JUDGMENT
1. This appeal arises out of a suit for pre-emption. The Wajib-ul-arz translate at page 11 of the paper book is as follows:
If any co-sharar should wish to sell or mortgage his property, then first he shall transfer it to a co-sharer in the patti and after that to other pattidars of the mahal and after that to the owners of the other mahals and in case of their refusal, he is at liberty to transfer it to an outsider at the same price as a stranger would be willing to give.
2. The only exception taken on this translation is by the respondents who say the proper translation of the concluding word3 is “the same price as a stranger gives”. Perhaps the most literal translation would be the same price which a stranger may give. The respondents rely of the case of Khatun Bibi v. Sayida Bibi 27 A. 457 : A.W.N. (1905) 45 : 2 A.L.J. 689 and also on the case of Narain Saran Singh v. Sidh Narain Singh 5 A.L.J. 655 : A.W.N. (1908) 251. In both cases it was decided that the right of pre-emption only arose in the case of sale to a stranger. In the first mentioned case the learned Judge says at page 458: “The Clause in the wajib-ul-arz relating to pre-emption begins with the recital that for such price as a stranger (shakhs gair) may pay, pre-emption may be claimed by three classes of persons mentioned in the document. The intention, therefore, seems to be that it is only when the sale is made to a stranger that the right of pre-emption arises”. In the second case the same learned Judge says at page 657: “After considering the terms of these documents we are of opinion that the conclusion at which the learned Judge has arrived is correct. The wajib-ul arzes begin by saying that for such a price as a stranger may pay the persons named in the document may in their order claim preemption. In some of these documents it is stated at the end that the right of pre-emption would arise only in the case of a sale to a stranger. The use of the word ‘stranger’ indicates that it was intended that the right-of pre-emption would arise only in the case of a sale to a stranger”. It must be noted that both these judgments are based on the position, in which the words stranger or the price that a stranger would give’ are placed in the wajib-ul-arz. Whether this is a very satisfactory ground for decision it is not for us to say. In the case of Ram Lal v. Niadar 4 A.L.J. 352 : A.W.N. (1907) 95 the learned Judge says as follows at page 353: “By the terms of the wajib-ul-arz it is provided that if any co-sharer desires to dispose of a share, he must offer it first to a bhai ek jaddi, the second category being to co-sharers in the thok or patti and the third to other co-sharers and the sale in all cases to be at a reasonable price. Then comes the condition that the bhai ek jaddi will have to pay the same price as that offered by a stranger”. The learned Judge then proceeds in delivering the judgment of the Court to hold that there was a right of pre-emption between co-sharers inter se. In an unreported case in F.A.F.O. No. 105 of 1907 a Bench of this Court decided that a right of pre-emption inter se existed, the term of the wajib-ul-arg in that case was almost identical, if not quite’ identical, with the wajib-ul-arz in the present case. It was translated in the judgment appealed from as follows: “If any co-sharer desires to transfer his share, then first entitled to purchase will be the co-sharer of the patti on that price which is paid by a stranger, after that in case (of refusal) he can transfer it to any other co-sharer”. The case of Khatun Bibi v. Sayida Bibi 27 A. 457 : A.W.N. (1905) 45 : 2 A.L.J. 689 is cited and referred to in the judgment of the learned District Judge. The judgment of this Court is not very lengthy but it is a clear confirmation of the decision of the District Judge. One of the members of the Bench was the very Judge who decided the case of Khatun Bibi v. Sayida Bibi 27 A. 457 : A.W.N. (1905) 45 : 2 A.L.J. 689. To go back to the question of the true construction of the wajib-ul-avz in the present case we think it is quite clear that the concluding words were introduced for the purpose of regulating the price. The pre-emption Clause in the wajib-ul-arz would really be complete without these words. It commences by providing that when any co-sharer wishes to sell or mortgage then he shall first offer it to a co-sharer in the patti and after that to co-sharers of other pattis in the mahal and after that to other co-sharers of other mahals. To give the wajib-ul-arz the construction claimed by the respondents, one should read the wajib-ul-arz some what thus: “If any co-sharer should wish to sell or mortgage to a stranger, etcetra”. In other words it would be necessary to introduce the word stranger” at the commencement of the clause. We think this would be a strained construction to be placed on the document. The case being decided on a preliminary point, we allow this appeal, set aside the decree of both the Courts below and remand the case to the Court of first instance through the lower appellate Court with directions to re-admit the case and hear and determine it according to law. Costs here and hitherto will be costs in the cause. Costs in this Court will include fees on the higher scale.
