JUDGMENT
1. This appeal arises out of a suit for pre-emption. There were three plaintiffs and amongst the defendants was the vendee named in the sale-deed of the 29th of April £1915, There was also another defendant named Bhagwat Rai, to whom a portion of the property was transferred on the 25th of April 1916. The plaintiffs, in addition to claiming to be entitled to pre-emption, challenged the fact of the consideration, alleging that the consideration in the sale-deed was not the true consideration. The defendant denied the existence of the custom, stating that the consideration in the sale-deed was the real consideration, and the special defence was put in by Bhagwat Rai to the effect, that since the institution of the suit a portion of the property was transferred to him and that he was a co-sharer and that accordingly the plaintiffs could not obtain a decree against him in any event. There was a common defence that one of the plaintiffs not being a co-sharer either at the time of the original sale or at the date of the institution of the suit, the plaintiffs' claim should be dismissed on this ground. The Court of first instance decreed the plaintiffs' claim as against all the defendants. The lower Appellate Court dismissed the suit. The plaintiffs adduced in evidence an extract from the wajib-ul-arz of 1880 (or 1881) and an extract from the wajib-ul-arz for partition for 1884. The lower Appellate Court seems to have been of opinion that the entry in the wajib-ul-arz of 1880-1881 only recorded a right co-extensive with the Muhammadan Law of pre-emption and inasmuch as the formalities required by Muhammadan Law had not been performed the plaintiffs' suit failed. The learned Judge did take into consideration the entry in the wajib ul-arz of 1884, but he considered that document altogether apart from the entry in the waiib-ul-arz of 1881. He thought that the entry in the wajib-ul-arz of 1884 must be regarded as the record of a contract which he considered not to be binding on the defendants. The entry in the wajib-ul-arz of 1881 is that all the co-sharers can sell their property subject to the right of pre-emption. The entry in the wajib-ul-arz of 1884 gives considerable details and shows how the property must first be offered to other co-sharers. In the case of Ram Prasad v. Abdul Karim 9 A. 513 : A.W.N. (1887) 146 : 5 Ind. Dec. (N.S.) 780 it was held that the right of preemption proved in that case must be taken to be a right to pre-emption according to Muhammadan Law. The words used were: "A custom of pre-emption prevails according to the usage of the country." There was no other evidence given in the case as to what the custom was, and it was expressly upon this ground that the "judgment of the Court proceeded. We may assume that the words in the wajib-ul-arz of 1881 are no more definite than the words used in the case quoted; but in the present case it seems to us that there clearly was evidence as to what the custom was, and this evidence is the extract from the wajib-ul-arz of 1884, It seems to us that once you find that a custom of pre-emption did exist in the year 1880, the further reference to a right of preemption in the wajib-ul arz of 1884 ought to be taken as referring to the same right of pre-emption as was recorded less completely no doubt in the wajib-ul-arz of 1880. Accordingly in the present case we have evidence which shows that the right of preemption was the usual right which we find prevailing in many parts of the country, that is to say, that a co-sharer who wishes to sell must first offer his share to other co-sharers. Sometimes the custom is a custom which requires the offer to be made to near relations, or persons who are "near" in the shares that they hold. We think under these circumstances that the decision of the Court below was incorrect, and that the Court ought to have held, affirming the Court of first instance, that the custom of preemption prevailed. We may say in passing that having regard to the fact that the cases were tried together by consent of the parties, the Court was quite wrong in not considering the evidence that was given in the connected case. Even if the learned Judge was technically correct (we do not think he was), he ought certainly to have allowed the document to be brought on to the record. It was evidence which was used apparently without objection in both cases by the Trial Court.
2. The lower Appellate Court has found that the transfer to Bhagwat Rai was a genuine transaction, and this is a finding whioh is binding upon us in second appeal. Even if the transfer to Bhagwat Rai was made for the express purpose of preventing the plaintiffs pre-empting his property, it would be nevertheless w good transfer, provided it was a real transfer and not a pretended transfer. Before finally deciding the appeal we think it necessary to refer certain issues to the lower Appellate Court:
(1) Was the plaintiff No. 1 a co-sharer on the 29th of April 1915 and at the date of the institution of the present suit?
(2) What was the true consideration for the sale of the 29th of April 1915 ?
(3) What is the value of the property transferred to Bhagwat Rai as compared with the rest of the property in suit?
(4) Are the plaintiffs and if so, which of them nearer co-sharers to Bhagwat Rai either in relationship or space?
3. The parties may adduce further evidence relevant to the last issue. The other issues will be decided upon the evidence already on the record, that is to say, the evidence that was taken in this and the connected suit No. 131. On return of the findings the usual ten days will be allowed for filing objections.