JUDGMENT
1. This is a plaintiffs appeal arising out of a suit for pre-emption. The Court of first instance had decreed the plaintiffs' suit, but on appeal after some further evidence had been taken the learned District Judge dismissed it. His findings ore that the plaintiff and the vendor are co-sharers in the same mahal in which the property in dispute is situtaed and that a custom of pre-emption exists in the village. There is a further finding that the defendant vendee is recorded as a mortgagee in possession of some share in the same mahal. On this latter finding the learned District Judge was of opinion that the defendant himself was a co-sharer and that, therefore, the plaintiff had no preference over him. The entry as to the custom of pre-emption in the wajib-ul-arz is as follows:
2. Every owner of a patti will lave the right of transferring his share in the property first in favour of bahi haqiqi eh jaddi (own brothers descended from a common ancestor) and in case of their refusal to other co-sharers in the village.
3. It seems to us that, even after baying made a mortgage of his share, a co-sharer would have a proprietary interest left in him so as to entitle him to bring a suit for pre-emption. In the same way, the mere fact that a person has taken a possessory mortgage of a share in the village would not give him proprietary interest in it. If the true interpretation of the wajib-ul-arz were that a mortgagee in possession was to be deemed a sharik deh then the result would be that the right of pre-emption would be defeated by making a mortgage on one day followed by a sale to the mortgagee the next day. It is true that for certain fiscal purposes a mortgagee in possession is treated under the Land Revenue Act as a co-sharer but we are of opinion that be cannot be treated as a proprietor of the village. Under the Muhammadan Law there can be no doubt that it is only a person having an absolute interest in the property who has the right of pre-emption. The entry in the wajib-ul-arz does not show that a mortgagee is to be deemed a co-sharer for the purpose of pre-emption. In this view of the matter we think that the defendant mortgagee could not resist the claim for pre-emption on the ground that he was himself a person entitled to an equal right with the plaintiff. We accordingly allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs including in this Court fees on the higher scale.