JUDGMENT
1. This is a defendant's appeal arising out of a suit for preemption brought to pre-empt the property sold under a deed dated 29th September 1924 by Mahadeo to Phul Chand the defendant-appellant. The sale consideration mentioned in the deed was Rs. 12,201. The plaintiff alleged that he was a cosharer in the village and the defendant vendee was a stranger and that the true sale consideration was only Rs. 10,000. The suit was defended by the defendant on various grounds. In the first place it was denied that the plaintiff was a cosharer and it was pleaded that the alleged adoption set up by him was invalid. It was further pleaded that the defendant had become a cosharer in the mahal by virtue of a gift taken on 17th December 1924 and was entitled to defeat the claim. It was further pleaded that the Bundelkhand Alienation of Land Act was a bar to the present claim. The learned Subordinate Judge has found all the issues against the defendant and has decreed the claim, giving the plaintiff half of his costs from the defendant.
2. The defendant has appealed and the plaintiff has filed a cross objection only as to costs. The question of consideration is not now in dispute before us. The plaintiff had sought to meet the defence as to the invalidity of the adoption by setting up a custom under which a married man could be validly adopted. The finding of the Court below on this point is against the plaintiff. In the oral evidence led on behalf of the plaintiff some instances were sought to be established and it was stated that in his caste such adoptions are allowed. The evidence no doubt was meagre and the Court below has rejected it. We are not prepared to reverse that finding.
3. The learned Subordinate Judge seems to have thought, to quote his actual words, at all events he is a recorded co-sharer and entitled to pre-empt." In our opinion this view is not correct. The present case is governed by the Agra Pre-emption Act No. 2 of 1922 and the rulings under the old law are not applicable. A cosharer is defined in Section 4, Sub-clause (1), as meaning any person other than a petty proprietor entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors. The expression "entitled as proprietor" obviously means that he must possess proprietary interest in the mahal and not merely possession over a share in the mahal. It seems to us that merely possessory title would not make a person whose name is recorded in the khewat as cosharer entitled as proprietor to a share. The plaintiff therefore in order to succeed must show that he has got a proprietary interest in this mahal.
4. In the evidence the plaintiff's case was that he was duly adopted by the widow of Gobind Ram under authority from her husband. It is an admitted fact that he was about 21 or 23 years of age and was married and in fact had children alive at the time when he was adopted. The fact of adoption is fully proved and that finding has not been challenged before us. The plaintiff is a Marwari Brahmin and without proof of a custom which would allow such an adoption the plaintiff's adoption cannot be accepted as valid. The learned Subordinate Judge seems to think that the adoption having been an accomplished fact of about 30 years standing it should be accepted but mere lapse of time cannot cure the illegality of it. We are therefore constrained to hold that in spite of the fact that this adoption has remained unchallenged for such a long interval of time the plaintiff cannot claim proprietary title on its basis. It is also quite clear that the plaintiff had not acquired proprietary title by prescription when he brought the suit. Admittedly Mt. Kesar Kuar died on 27th November 1913 within 12 years of the suit and there could be no adverse possession against the reversioners whilst she was alive. Before the full period of 12 years expired the plaintiff had not become a proprietor by means of adverse possession and therefore had no locus standi to sue. It therefore seems to us that the plaintiff cannot succeed on any supposed adverse possession. He cannot mature his title during the pendency of the suit.
5. He, however, falls back on his evidence that he himself is the nest reversioner and heir to the estate of Gobind Ram whose widow purported to adopt him. Unfortunately no clear issue on this point was framed by the Court below and this matter was supposed to be covered by issue, 7 "Has the plaintiff a title to sue." The plaintiff went into the witness-box and recited his pedigree and stated that he was an heir in the family and that in Govind Ram's family there was no other reversionary heir except him. He gave a long pedigree which he said he had learnt from his father. Another witness Pahlad Das Bhat was produced who proved a book said to contain the full pedigree of this family. The full extracts from it are printed in the supplemental record and an abstract pedigree was given by the witness in his deposition. According to that pedigree the plaintiff was in the thirteenth degree from the common ancestor Devakaran including both the common ancestor and the plaintiff, and Gobardhan whose widow purported to adopt him was in the 14th degree including both the common ancestor and himself. There was no rebutting evidence nor did the defendants set up any other person as being a nearer heir. There was further the circumstantial evidence that the plaintiff's adoption ceremony took place some 30 years ago and no one has come forward to challenge its validity. There is the additional fact that for nearly 12 years since the death of the widow he had been in exclusive possession of the estate and no prompt steps were taken to oust him. There is no suggestion that even during the pendency of the suit any claimant has come forward to recover the estate. Having regard to this state of the evidence the Court below recorded a finding:
The plaintiff has filed a book called Bansawali showing that the plaintiff and Govind Ram were descendants of the same common ancestor Devakaran. In this respect also he becomes an heir to Govind Ram.
6. This in our opinion is a finding that he is the next heir to the estate of the deceased. In the absence of any evidence to the contrary we are not prepared to upset this finding. We accordingly hold that the plaintiff is a proprietor and therefore a cosharer within the meaning of Section 4, Sub-clause (1).
7. In the argument it was suggested that the 14th degree ought to be counted from the propositus and not from the common ancestor. The view of this High Court has consistently been that the counting is to be from the common ancestor. We may in this connexion refer to the case of Ram Baran Rai v. Kamala Prasad [1910] 32 All. 594 where a collateral thirteen degrees removed from the ancestor was held to be a heritable heir. This view is somewhat confirmed by the ruling of their Lordships of the Privy Council in the case of Ram Chandra v. Vinayak Venkatesh A.I.R. 1914 P.C. 1 where also the counting for the sapinda relationship was taken from the common ancestor and not from the propositus (p. 312).
8. We further think that there is no force in the plea that there is anything in the Bundelkhand Alienation of Land Act (No. 2 of 1903) which defeats the claim. It has been ruled in the case of Phul Chand v. Ram Nath A.I.R. 1928 All. 186 that a person is not entitled to pre-empt land in Bundelkhand if he is not entitled to purchase it, but under Section 3 of the Act a person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where an alienor is not a member of an agricultural tribe. Section 4 lays down how the Local Government by notification in the Gazette may determine what bodies of persons in any district or sub-division of a district should be deemed to be agricultural tribes for the purposes of this Act. The Local Government by Notification No. 1977-177 9 F ( U.P. Gazette 27 June 1903, Part 1 p. 490) has declared that all persons ordinarily residing in any of the districts and sub-divisions of a district to which the Bundelkhand Alienation of Land Act extends and belonging to any one of the tribes specified in the schedule annexed are to be deemed to be agricultural tribes. The necessary condition of this obviously is that the person must ordinarily reside in the district or in a sub-division of it. In the present case the learned Subordinate Judge has rightly noted that even the witnesses for the defendants have not had the courage to go to the length of stating that Mahadeo did not reside in Gwalior. Their statement was that for some months in the year he also resided in Bundelkhand. This evidence is not satisfactory. In the sale-deed he has given his residence as Gwalior. He is admittedly a jagirdar and Honorary Magistrate in Lashkar, and the learned Subordinate Judge has pointed out that it is highly improbable that he resides permanently in Aupara. We accept the finding that his ordinary residence is at Lashkar and not in Bundelkhand. The Act therefore has no application and there is nothing to prevent the plaintiff from pre-empting the property.
9. The last plea is that by virtue of the gift dated 17th December 1924 the defendant has become a cosharer on the same footing as the plaintiff. It has been held by a Pull Bench of this Court in the case of Ram Saran Das v. Bhagwat Prasad A.I.R. 1929 All. 53 (S.B.), that a gift taken during the pendency of the suit can defeat the claim. But obviously it must be a gift of proprietary interest which would make the defendant a cosharer. The learned Subordinate Judge has found that this gift was a fictitious gift and that as a matter of fact no proprietary interest had been left over after the sale-deed to be gifted. Under the sale-deed dated 29th September 1924 (p. 53) the entire 16 annas of the new mahal which corresponded to 14 annas 2 pie, 20 cowrie share of the old mahal was sold "with the exception of a grove in the village." No number of this grove was given nor was its area mentioned. As it stood it suggested that the entire mahal was sold but the rights of the grove-holder in a certain grove were reserved. That this was the intention of the parties is made abundantly clear by their subsequent conduct. On 5th November 1924 an application for mutation of names was filed in the revenue Court in which the amount of the property was described as 14 anna 2 pie 20 cowrie former share 16 anna mahal; that is to say the present share being 16 annas (p. 57.) On 22nd November 1924 Phul Chand was examined in the revenue Court and stated:
I purchased the property of Mahadeo amounting to a 14 anna 2 pie and 20 cowrie share former 16 anna mahal.
and also said:
There is khudkasht land of more than 12 years standing and it is in possession of Mahadeo....
10. A settlement has been arrived at between the parties "as regards rent." Similarly Ram Prasad the karinda of Mahadeo was examined and stated that Mahadeo had sold his 16 anna share and that there was khudkasht land of more than 12 years standing and a settlement about rent had been arrived at between the parties. He further stated:
My employer is in possession of the khudkasht land and it should be the ex-proprietary holding of my employer.
11. Kalka Prasad, patwari, also was examined and deposed that there was khudkasht land of more than 12 years standing in possession of Mahadeo, and that a decision about rent had been arrived at between the parties, and that the name of Phul Chand should be entered in the papers in place of Mahadeo against 16 annas. The revenue Court accordingly ordered that the name of Mahadeo be removed and the name of Phul Chand be entered against a 16 anna share entered in the khewat. The Assistant Collector noted that exproprietary tenancy had accrued, and remarked that proceedings relating to it would be taken separately.
12. It is quite clear from these proceedings in the revenue Court that everybody understood that the entire 16 anna share in the mahal had been transferred and that only the exproprietary right or tenancy right had been left about which there was some agreement as regards rent and which the Collector was to assess subsequently. There was no suggestion in these proceedings that any part of the proprietary interest in the mahal had been excluded from the sale. Had that been so the name of Mahadeo could not have been removed altogether. On 29th November 1924, the rent of this cultivatory holding appears to have been assessed at Rs. 25.
13. On 11th December 1924 the present suit was instituted and on 17th December 1924 Mahadeo purported to make a gift of the grove which had been excluded from the sale and described it as representing 15 cowrie, 2 dant share in the mahal. On the basis of this gift (p. 67) an application for mutation of names was made (p. 69) and there was also an application for correction of papers (p. 71) filed on 7th January 1925. The case put forward now was that a share in the mahal amounting to 15 cowrie and 2 dant and representing the grove which covered an area of 4.09 acres had been left out of sale and was subsequently gifted to Phul Chand and that the previous assessment of rent was due to an error. The pre-emptor appears to have intervened and objected to this application. On 15th January 1925 the Tahsildar reported (p 73) pointing out under what circumstance the mutation of names had been effected with regard to the entire 16 annas. The Assistant Collector, however, held on 4th March 1925 (p. 75) that the rights of Mahadeo in the grove had been excluded from the sale and they were rightly transferred by the gift and he ordered Phul Chand's name to be entered as against 4'09 acres haqqiyat mutafarriqe (miscellaneous property). This order was confirmed on appeal (p. 77). The learned Collector held that a definite portion of the property had been reserved and the same could have been gifted. He, however, held that the reserved portion was not and should not be shown as a fraction of the 16 anna mahal but merely as a miscellaneous property.
14. It seems to us that the view of the learned Subordinate Judge that the entire zemindari rights in the 16 anna share had been sold is correct. The language of the sale-deed as well as the subsequent proceedings all go to show that only cultivatory rights or rights of a grove-holder were reserved and it was understood that rent would be assessed on that land but no proprietary interest was excluded from the sale. The idea of making a gift of it only arose after the institution of the pre-emption suit and the gift was a mere device to find an excuse for defending the claim. We agree with the Court below that under this deed of gift no proprietary interest in the mahal was validly transferred so as to place the vendee on a footing equal to that of the plaintiff. The defendant accordingly cannot succeed on its basis. The result, therefore, is that this appeal is dismissed with costs. The cross-objections as to costs have not been pressed before us. There is a deficiency in the amount paid by the respondents for translation and printing. The decree will not be prepared till that deficiency has been made good.