JUDGMENT : BANERJI, J. 1. This appeal arises out of a suit for preemption brought in respect of a sale of the 14th of November, 1908. The claim is based upon custom as recorded in certain wajib-ul-arzes. It appears that the plaintiff is the own brother of the vendor. The village has been partitioned and formed into different mahals. The mahal in which the property sold is situate belonged solely to the vendor. The plaintiff is a co-sharer in a different mahal and so are the vendees, appellants, The question is, whether the plaintiff has a right of pre-emption in respect of the property in question. 2. He relies on the wajib-ul-arz of 1873 as giving him a preferential right of pre-emption. This wajib-ul-arz was prepared before the partition, to which I have referred above. Paragraph 2 of the wajib-ul-arz is headed “Rights of co-sharers inter se, based upon custom or a special contract,” and paragraph 11 which refers to pre-emption provides that if a share-holder wishes to transfer he shall do so to his own brother, then to near relations, if they refused, then to co-sharers of the patti and after them to co-sharers in the village. Assuming that this wajib-ul-arz records a custom, I am of opinion that having regard to the terms of it the plaintiff has no right of pre-emption, as he has ceased to be a co-sharer of the vendor after the partition to which I have referred. As I have pointed out above, the chapter in the wajib-ul-arz relied upon relates to the rights of the co-sharers inter se. From that it follows that the provisions as to pre-emption is a provision which applies to co-sharers inter i.e. 3. The first category of pre-emptors must therefore be persons who not only fulfil the condition of being the own brothers of the vendor but must also be co-sharers of the vendor. This the plaintiff is not, and therefore in my opinion, he has no right of pre-emption and his claim ought to have been dismissed. On this ground I would allow the appeal and dismiss the plaintiff's suit. STANLEY, J. I agree in the order proposed by my learned colleague, but I am content to rest my decision upon the interpretation of the language in the wajib-ul-arz of 1863 and the wajib-ul-arz of 1873. On this ground I would allow the appeal and dismiss the plaintiff's suit. STANLEY, J. I agree in the order proposed by my learned colleague, but I am content to rest my decision upon the interpretation of the language in the wajib-ul-arz of 1863 and the wajib-ul-arz of 1873. In the wajib-ul-arz of 1863, the right of pre-emption, whether it arose by contract or by custom is given to three categories of persons: First, to the own brothers of the vendor, or nephews having a common ancestor second, to co-sharers in the patti and third, to co-sharers in another patti. It will be observed that in the first class of pre-emptors come Own brothers or nephews having one common ancestor. This is the first class of pre-emptors, and a brother had no priority in the matter of pre-emption over a nephew. They both stand on an equal footing. If we turn to the wajib-ul-arz of 1873, different categories of pre-emptors are mentioned. The first class consists of own brothers; the second class near relations; the third class co-sharers of the patti and the fourth class co-sharers in the village. This is not the same usage as is recorded in the wajib-ul-arz of 1863. Consequently, as a custom must be constant and invariable in my opinion, the wajib-ul-arz of 1873 does not record a custom. If the record is the record of a contract, as I hold that it is, the period of the settlement having expired, no right of pre-emption now exists. 4. I therefore concur in the proposed order. 5. BY THE COURT The order of the Court is that the appeal be allowed, the decree of the court below is set aside, and the plaintiff's suit is dismissed with costs in both courts.