village, or per capita, that is, equally among all the pre-emptors.
A fourth point is raised in S.A No. 635 and No. 636, relative to the amount of the purchase-money found by the lower Courts; but as the question relates only to the merits, it cannot be considered in second appeal.
Upon the first point I am of opinion that there is no evidence, and there has been no finding upon the record, to show that Mahabir, plaintiff pre-emptor in case No. 201, is either inferior or [728] superior to the rival pre-emptors in the other suits; and therefore the rights of all co-sharers who have appealed as pre-emptors should be taken as being equal, and should not be estimated in proportion to the shares possessed by the pre-emptors in the village. In all questions of pre-emption there are three important points for consideration:—The first is the property which, by analogy, may be called the dominant tenement, that is to say, the property in virtue of which the pre-emptor's right exists. The second is the pre-emptors themselves. The third is the pre-emptioned property, which may, by analogy, be described as the servient tenement. It is a well-known rule of the Muhammadan Law as to pre-emption, that where more persons than one owning the pre-emptive tenement appear for the purpose of suing, their rights are to be taken as equal per capita, with reference to the number of the preremptors, and not with reference to the number of the shares of each pre-emptor in the pre-emptive tenement. The question then is, whether this rule of Muhammadan Law applies to the present case, which is one of pre-emption under the wajib-ul-arz. I am of opinion that the rule of Muhammadan Law is so consistent with justice, equity, and good conscience, that it must be followed in cases like the present. The reason upon which the law of pre-emption is framed is, that the intrusion of a stranger is disagreeable to the owners of the pre-emptioned property. This disagreeableness is not to be estimated in reference to the share in the property possessed by each pre-emptor, but in reference to each pre-emptor personally, and I hold that the equitable rule is to apportion the rights of the pre-emptors per capita. The decision of the District Judge upon this point is therefore overruled.
The second question is, whether the suit of Mababir, on the one hand, and the application of Parmanand and Sheotahal on the other, were suggested by collusion with the vendee or the pre-emptors in suit No. 195. There is no evidence and no finding to this effect,; and even if such collusion existed, it is necessary, in framing a decree in such pre-emptive suits, to obviate the effects of any such collusion. This point, therefore, I regard as unimportant. There is one more point raised in S.A Nos. 635 and 636, namely, as to the amount of the purchase-money found by the lower Courts to have been paid. This, however, is a question as to the merits which [729] cannot be considered in second appeal. I would therefore pass the following order in these cases:—Following the ratio decidendi adopted in Mahabir Parshad v. Debi Dial and in Kashi Nath v. Mukhta Prasad, I would partially allow appeals Nos. 525, 526, 635, and 636, and set aside the decrees of both the lower Courts in both suits, and in substitution thereof order and decree that in suit No. 195 the plaintiffs pre-emptors, Raghunandan, Bhajna Rai, Jageshar Das, Parmanand Rai, and Sheotahal Rai, do jointly obtain proprietary possession of five-sixths of the property in suit on payment into Court of a proportionate amount of the purchase-money found by the lower Courts, on or before the 31st May, 1885; that, on such payment being duly made, they do recover from all the defendants five-sixths of the costs incurred by them in all the Courts, but that in default of such payment the suit do stand dismissed with costs in all Courts: provided always that if the defendant Mahabir does not on or before the day above-mentioned duly deposit into Court one-sixth of the purchase-money above-mentioned in enforcement of his decree in suit No. 201, the plaintiff shall be entitled to obtain proprietary possession of the remaining one-sixth of the property in suit on payment of the proportionate amount of purchase-money into Court on or before the 15th June, 1885, and then, the whole suit will stand decreed with costs in all the Courts; but that in default of either of the two payments aforesaid being duly made by the plaintiffs, the whole suit will stand dismissed with costs in all the Courts.
And for the same reasons a similar decree, mutatis mutandis, will be substituted for the decree in suit No. 201, namely, that in suit No. 201 he plaintiff-pre-emptor Mahabir do obtain proprietary possession of one-sixth of the property in suit on payment into Court of a proportionate amount of the purchase-money found by the lower Courts, on or before the 31st May, 1885, that on such payment being duly made, he do recover from all the defendants one-sixth of the costs incurred by him in all the Courts, but that in default of such payment, the suit do stand dismissed with costs in all the Courts: provided always that if the defendants, Raghunandan Rai, Bhajna Rai, Jageshar Das, Parmanand Rai, and Sheotahal Rai do not, on or before the day [730] above-mentioned, duly deposit into Court five-sixths of the purchase-money above-mentioned in enforcement of their decree in suit No. 195, the plaintiffs shall be entitled to obtain proprietary possession of the remaining five-sixths of the property in suit on payment of the proportionate amount of the purchase-money into Court on or before the 15th June, 1885, and then the whole suit will stand decreed with costs in all the Courts; but that in default of either of the two payments aforesaid being duly made by the plaintiffs, the whole suit will stand dismissed with costs in all the Courts.
Oldfield, J.:— The mauza consisted of two mahals; one of the latter held twelve pattis, and one of these, Thakur Das patti, was divided and constituted into a separate mahal. The wajib-ul-arz for the mahal, as the mahal originally was constituted prior to partition of patti Thakur Das, contained a condition for pre-emption in favour of the shareholders of the mahal, that the right accrued first to the shares in the thoke in which the property sold was situated, and then to shareholders in other; thokes. It appears that Harbans Rai, vendor, who holds property bosh in the pattis which remain with the original mahal and in the patti of Thakur Das forming the new mahal, has sold property in both to Jai Ram, a stranger; and the plaintiff, who is a sharer in a patti in the original mahal, sues for pre-emption in respect of the property in it which has been sold, excluding that sold in the new mahal Thakur Das's patti, which he does not claim. The claim has been decreed, and the vendee in appeal contends that the plaintiff cannot pre-empt a portion of the property sold to the exclusion of the property in mahal Thakur Das. The contention is not valid. The condition as to pre-emption only affected the shareholders of the mahal as long as they remained shareholders, and ceased to have effect upon those shareholders and their property who separated themselves and their property by forming a separate mahal. The plaintiff could after the separation exercise no right of pre-emption against and in respect of shareholders and property as so separated, nor could the separated shareholders exercise any right of pre-emption against the plaintiff and his property remaining in the mahal from which they had separated. The next plea refers to the method by which the consideration payable by the pre-emptor has been determined, but on this point the judgment [731] does not appear open to objection. The appeal fails and is dismissed. This decision affects appeals Nos. 497, 498, and 499. The decree in the suit, will be in the terms proposed by my learned colleague.