JUDGMENT Karamat Husain, J.
1. The facts out of which this second appeal has arisen are as follows:
One Ismail Khan on the 9th of December 1900, sold a share in the khalsa land of Bazidpur to Ram Lal. Bahadur Ali Khan brought a suit for pre-emption under the Muhammadan law, presumably under the Hanafi school. The vendee raised various defences. The Court of first instance, finding that the vendee Ram Lal was entitled to pre-empt under the wajib-ul-arz and that Bahadur Ali was entitled to pre-empt under the Muhammadan law, gave the latter a decree for half the property in suit on payment of half the price for which it had been sold. Both parties appealed. The learned District Judge coming to the conclusion that the custom of pre-emption recorded in the wajib-ul-arz superseded the rules of the Muhammadan law, and finding that Bahadur Ali was a near relation of the vendor, gave Bahadur Ali a decree for all the property in suit and dismissed the appeal of Ram Lal. Ram Lal has preferred this second appeal. The grounds of appeal are:
(1) The interpretation put upon the wajib-ul-arz is wrong.
(2) The words in the wajib-ul-arz relate to propinquity in space and not propinquity of relationship.
(3) The claim being based on the Muhammadan law, a decree under the wajib-ul-arz could not be passed.
2. The following facts have been found by the lower appellate Court: (1) Bahadur Ali is a co-sharer in the khalsa; (2) Ram Lal is also a co-sharer in the khalsa. The point on which the decision of this appeal turns is the interpretation of the wajib-ul-arz. The material portion of it may be rendered as follows:
The zamindar of the khalsa is one person; hence there is no custom of pre-emption in the khalsa; but among the owners (lit. owner) of the Jehalsa and milks the following custom of pre-emption obtains.
3. On the basis of the above extract from the wajib-ul-arz it is urged for the appellant that the wajib-ul-arz gives no right of preemption to the co-sharers in the khalsa inter se, but that there is a right of pre-emption between the owners of the khalsa and the owners of the milks in the sense that if a share in the khalsa is sold the owner of the milk is entitled to pre-empt. Whatever may be the correct meaning of the last portion of this peculiarly worded clause in the wajib-ul-arz, I can safely say that according to the plain meaning of the first part of the clause, the khalsa land is not subject to a claim for pre-emption under the wajib-ul-arz. Such being the case, the wajib-ul-arz has no application to the sale of the khalsa land, and a suit to pre-empt it can only be instituted under the Muhammadan law.
4. This leads me to determine the right of the pre-emptor and the vendee under the Hanafi school of Muhammadan law. The property sold belonged to a Muhammadan, and was therefore subject to pre-emption by those who were entitled to pre-empt under that law. The fact that it was purchased by a Hindu makes no difference. He purchased it subject to the right of pre-emption by the plaintiff. See Gobind Dyal v. Inayat ullah (1885) I.L.R. 7 All. 775.
5. It might, however, be contended that Ram Lal being a Hindu has not a right to pre-empt, although he is a co-sharer in the khalsa, but there is no force in this contention. "The principle of reciprocity," as remarked by Aikman, J., in Qurban Husain v. Chote (1899) I.L.R. 22 All. 102: at p. 104 "lies at the root of the law of pre-emption" and "according to the Hanafi law it is not necessary that the pre-emptor should be of the same religion as the vendor."
6. The conclusions at which I thus arrive are that:
(1) The khalsa land in Bazidpur is not subject to the right of pre-emption under the wajib-ul-arz.
(2) The case before us is to be governed by Hanafi law.
(3) Bahadur Ali and Ram Lal both have equal rights of preemption in respect of the khalsa land.
7. Following, therefore, Amir Hasan v. Rahim Bakhsh (1897) I.L.R. 19 All. 466, I set aside the decree of the lower appellate Court and give Bahadur Ali a decree for possession of half of the property in dispute on condition that the plaintiff shall deposit in Court within two months hence the sum of Rs. 734 which is half the purchase money. Ram Lal defendant will pay the costs incurred by the plaintiff in all Courts: on default his suit shall stand dismissed with costs in all Courts.
John Stanley, C.J.
8. I concur in the views expressed by my learned brother. The wajib-ul-arz which we have to interpret has a most novel provision as to pre-emption, and it is difficult to say what was in the minds of the parties when they agreed to be bound by it. But upon the whole I am disposed to think that the view which has been adopted by my learned colleague is correct. I therefore concur in the proposed order.
9. The order of the Court is that the decree of the lower appellate Court be set aside and that a decree for possession of half of the property in dispute be passed in favour of Bahadur Ali, on the condition that he deposit in Court within two months from this date a sum of Rs. 734. We give Bahadur Ali the costs of this appeal in all Courts in the event of the payment of the said sum within the time aforesaid. In default of payment his suit will stand dismissed with costs in all Courts.