JUDGMENT Henry Richards, C.J.
1. This appeal arises out of a suit for pre-emption. The appellant is the vendee. The main facts are simple and admitted. The property is situate in a village of the name of Palakher. In the year 1863 and up to the year 1905, the village consisted of a single mahal. Then there was a partition and the village was' divided into five separate and independent mahals. On the 12th of July 1909, Bhawani Das executed the sale-deed, which has given rise to the present suit in favour of Kunwar Ahmad Sayed Khan, the appellant. The property, which the plaintiff seeks to pre-empt, and which was the subject-mattar of the sale-deed, is situate in Mahal Bhawani Das. This mahal is divided into four portions. Three of these portions, which constituted the greater part of the mahal, were the property of the vendor Bhawani Das. The defendant vendee was at the time of sale the mortgagee in possession of the first of these divisions, namely, a share covering an area of 902 bighas, 16 biswas, 3 biswansis. The mortgage included specific land consisting of 7 bighas and 10 biswas but out of this 7 bighas and 10 bighas, 5 bighas odd had been redeemed by the mortgagor Bhawani Das. The sale comprised divisions 1, 2 and 3 of the mahal. The remaining division was separately held by another person who is no party to the suit. It will thus appear that at the date of the sale,'the defendant vendee was a mortgagee in possession of the whole of the first division of Mahal Bhawani Das, save the 5 bighas Odd specific land which had been redeemed. The plaintiff had no share of any kind in Mahal Bhawani Das, either as proprietor or mortgagee. His property was situate in a totally independent mahal. This fact, in the view I take of the case, is a matter of importance, which requires to be carefully borne in mind;
2. The wajib-ul-arz of 1863 was given in evidence. The sixth Clause commences with the heading "As to transfer of property." The property is mortgaged as follows: '(Then follows the details of some 14 mortgages and it proceeds) "in future, every co-sharer mortgagor or mortgagee shall as such be at liberty to make transfers. But he shall make transfers first in favour of his own and ek-jaddi (collateral) brothers, and after them in favour of co-sharer's in the khata and patti as well as in favour of the proprietors of the village. If none of them take the share, he shall be competent to make transfers in favour of strangers, If there is a dispute regarding difference in consideration, it shall be decided by arbitration. Amongst us, the Muhammadans (except Malhu), the devolution of property, after death, takes place according to the Muhammadan Law. The custom regarding the distribution of property in the family of Malhu is as follows: 'if there are sons living, the daughters have no right at all and if there is no male issue, the daughter gets shares and if there is no daughter, the wife shall be the owner. If there be issue by two wives, the estate shall be divided among the issue. And if there is issue by one wife but none by the other, the childless wife shall continue to get her maintenance allowance for life from the issue of the other wife. A wife not lawfully married and her issue have no right at all. Among the Hindus, the female issue have no right whatsoever. On the death of a mortgagee in possession of property, the male issue become owners and in case he is childless, his wife and on the latter's death, the heirs of her husband become owners.'"
3. The wajib-ul-arz of 1870 was also given in evidence. It is practically speaking a copy of the wajib-ul-arz of 1863. It commences with the same heading, proceeds to give the particulars of a number of mortgagees, and then contains a clause which is almost verbatim the same as the extract from the previous wajib-ul-arz, which I have already quoted. Paragraph 14 is as follows: "Custom as to pre-emption--Pre-emption is allowed."
4. The dustur dehi of 1888 was also given in evidence but it contains no reference of any kind to pre-emption.
5. The only other evidence in the case was a judgment of the Subordinate Judge of Meerut, dated the 2nd of June 1875, which was confirmed by the High Court on the 23rd of August 1876. In this case, pre-emption was allowed. Neither party in the argument in this Court relied very much upon this judgment. In that suit, the claim to pre-emption was based upon a claim by the plaintiff to be a relative descended from a common ancestor, and also on the ground that he was a co-sharer whilst the vendees were strangers. The question, which arises in the present appeal viz., whether the plaintiff, who is neither a relative nor a co-sharer with the vendor, has a right of pre-emption), does not appear to have arisen or been argued, and when the case came to the High Court, it was only on a question of the amsant of the consideration. This suit arose during the currency of the Settlement of 1870. The question of the existence or non-existence of a custom did not arise and was, therefore, not decided. No instance of the exercise of the custom was given.
6. What I have stated above represents the entire evidence in the present case. The question is does the evidence establish the existence of a custom of pre-emption entitling the plaintiff to pre-empt the property in question as against the defendant vendee? The onus lay upon the plaintiff and it must be remembered that it was necessary for him not merely to establish the existence of some custom of pre-emption but he had to establish the existence of a particular custom which entitled him to pre-empt as against the defendant.
7. I have already pointed out that while the defendant vendee was a mortgagee in possession of a substantial part of the Mahal Bhawani Das, the plaintiff had no property in that mahal at all. The plaintiff was not a co-sharer in any property with the vendor. No joint and several responsibility existed between the plaintiff and the vendor for the payment of Government Revenue. The plaintiff had no right to interfere in any way with the management of any part of the property comprised in the Mahal Bhawani Das. He was a total "stranger", in the sense that he did not belong to the co-parcenary body which held Mahal Bhawani Das.
8. Has the plaintiff established, the existence of a custom which gives him a right to preempt as against the defendant by the production of the We wajib-ul-arqiz above mentioned? It is contended on his behalf that the classes in the" wajib-ul-arz show that every proprietor must before selling his property offer it to the other proprietors, in the village, and that while he has to admit that he is not a proprietor in the mahal, he is a proprietor in the village, In my judgment, the existence or non-existence of acustom of pre-emption cannot be said to depend upon the construction of a wajib-ul-arz. The. wajib-ul-arz is not the custom. It is merely evidence and, as was pointed out by their Lordships of the Privy Council, there is no class of evidence that is more likely to vary in wife according to circumstances than that of the wajijb-ul-araiz see Thahur Anant Singh v. Thahur Durga Singh 32 A. 363 at p. 373 : 14 C.W.N. 770 : 7 A.L.J. 704 : 12 C.L.J. 36 ; 12 Bom. L.R. 504 : 8 M.L.T. 79 : 6 Ind. Cas. 787 : 20 M.L.J. 606 : 13 O.C. 163 : 37 I.A. 191 : (1910) M.W.N. 324. It is true that in that case their Lordships were not considering a custom of pre eruption, but it seems to me impossible to contend that there is any difference between the mode of proof of a custom of pre-emption and any other custom. All customs must be proved by sufficient evidence and the more unusual and improbable the alleged custom is, the more cogent; ought to be the evidence required to prove it. The language of the wajib-ul-araiz must, of course, be considered and receive due weight, but the other circumstances must not be overlooked.
9. I pause for a moment to consider the state of things in the village in the years 1863 and 1870. At that time, every proprietor in the village was a co-sharer with the others in the unit, viz., the mahal. Does it not follow that the wajib-ul-araiz of 1863 and 1870 are of little or no value in considering the question of the existence of an alleged custom giving a right of pre-emption to a person who is not a co-sharer and has no community of interests or responsibility with the vendor. Assuming the references in these wajib-ul-araiz to be references to a custom of pre-emption rather than to an arrangement between the co-sharers, it is absolutely clear that at that time any custom which' existed was a custom between co-sharers or mortgages of co-sharers in an undivided unit assessed to Government revenue.
10. The cause for partition is that some of the co-pacenary body have become dissatisfied and desire that it should no longer remain whole.
11. The result of perfect partition is that the old co-parcenary body ceases to exist and new co-parcenary bodies in each mahal are created. If the reason for customs of pre-emption is to avoid the introduction of a stranger, the custom which the, plaintiff alleges would defeat the object. In the events that have happened, the plaintiff is now an outsider so far as Mahal Bhawani Das is concerned.
12. The plaintiff's case is practically based on the contention that on the construction of the Wajib-ul-arz, he as a proprietor in the village has a right of pre-emption. I have already stated that the wajib-ul-arz is not the custom. It is merely evidence, sometimes cogent evidence, Sometimes of little or no value, as pointed out by their Lordahips. It is well known that the wajib-ul-arz was frequently; drawn up by ignorant officials drawing small salaries. We have had many instances in which we have had to discard the wajib-ul-arz as absolutely worthless. I can remember one case of a purely Muhammadan village which had once belonged to Hindus where the wajib-ul-arz recorded elaborate customs as to adoption. In my opinion, it was due to the practice which crept into the Courts of attempting to decide pre-emption cases on the so called construction of the wajib-ul-arz, disregarding all other evidence and circumstances, which led to the confusion and conflict of authority which was nothing short of a public scandal and which has called for legislative interference.
13. To return to the present case. As already Stated, the evidence consists, practically speaking, of the wajib-ul-arz of 1863 and the wajib-ul-arz of 1870. It seems to me that these documents almost negative the existence of any custom of pre-emption. It is admitted by both sides that if they only refer to contracts or arrangements, such contracts or arrangements came to an end with the expiration of the Settlements.
14. The extracts begin by referring to a number of mortgages. These mortgages were evidently made to persons who were strangers. This in itself is some indication that prior to 1863, there was no custom of of pre-emption. It then goes on to speak of what is to be the practice in the future. We then find that the wajib-ul-arz is not signed by the co-sharers alone but also by several of the mortgagees. These circumstances, seem strongly to suggest that it was not an existing; custom that was being recorded in the wajih-ul-arz but an arrangement for the future between there members of the co-parcenary, body including the mortgagees of such members thereof as had mortgaged their shares.
15. If necessary; I should; be quite prepared to hold that the evidence does not establish the existence of any custom of pre-emption but I am satisfied that the plaintiff who has no interest in the mahal in which property is situated, has altogether, failed to prove a custom giving him a right of pre-emption against the defendant vendee who was a mortgagee. in possession of property in that mahal.
16. The main object of the custom of pre-emption is to avoid, admitting a stranger into, the co-parcenary body. See the Full Bench case Dalganjan Singh v. Kalka Singh 22 A. 1 at p. 12. It would almost appear that, the wajiba-ul-arz, relied on by the plaintiff recognized mortgages of co-sharers as co-sharers. The defendant was far less a 'stranger' than the plaintiff.
17. I would allow the appeal.
Tudball, J.
18. I fully agree, with the learned Chief Justice.
19. The plaintiff bases his right to pre-empt on a custom. The onus of proving the custom is on him.
20. The only evidence on the point consists of entries in the waji-ul-araiz, drawn up at the Settlement of 1863 and 1870 and a judgment in a pre-emption suit in 1875.
21. This judgment is no evidence of custom. The word custom is not to be found therein and it does not show that a custom was alleged on one side and denied or admitted on the other nor is there a decision on the question of custom.
22. Not one single instance of the exercise of the custom is alleged. As for the two wajib-ul-araiz, two points stand out clear in my mind: (1) They set out transfers that have been made in the past and set down an arrangement for the future made between both co-sharers and mortgagees; (2) it is clear that mortgagees were treated by the co-parcenary body as if they were co-sharers in the true sense of the word.
23. It is urged that under the rulings of this Court, it must be taken for granted that these entries relate prima facie to an existing custom. Assuming this the argument is met by the fact that not a single instance can be quoted of the custom having been exercised. To my mind, two very ambiguous entries of this kind are totally insufficient evidence to establish a custom. There remains for consideration the effect of the partition.
24. Assuming the custom to exist after partition (which was in existence before), the fact remains that such a custom gave right of pre-emption to a person who was a co-sharer with the vendor in the same unit to wit the mahal. A wajib-ul-arz is prepared not for a village but for a mahal.
25. After the partition which was a perfect partition, the plaintiff's mahal and the vendor's mahal became as separate in every way as two separate villages and there remained no community of interest between their owners. Each of the latter became a stranger to the mahal of the other. The custom gave no right of pre-emption to a person who" was not a co-sharer in the mahal in which the vended property was situate. Lastly, the vendee in the present case, being a mortgagee with possession, in the same mahal as the vendor, would, under these wijib-ul-araiz, if they had any force as evidence of custom, be entitled to purchase even as against the pre-emptor.
26. I would, therefore, allow the appeal.
27. The appeal is allowed. The suit will stand dismissed with costs in all Courts including in this Court fees on the higher scale.