Judgement Appeal from a-decree of the above Court (August 10, 1906) reversing a decree of the Subordinate Judge of Sitapur (January 16, 1905). The question decided was whether the plaintiff Ganesh Bakhsh Singh, represented by his widow the appellant, had in the circumstances of the case a right of pre-emption in regard to three villages part of taluqa Saraura and two pattis or sub-divisions of other villages which had been on September 13, 1902, sold by the second respondent to the first respondent, the then taluqdar. At the date of the sale the pedigree of the taluqdar, the vendor and the pre-emptor, was as follows Law. Rep. 37 Ind. App. 124 ( 1909- 1910) Thakurain Sheoraj Kunwar V. Thakur Harihar Bakhsh Singh 53 Thakur Basti Singh | ||| Baldeo bakhsh Singh Balwant Singh Uman Parshad Singh ||| ||| Bisheshar bakhsh Singh Ganga bakhsh Singh | (childless) | | ||| || Harihar bakhsh Singh | (1st respondent) | || ||| Jang Bahadur Singh Beni Madho bakhsh Singh Ganesh bakhsh (appellant) | | since deceased, | | now represented | | by his widow, | | Sheoraj Kunwar || || Gajadhar bakhsh Singh Widow (2nd respondent), since deceased, now represented by his widow, Sridevi Kunwar After the confiscation of all proprietary rights in Oudh, the second summary settlement of taluqa Saraura was made with Ganga Bakhsh as taluqdar. At the regular settlement of the province, Bisheshar Bakhsh and Uman Parshad claimed shares in the said taluqa, and the disputes were settled by a compromise made in 1864. By this compromise Ganga Bakhsh was to remain taluqdar, while Bisheshar Bakhsh and Uman Parshad were each to remain in possession of one quarter of the estate, as under-proprietors, paying to the taluqdar the Government revenue assessed on the villages comprising their shares, and, in addition, 10 per cent, of the Government revenue. The Settlement Court on May 6, 1864, made a decree in accordance with this compromise, and on December 14, 1864, allotted to each party specific villages and lands to be held in severalty as representing their shares. The villages in suit fell to the share of Uman Parshad. On the death of Ganga Bakhsh, the first respondent succeeded to his estate. Bisheshar Bakhsh died in 1865, and, on the death of his widow in 1879, Uman Parshad succeeded to his property. The villages in suit fell to the share of Uman Parshad. On the death of Ganga Bakhsh, the first respondent succeeded to his estate. Bisheshar Bakhsh died in 1865, and, on the death of his widow in 1879, Uman Parshad succeeded to his property. On the death of Uman Parshad, his two surviving sons Jang Bahadur and Ganesh Bakhsh succeeded him. Jang Bahadur died in 1893, leaving him surviving a son, Gajadhar Bakhsh. Disputes having arisen between Ganesh Bakhsh and Gajadhar Bakhsh, they were referred to the respondent Harihar Bakhsh for settlement as arbitrator. By his award, dated June Law. Rep. 37 Ind. App. 124 ( 1909- 1910) Thakurain Sheoraj Kunwar V. Thakur Harihar Bakhsh Singh 54 8, 1893, he divided the whole property of Uman Parshad between the disputants. The villages which fell to Gajadhar Bakhshs lot included the properties in suit. On November 18, 1893, the Deputy Commissioner of Sitapur ordered mutation of names to be made in accordance with possession taken under the award, and on March 21, 1895, the award was made a decree of Court, and finally determined the separate title of Gajadhar Bakhsh to the villages in suit. On September 18, 1902, Gajadhar Bakhsh sold the said three villages and two pattis to the respondent, and, in consequence, Ganesh Bakhsh sued on September 4, 1903, in the Court of the Subordinate Judge of Sitapur. The plaint alleged that the whole of the landed property in the possession of Uman Parshad con stituted one entire under-proprietary tenure and one mahal within the meaning of the Oudh Laws Act (XVIII. of 1876), that, notwithstanding the partition of 1893, he was a co-sharer with Gajadhar in the said tenure and mahal, and claimed a right to pre-empt the property sold. This respondent denied that the appellant had any right of preemption on the state of facts admitted and proved. The Subordinate Judge decided that the plaintiff was entitled to a decree for pre-emption in regard to the whole property in suit, on the ground that he was a co-sharer with the vendor in the same tenure and in the same mahal. He held that the property described as the " three entire villages " constituted, under the circumstances of the case, a mahal within the meaning of s. 4 of Act III. He held that the property described as the " three entire villages " constituted, under the circumstances of the case, a mahal within the meaning of s. 4 of Act III. of 1901, an Act to consolidate and amend the law relating to land revenue, in the North Western Provinces and Oudh. The plaintiff, therefore, being a co-sharer of the whole mahal and a nearer relation of the vendor, had a preferential right to purchase under s. 8 of Act XVIII. of 1876 (the Oudh Laws Act). The Subordinate Judge also held that in regard to the said two pattis, Kathwa and Himmatnagar, the pre-emptive right of the plaintiff was unassailable. In the Judicial Commissioners Court the following views were expressed. Mr. Wells, the Additional Judicial Commissioner, referred to the following Acts of the Legislature—Act XVII, of 1876, s. 100 (the Oudh Land Revenue Act, 1876) ; Act XVIII. of 1876, s. 7 ; N. W. P. and Oudh Land Revenue Act III. of 1901, ss. 4 and 138—and then observed " In the present case what seems to have been effected by the partition madeby Harihar Bakhsh was a sort of imperfect partition by which separate villages were assigned to Ganesh Bakhsh and Gajadhar, but both remained jointly responsible for the payment to the taluqdar. That payment was of the nature which is made in all, or at any rate most, under-proprietary mahals, that is to say, the Government revenue, plus a percentage. " It appears to me that the result of the compromise at settlement and the proceedings which followed it has clearly been to constitute an under-proprietary mahal in which Ganesh and Gajadhar are co-sharers, and in which under revenue law either has a right of pre-emption if the other sells to an outsider. " The principle of the right of pre-emption is that where there is any community, especially a community which is jointly liable for a payment to any one else whether of rent or revenue, there should be a right to exclude outsiders ; and the taluqdar is clearly an outsider as far as the under-proprietary community is concerned. I think, therefore, that the plaintiff has certainly a right of pre-emption as a co-sharer in an under-proprietary mahal." Mr. I think, therefore, that the plaintiff has certainly a right of pre-emption as a co-sharer in an under-proprietary mahal." Mr. Chamier, the Officiating Judicial Commissioner, concluded his judgment as follows " In my opinion the villages allotted to Uman Parshad did not constitute together one under-proprietary mahal, nor do I think that s. 100 of the Revenue Act of 1876 refers to such a mahal. It appears to me to refer Law. Rep. 37 Ind. App. 124 ( 1909- 1910) Thakurain Sheoraj Kunwar V. Thakur Harihar Bakhsh Singh 55 to inferior mahals, each of which has been separately assessed to revenue. I am also inclined to doubt whether the word mahal in s. 9 of the Oudh Laws Act was ever intended to refer to such a collection of inferior mahals as we have in the present case. The words the cases referred to in section 40 of the Oudh Land Revenue Acts in s. 7 of the Oudh Laws Act read with the section referred to seem to contemplate mahals properly so called, namely, areas separately assessed to revenue which would be dealt with separately by the Settlement Officer when fixing rents. Be that as it may, I hold that the villages now held by the plaintiff and the villages in suit are not parts of the same mahal. I would, therefore, allow the appeal and dismiss the suit as regards the three entire villages, and as regards the pattis I would call upon the parties to draw lots. The Court below found that Rs. 19,950.4.6 was the proportionate price of the two pattis, and as this has not been shewn to be erroneous I would fix the price of the pattis at that figure." Under s. 575, Civil Procedure Code, the appeal was referred in consequence of a difference on a point of law to Mr. Evans, a third judge of the Appellate Court, who agreed with Mr. Evans, a third judge of the Appellate Court, who agreed with Mr. Chamier and held that the appellant was not a co-sharer in the mahal in which the said villages were situated, and then concluded " As I find that Ganesh Bakhsh is not a co-sharer in the mahal in which the entire villages sold are situated, it follows that he cannot be a co-sharer in the tenure in which these villages are comprised, because the word tenure must be intended to mean a sub-division of such mahal, though no definition of the word tenure is given anywhere in the Act. The point for decision in this case is one of much difficulty as no similar case appears ever to have arisen. For reasons given above, I would allow the appeal with respect to the three entire villages, and, as regards the pattis, call upon the parties to draw lots, the proportionate price being fixed at Rs.19,950.4.6." Sir B. Finlay, K.C., and Boss, for the appellant, contended that he was entitled to pre-empt in respect of all the properties sold by the second to the first respondent. The Appellate Court had misconstrued the provisions of the Oudh Laws Act (XVIII. of 1876). They referred to c. 2, part 3, ss. 6, 7, S, and 9, and to the Oudh Land Revenue Act (XVII. of 1876), ss. 40, 68, 100, and 101, to Ganesh Bakhsh v. Harihar Bakhsh (( 1904) L. R. 31 Ind. Ap. 118.), and to Thomasons Directions to Revenue Officers (Calcutta ed., 1858), pp. 49, 50, and 51, paragraphs 82 to 89, and to N. W. P. and Oudh Land Revenue Act (III. of 1901), s. 4, sub-s. 4, and the definition of mahal contained in s. 4, sub-s. 4, and in s. 188. The appellant and second respondent were jointly liable as under-proprietors to the first respondent for the Government revenue and malikana. The estate possessed by them formed one mahal and their rights were joint. Their rights were also joint in the properties in suit. The appellant was therefore a co-sharer in the mahal within the meaning of the second clause of s. 9 of the Oudh Laws Act of 1876. The estate possessed by them formed one mahal and their rights were joint. Their rights were also joint in the properties in suit. The appellant was therefore a co-sharer in the mahal within the meaning of the second clause of s. 9 of the Oudh Laws Act of 1876. The partition relied upon was imperfect and did not complete the separate titles of the vendor and the appellant, who remained jointly responsible both for Government revenue and malikana, and therefore co-sharers within the meaning of the section. De Gruyther, K.C., and Kyffin, for the first respondent, contended that the Appellate Court was right in holding that the appellant was not a co-sharer in the mahal in which the villages in suit were situated, and also that he was not a co-sharer in the tenure in which the villages were comprised. The largest area over which the right of pre-emption could be exercised was a village see s. 7 of Act XVIII. of 1876 and s. 40 of Act XVII. of 1876. For a definition of mahal reference was made to the Government letter of February 4, 1856, Oudh Blue Books, paragraphs 14 and 26; Sykes Compendium, p. 14; Thomasons Directions to Revenue Officers, p. 1, ss. 3 and 5 ; p. 22, s. 2; p. 35, ss. 47 and 50; p. 285, s. 161, and pp. 236, 238, and 445; Act XVII. of 1876, ss. 16, 68, 101, and 132. As regards the pattis the appellant had acquiesced in the drawing of lots and could not now reopen the question of his pre-emptive right. Ross in reply. Law. Rep. 37 Ind. App. 124 ( 1909- 1910) Thakurain Sheoraj Kunwar V. Thakur Harihar Bakhsh Singh 56 The judgment of their Lordships was delivered by LORD MACNAGHTEN. This appeal is concerned with a claim to pre-emption under the Oudh Laws Act, 1876, in respect of three entire villages and two pattis or portions of two other villages forming part of a taluqa called Saraura. By s. 9 of the Act the right of pre-emption where it exists is given on the occasion of a sale— "1st, to co-sharers of the sub-division (if any) of the tenure in which the property is comprised in order of their relationship to the vendor . . . . By s. 9 of the Act the right of pre-emption where it exists is given on the occasion of a sale— "1st, to co-sharers of the sub-division (if any) of the tenure in which the property is comprised in order of their relationship to the vendor . . . . ; " 2ndly, to co-sharers of the whole mahal in the same order ; " 3rdly, to any member of the village community ; and " 4thly, if the property be under-proprietary tenure, to the proprietor"; and the section adds this provision " where two or more persons are equally entitled to such right the person to exercise the same shall be determined by lot." There were three brothers, sons of one Basti Singh, whose names were Baldeo Bakhsh, Balwant Singh, and Uman Parshad. Baldeo Bakhsh died leaving one son, Bisheshar Bakhsh; Balwant died leaving two sons, Sitla Bakhsh, who died childless, and Ganga Bakhsh. Ganga Bakhsh had obtained a sanad of taluqa Saraura, but in 1864 on the occasion of the regular settlement a compromise was made between Ganga Bakhsh, Bisheshar Bakhsh, and Uman Parshad, by which one-half of the taluqa was assigned to Ganga Bakhsh as superior proprietor and the other half to Bisheshar Bakhsh and Uman Parshad in equal shares in under-proprietary right, they paying the Government revenue plus malikana at the rate of 10 per cent, to the taluqdar, and being jointly liable to him in respect of the same as rent. Bisheshar Bakhsh died childless and his share devolved on Uman Parshad. Uman Parshad died, and his property devolved upon Gajadhar, his grandson, and Ganesh Bakhsh, his son. In 1893 a partition was made between Gajadhar and Ganesh Bakhsh under which the property in question in this suit was assigned to Gajadhar. A decree was made in accordance with the partition, and mutation of names was effected accordingly, but no separate engagement was made for payment of the Government revenue in respect of the three entire villages or the two pattis assigned to Gajadhar. On September 13, 1902, Gajadhar sold the property in question to Harihar Bakhsh, who had succeeded his father Ganga Bakhsh as taluqdar of Saraura. Thereupon Ganesh Bakhsh filed this suit against Harihar, who is respondent No. 1, and Gajadhar, who is dead, and is now represented by his widow, respondent No. 2. On September 13, 1902, Gajadhar sold the property in question to Harihar Bakhsh, who had succeeded his father Ganga Bakhsh as taluqdar of Saraura. Thereupon Ganesh Bakhsh filed this suit against Harihar, who is respondent No. 1, and Gajadhar, who is dead, and is now represented by his widow, respondent No. 2. The claim was for pre-emption in respect of the three villages and the two pattis. The Subordinate Judge of Sitapur decided in favour of the plaintiff, Ganesh Bakhsh. From that decision Harihar appealed to the Court of the Judicial Commissioner. The appeal was heard in the first instance by Mr. Wells, Additional Judicial Commissioner, and Mr. Chamier, Officiating Judicial Commissioner. The learned judges differed in opinion. And so the appeal was referred to Mr. Evans, First Additional Judicial Commissioner. Mr. Evans agreed with Mr. Chamier in thinking that the suit ought to be dismissed as regards the three entire villages, and that as regards the two pattis Ganesh Bakhsh and Harihar, as the only other members of the village communities to which the pattis respectively Law. Rep. 37 Ind. App. 124 ( 1909- 1910) Thakurain Sheoraj Kunwar V. Thakur Harihar Bakhsh Singh 57 appertained, were equally entitled to the right of pre-emption. The order was that the appeal be allowed and the suit dismissed with costs in both Courts as regards the three entire villages; and the parties were ordered to draw lots as regards the two pattis. This order was dated August 10, 1906. A further order was made on the same day declaring that, lots having been drawn, the right to buy the two pattis was found to lie with the appellant Harihar. The appeal was therefore allowed as regards the pattis, and the suit was dismissed as regards them also, and the parties were ordered to pay their own costs as regards the pattis in the Court of Appeal and below. Their Lordships are of opinion that the judgment of the Court of the Judicial Commissioner was right. The opinion delivered by Mr. Chamier, with which Mr. Evans was in substantial agreement, deals with the case very fully. It was contended, he said, that Ganesh Bakhsh was entitled to pre-empt under the first or, failing that, the second clause of the section. The opinion delivered by Mr. Chamier, with which Mr. Evans was in substantial agreement, deals with the case very fully. It was contended, he said, that Ganesh Bakhsh was entitled to pre-empt under the first or, failing that, the second clause of the section. The learned judge pointed out that even if (as was suggested) each of the villages assigned to Uman Parshad were a sub-division of the tenure in which the property is comprised it could not be said that Ganesh and Gajadhar were the co-sharers in any sub-division. The question whether Ganesh could claim to pre-empt under the second clause was one, he thought, of greater difficulty. The word "mahal," he observes, is not defined in the Act, but he goes on to say " The word is a term of the Revenue Law, and as the Oudh Laws Act, 1876, and the Oudh Land Revenue Act were passed on the same day and refer to each other it is permissible to refer to the latter Act .... in order to ascertain the meaning of the word mahal in the Oudh Laws Act." Then he refers to the case of Munna Lal v. Maulvi Sayed Muhammed Ismail (L. R. 31 Ind. Ap. 212.) and proceeds as follows " Chapter V. of the Revenue Act of 1876 shews that the word ‘mahal’ means any parcel or parcels of land which have been separately assessed to or are held under a separate engagement for the revenue and for which a separate record of rights has been prepared, and this is the sense in which the word has been used by revenue and judicial officers since the first regular settlement of the province. See Thomasons Directions to Revenue Officers, which was the guide book of officers engaged in that settlement .... Each mauza or village is as a general rule a separate mahal, but a mahal may consist of two or more mauzas or parts of mauzas, or only a portion of one mauza. It is clear that the villages assigned to Uman Parshad did not form a separate mahal in the ordinary sense. Each mauza or village is as a general rule a separate mahal, but a mahal may consist of two or more mauzas or parts of mauzas, or only a portion of one mauza. It is clear that the villages assigned to Uman Parshad did not form a separate mahal in the ordinary sense. The kabuliat of the taluqa in which they are included, a copy of which is on the record, shews that each village in the taluqa was separately assessed to revenue, and that the taluqdar entered into one engagement for the payment of the revenue on all the villages. The whole taluqa is, therefore, what is called in the Act a taluqdari mahal, consisting of a large number of villages each of which is separately assessed to revenue and may be regarded as an inferior mahal (see s. 100a of the Revenue Act of 1876). The plaintiff is certainly not a co-sharer in the taluqdari mahal, for the taluqdar has no co-sharer. Nor, as I have already pointed out, is the plaintiff a co-sharer in any of the inferior mahals just referred to of which the taluqa is made up." Their Lordships think, that the meaning which Mr. Chamier has attributed to the term "mahal " is the proper meaning of the word in the Oudh Laws Act, 1876, and that although Gajadhar and Ganesh may have been jointly liable to the taluqdar for the Government revenue plus malikana, as the rent of the villages and pattis assigned to Bisheshar and Uman under the compromise of 1864, Gajadhar and Ganesh were not at the date of the sale to Harihar co-sharers in any sub-division of the tenure in which the property in question was comprised or in the whole mahal. Their Lordships will therefore humbly advise His Majesty that this appeal ought to be dismissed. The appellant will pay the costs of the appeal.