Judgement Appeal from a decree of the High Court (January 81, 1908) affirming a decree of the Subordinate Judge of Mozufferpur (September 17, 1906). The first respondent, widow of the late Maharajah of Bettiah, and represented by the manager of the Bettiah estate under the Court of Wards, sued to establish her right of pre-emption in respect of certain property situated in the Champaran district in Behar. The first sixteen respondents were the co-sharers in that estate. The second respondent was the vendor of the property in dispute, and the remaining defendants other than the respondents were or represented the purchasers thereof. The property in dispute was the share of the second respondent (first defendant) Barkatunnissa Begam in mahal Motihari, which she had sold by a deed dated July 28, 1904. The plaint alleged that Rs. 26,000 was the actual price paid, and prayed for a declaration that the first respondent had a right of pre-emption in respect of the property which passed by the deed and for an order that the purchasers should convey to her the property bought by them on her paying the actual consideration paid by them. The appellants, the purchasing defendants, pleaded so far as now material (1.) that the plaintiff had no cause of action ; (2.) that the talab-i-mowasibat and talab ishhad had not been duly made, and therefore that the suit was not maintainable; (3.) that their deed of sale was executed long after the plaintiffs manager had information of the negotiations and nevertheless had refused to buy at an adequate price. On the application of the appellants the preliminary question as to the cause of action was first decided by the Subordinate Judge. On the application of the appellants the preliminary question as to the cause of action was first decided by the Subordinate Judge. He decided on July 14, 1906, in favour of the plaintiff with this observation " The learned counsel for the plaintiff admits that under the Pull Bench ruling of the Calcutta High Court as reported in 13 W. R., p. 21, the plaintiff cannot claim right of pre-emption under the Mahomedan law as all the parties in the transaction, namely, the pre-emptor, the vendee and the vendor, are not Mahomedans, but she claims the right as the law of pre-emption has been decided in several decisions of the Calcutta High Court to be the territorial law in Behar." He held that the plaint disclosed a good cause of action and that no question as to the existence of the special law or custom relied on need be tried. On September 17, 1906, the Subordinate Judge gave his decision on the merits. He held that Mr. Lowis as the manager of the estate under the Court of Wards had the power to purchase the land in question for the improvement of the plaintiffs estate (though it would be necessary that the sanction of the Court of Wards to the purchase should be obtained after a decree for the plaintiff should have been passed), and also that he had the power to perform the two ceremonies referred to above and had duly performed them—the first on August 13 at Bettiah and the second on August 15 at the kacheri of the plaintiffs estate. He also found that Mr. Lowis first heard on July 27 that the share of the first defendant was in the market and on August 13 that it had been sold to defendant No. 2, and that the right of pre-emption had not been lost. He decreed for pre-emption in the usual form. The High Court in appeal held that the rules of the Mahomedan law of pre-emption were in force among Hindus in the district of Champaran by virtue of a custom, and they further held that the plaintiff and the vendor were co-sharers in the whole mahal within the meaning of those rules. He decreed for pre-emption in the usual form. The High Court in appeal held that the rules of the Mahomedan law of pre-emption were in force among Hindus in the district of Champaran by virtue of a custom, and they further held that the plaintiff and the vendor were co-sharers in the whole mahal within the meaning of those rules. With regard to the latter point the fact that the plaintiff had shares in sixteen only of the twenty-four villages in question was referred to, but it was regarded as immaterial for the reason that although in the assessment of the whole mahal the revenue derivable from each village is separately stated, " the mahal forms a single estate in the collectorate rent roll and the whole mahal is liable to sale for arrears due from any of the proprietors." Certain proceedings under the Bengal Estates Partition Act (V. of 1897) were also held to be immaterial because they had not advanced far enough to alter the liability of the various proprietors in respect to the Government revenue. On these grounds the High Court affirmed the plaintiffs right of pre-emption as claimed. Upon the question whether the manager of the Court of Wards was empowered to perform the above-mentioned ceremonies Brett J. said " Undoubtedly under his ordinary powers as agent under the law, the manager would have power to claim the right of pre-emption on behalf of his principal, and I do not think that the provisions of the Court of Wards Act, 1879, could be held to operate to deprive him of that power. Whether as guardian acting for the ward, or as manager acting under the Court of Wards Act, or as agent of the lady, the manager Mr. Lowis had, in my opinion, authority to assert on behalf of the plaintiff her right of pre-emption. As a guardian on her behalf under the provisions of the Mahomedan law, Mr. Lowis had not only authority but it was his duty to assert the claim if in his opinion it was for the benefit of the plaintiff. That the assertion of the right was for her benefit has not been contested and admits of no doubt." Kenworthy Brown, for the appellants, contended that the respondent had no right of pre-emption by reason of any custom or territorial law obtaining among Hindus in Champaran. That the assertion of the right was for her benefit has not been contested and admits of no doubt." Kenworthy Brown, for the appellants, contended that the respondent had no right of pre-emption by reason of any custom or territorial law obtaining among Hindus in Champaran. The law of pre-emption had not been adopted as the territorial law of Behar and had not been shewn to be applicable by custom to that part of Behar in which the property in dispute was situated. The High Court had erred in taking judicial notice of the custom as alleged by the respondent, and the evidence had not established its existence or that such custom if any was valid and legally enforceable. Reference was made to Sir R. Wilsons Digest of Mahomedan Law, 3rd ed., pp. 376, 378; Fakir Rawot v. Sheikh Emambaksh (( 1863) Beng. L. R., Full Bench Killings, 35, 47.); Kantiram v. Woli Sahu. (( 1869) 2 Beng. L. R. A. C. 330; 11 Suth. W. R. 251.) Further, the respondent was not entitled to exercise the right of preemption if she possessed it, having regard to the circumstances. Assuming that vendor and purchaser had been co-sharers in the property in suit, they ceased to be so by reason of proceedings taken for partition under Act V. of 1897, and in consequence the right of pre-emption was destroyed. The object of preemption is to keep the joint property together, and if a partition has been made or is proceeding the rule as to pre-emption ceases to be applicable. Further, the coparcenary itself, which is the foundation of the claim, is not established by the evidence, for the utmost that was proved was a joint liability of the vendor and pre-emptor for the Government revenue, and that was insufficient to prove coparcenary see Sped Wajid Alt Khan v. Hanuman Prasad (( 1869) 4 Beng. L. R. A. C. 139; 12 Suth. W. R. 484.) Joobraj Singh v. Tookun Singh. (( 1870) 14 Suth. L. R. A. C. 139; 12 Suth. W. R. 484.) Joobraj Singh v. Tookun Singh. (( 1870) 14 Suth. W. R. 476.) Again, with regard to the performance of the ceremonies which are a condition precedent to the exercise of a right to pre-empt there had been delay sufficient to invalidate them, and the first ceremony of demand was not made by the respondent personally, but by the manager of the Court of Wads, who had no authority to do so or to perform either of the ceremonies of talab-i-mowasibat or talab ishhad. As to the powers of a manager of an estate see Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (Ante, p. 1.); Court of Wards Bengal Act IX. of 1879, ss. 14, 18, 39—41, 48, 49, and 50; Wilsons Digest, p. 391; Nundo Pershad Thakur v. Gopal Thakur. (( 1884) I. L. R. 10 Calc. 1008, 1012.) No ratification by the respondent was of any avail, for the agent had no power to act see Dibbins v. Dibbins ([ 1896] 2 Ch. 348.); Bird v. Brown (( 1860) L. R. 4 Ex. 786, 798.); Lyell v. Kennedy (( 1889) 14 App. Cas. 437.); Indian Contract Code, s. 200, Cunningham and Shepherds edition, p. 438; Bolton Partners v. Lambert (( 1889) 41 Ch. D. 295, 307.), said in Fry on Specific Performance, 5th ed., p. 781, to be of doubtful authority, but followed in In re Portuguese Copper Mines, Ld., Ex parte Badman. (( 1890) 45 Ch. D. 16.) De Gruyther, K.C., and Eddis, for the first respondent, were heard only on the point as to coparcenary between persons jointly liable to the Government revenue. Such joint liability arises by reason of the parties owning undivided interests in the property ; and that liability continues so long as the property in respect of which revenue is payable remains an undivided unit. After partition each share is a separate unit, and then the joint liability has ceased and the coparcenary is at an end. Reference was made to Wilsons Digest of Mahomedan Law, p. 396, ss. 377 and 378; Hamiltons Hedaya, p. 548, bk. 38, c. 1, Right of Shaffa [sic]. All the holders of lands within the boundaries of a mahal are co-sharers; and consequently both the plaintiff and the first defendant were co-sharers in the whole of mahal Motihari see the report of this case in the High Court. 377 and 378; Hamiltons Hedaya, p. 548, bk. 38, c. 1, Right of Shaffa [sic]. All the holders of lands within the boundaries of a mahal are co-sharers; and consequently both the plaintiff and the first defendant were co-sharers in the whole of mahal Motihari see the report of this case in the High Court. (( 1908)1. L. R. 35 Calc. 575, 586.) To extinguish the right of pre-emption it was necessary that the respective shares should be formally defined see Syed Wajid Ali Khan v. Hanuman Prasad(4 Beng. L. R. A. C. 139; 12 Suth. W. R/484.); Mahadeo Singh v. Ziatannissa (( 1869) 7 Beng. L. R. 45, note; 11 Suth. W. R. 169.) ; Joobraj Singh v. Tookun Singh (14 Suth. W. R. 476.); Munna Lal v. Hajira Jan. (( 1910) I. L. R. 33 Allah. 28.) [Mr. Ameer Ali referred to Mahomed Hossein v. Mohsin Ali. (( 1870) 6 Beng. L. R. 41.)] Kenworthy Brown in reply. The judgment of their Lordships was delivered by MR. AMEER ALI. The suit out of which this appeal arises was brought by the plaintiff-respondent to establish her right of pre-emption in respect of certain undivided shares in a number of villages comprised in mahal Motihari, situated in the district of Champaran. The shares in question belonged to a Mahomedan lady named Barkatunnissa, the first defendant to this action, who sold the same to the Sahu defendants by a deed of sale dated July 28, 1904. Barkatunnissa owned an interest in twenty-four out of the thirty-one villages comprised in the mahal, whilst the plaintiff possesses shares in eighteen. The purchasers had admittedly no proprietary interest in mahal Motihari prior to their purchase from Barkatunnissa. The plaintiff claims that as a co-sharer in the mahal she is entitled to the right of pre-emption in respect of the shares sold to the Sahus by the first defendant. Champaran appears to have been part of the civil division of Saran until some time after the institution of the suit. The action was accordingly brought in the Court of the Subordinate Judge of Saran, but owing to the subsequent amalgamation of Champaran with Tirhoot, it was tried before the Subordinate Judge of Mozufferpur (the Suddar station of Tirhoot), who decreed the plaintiffs claim. This decree has been affirmed by the High Court of Bengal. The action was accordingly brought in the Court of the Subordinate Judge of Saran, but owing to the subsequent amalgamation of Champaran with Tirhoot, it was tried before the Subordinate Judge of Mozufferpur (the Suddar station of Tirhoot), who decreed the plaintiffs claim. This decree has been affirmed by the High Court of Bengal. It has been urged on behalf of the appellants that as the right claimed is a creation of the Mussulman law, and it is not proved that the Mussulman law of pre-emption is in force among the Hindus of the district of Champaran, both the pre-emptor and the vendees being Hindus, the action must fail. The suit was instituted on March 7, 1905, the Sahu defendants filed their defence on June 16, and issues for trial were settled on September 27, 1905. It was not, however, until July 11, 1906, when, as the learned judges of the High Court observe, "the suit was ripe for hearing," that the Sahu defendants for the first time raised a question as to the existence of the right of pre-emption among the Hindus of Champaran. Both the Courts in India have, in their Lordships judgment rightly, overruled the defendants objection. The law of pre-emption, under which the plaintiff claims the right, was introduced into India with the Mahomedan government. The province of Behar, to which the district of Champaran appertains, was an integral part of the Mahomedan Empire, and consequently it would not be surprising to find that in Behar the right of pre-emption is enforceable irrespective of the persuasion of the parties concerned. In the case of Fakir Rawot v. Sheikh Emambaksh (1) a Full Bench of the High Court of Bengal gave judicial recognition to the existence of the right of pre-emption among the Hindus of Behar. In delivering the judgment the Chief Justice (Sir Barnes Peacock) reviewed the earlier cases bearing on the subject, and held that " .... In the case of Fakir Rawot v. Sheikh Emambaksh (1) a Full Bench of the High Court of Bengal gave judicial recognition to the existence of the right of pre-emption among the Hindus of Behar. In delivering the judgment the Chief Justice (Sir Barnes Peacock) reviewed the earlier cases bearing on the subject, and held that " .... a right or custom of pre-emption is recognized as prevailing among Hindus in Behar, and some other provinces of Western India ; that in districts where its existence has not been judicially noticed, the custom will be matter to be proved; that such custom when it exists, must be presumed to be founded on and coextensive with the Mahomedan law upon that subject, unless the contrary be shewn ; that the Court may, as between Hindus, administer a modification of that law as to the circumstances under which the right may be claimed, when it is shewn that the custom in that respect does not go the whole length of the Mahomedan law of pre-emption, but that the assertion of the right by suit must always be preceded by an observance of the preliminary forms prescribed in the Mahomedan law, which forms appear to have been invariably observed and insisted on through the whole of the cases from the earliest times of which we have record." In their Lordships judgment the decision in Fakir Rawots Case (Beng. L. R, Full Bench Rulings, p. 35.) is conclusive on the point raised on behalf of the defendants. Their abstention from taking the objection in a definite and distinct form at the earliest stage of the case was, it may fairly be presumed, due to the explicit enunciation of the law in the ruling referred to. It has also been contended that the formalities insisted upon by the Mussulman law as essential preliminaries to the assertion of the right could not be performed by the manager of the plaintiffs estate appointed by the Court of Wards. It appears that the plaintiff is a "disqualified proprietor" under the Court of Wards Act (Bengal Act IX. of 1879), having been declared to be incompetent to manage her property, and her estate is in the charge of the Court of Wards. Sect. It appears that the plaintiff is a "disqualified proprietor" under the Court of Wards Act (Bengal Act IX. of 1879), having been declared to be incompetent to manage her property, and her estate is in the charge of the Court of Wards. Sect. 40 of the Act, which defines the general duty of managers appointed by the Court of Wards, provides that he " shall manage the property committed to him diligently and faithfully for the benefit of the proprietor, and shall in every respect act to the best of his judgment for the wards interest as if the property were his own." The Mussulman law insists that the first formality technically called "the immediate demand" should be observed by the pre-emptor or some one on his behalf immediately on receipt of the news of the sale, otherwise the right of pre-emption falls to the ground. The second formality consists in the repetition of the " demand "with as little delay as possible under the circumstances, in the presence of witnesses either before the vendor or the vendee or on the premises. The Courts in India have found that the ceremonies were duly performed by the manager in accordance with the prescriptions of the law. Had he failed in performing either of the ceremonies, he would have caused irreparable loss to the plaintiff, as her right would have been absolutely defeated by his laches. In their Lordships opinion Mr. Lowis, as manager of the plaintiffs estate, was competent, independently of the provisions of s. 40 of the Court of Wards Act, to observe the formalities on her behalf. The section, however, which defines his duties appears to their Lordships to fully clothe him with authority to act as he did ; the validity of his action, therefore, did not depend on its subsequent adoption by the Court of Wards. In this view the English cases cited at the Bar have no application to the present case. It was also urged that the claim to coparcenary, on which the plaintiffs right of pre-emption was based, arose out of the fact that the vendor and pre-emptor were jointly liable for the pay ment of the Government revenue assessed on the villages comprised in the mahal, and that this joint liability does not constitute the coparcenary contemplated by the Mahomedan law. This argument seems to proceed on a misconception of the land system of India. A mahal is a unit of property ; it may consist of one village or of several villages it may be owned by one or several proprietors who may have an interest in all or some of the villages comprised* in the estate. Their joint liability for the Government revenue arises from the fact that they own undivided interests in the property; and that joint liability does not cease in the case of any co-sharer until his particular share has been partitioned by the revenue authorities, when the share so partitioned becomes a separate unit of property. On the whole their Lordships are of opinion that the decree of the High Court should be affirmed, and this appeal dismissed with costs, and they will humbly advise His Majesty accordingly.