Judgement Appeal from a judgment and decree of the High Court (July 15, 1912) reversing a judgment and decree of the Subordinate Judge of Aligarh (March 28, 1911). The suit was instituted by the appellant in 1910 against the respondent and on© Bhawani Das, claiming a right of pre-emption over certain land which had been sold by Bhawani Das to the respondent. Bhawani Das did not defend the suit and was not a party to the appeal. The property in suit formed part of a mauza known as Pala Kher in which both the appellant and Bhawani Das were sharers at the date of the. suit. By his plaint the appellant alleged that the usage of pre-emption existed in the mauza, and that the right thereto was recorded in a wajib-ul-arz in 1863 and again in 1870. It appeared that in 1906 the mauza, which up to that date had been jointly assessed as one mahal, was parti- tioned into five separate mahals and that the shares allotted to the appellant and to Bhawani Das respectively fell into different mahals. By a registered sale deed dated July 22, 1909, Bhawani Das sold the property in suit to the respondent, who had been in possession of it as mortgagee since 1892. The terms of the wajib-ul-araiz of 1863 and of 1870 appear from the judgments of their Lordships. No new wajib-ul-arz was prepared at the partition. The respondent pleaded that since the partition in 1906 no coparcenary interest existed between the appellant and Bhawani Das. He denied the alleged custom of pre-emption and pleaded that, in any case, it only applied so long as the village remained a single mahal. He further pleaded that he was a co-sharer with the vendor by reason of his possession as mortgagee. The Subordinate Judge made a decree in favour of the plain tiff (appellant). He held that the wajib-ul-arz established that there was a custom of pre-emption in the village, that the appellant was entitled thereunder to purchase the property in preference to the respondent, and that this right was not affected by the partition into separate mahals. The High Court (Sir Henry Richards C.J. and Tudball J.), by a judgment delivered on July 15, 1912, allowed the appeal. In the course of his judgment the learned Chief Justice said " The plaintiff was not a co-sharer in any property with the vendor. The High Court (Sir Henry Richards C.J. and Tudball J.), by a judgment delivered on July 15, 1912, allowed the appeal. In the course of his judgment the learned Chief Justice said " The plaintiff was not a co-sharer in any property with the vendor. No joint and several responsibility existed between the plaintiff and the vendor for the payment of Government revenue. The plaintiff had no right to interfere in any way with the management of any part of the property sold; he was a total stranger in the sense that he did not belong to the coparcenary body which held mahal Bhawani Das..... The result of perfect partition is that the old coparcenary body ceases to exist and new coparcenary bodies in each mahal are created. If the reason for customs of pre-emption is to avoid the introduction of a stranger, the custom which the plaintiff alleges would defeat the object." The learned Chief Justice was also of opinion that the wajib-ul-arz did not record an existing custom, but merely an arrangement for the future between the members of the coparcenary body. Tudball J. agreed with the learned Chief Justice. He further held that if the wajib-ul-arz had any force as evidence of custom the vendee, being a mortgagee with possession in the same mahal as the vendor, would be entitled thereunder to purchase even against the plaintiff. Lowndes, for the appellant. The wajib-ul-araiz record a custom, not merely an agreement. Under Bengal Regulation VII. of 1822, s. 9, it was local usages which had to be recorded Circulars to Board of Revenue Officers, 1868 and 1870; Returaji Dubain v. Pahlwan Bhagat. (( 1910) I. L. R. 33 Allah. 196, at p. 217.) The signatures to the wajib-ul-arz of 1863 show that the village at that time was a purely Mahomedan village; this raises a presumption in favour of the custom, since among Mahomedans a right of pre-emption exists apart from any special custom Ameer Alis Mahomedan Law, vol. i., pp. 718, 720. The partition in 1906 did not determine the right of pre-emption among the sharers in the village. The partition was not a " perfect partition," since no new wajib-ul-arz was prepared Act XIX. of 1873, ss. 8 and 107. i., pp. 718, 720. The partition in 1906 did not determine the right of pre-emption among the sharers in the village. The partition was not a " perfect partition," since no new wajib-ul-arz was prepared Act XIX. of 1873, ss. 8 and 107. Any co-sharer can obtain a partition, and it cannot be that the act of an individual sharer puts an end to the right among the body of co-sharers. The question of the effect of a partition upon an existing custom of pre-emption has been the subject of numerous decisions in the High Court of Allahabad. In the earlier decisions, e.g., Gokal Singh v. Mannu Lal (( 1885) I. L. R. 7 Allah. 772.), the view taken was that partition had no effect upon the right of pre-emption. Somewhat later the view was that a partition destroyed the custom Ghure v. Man Singh. (( 1895) I. L. R. 17 Allah. 226.) In 1899 the question was considered by the Full Bench in Dalganjan Singh v. Kalka Singh (I. L. R. 22 Allah. 1.), and the rule was Laid down that each case depends upon its particular facts and must be separately considered. Since the above decision the question has again risen in Janki v. Ram Partab Singh (( 1905) I. L. R. 28 Allah. 286.), Sardar Singh v. Izaz Husain Khan (( 1906) I. L. R. 28 Allah. 614.), Gobind Ram v. Masih-ullah Khan (( 1907) I. L. R. 29 Allah. 295.), Dori v. Jewan Ram (( 1910) I. L. R. 32 Allah. 265.), and Chephur v. Abdul Hakim. (( 1910) I. L. R. 33 Allah. 296.) The test which is to be collected from these authorities is whether or not conditions have arisen which make the custom inapplicable. In the present case the custom as recorded in the wajib-ul-araiz is applicable to the present circumstances, since it expressly gives the right to " the proprietors of the village." / [Reference was made to Regulation VII. of 1822, s. 12, and to Wilsons Glossary, as to the meaning of " bhaiyachara " and "pattidar."] The view that the right of pre-emption is based upon a joint liability for revenue is erroneous ; the object of the right is to keep strangers out of the village. De Gruyther, K.C., and Dube, for the respondent. The decisions in Ram Prasad v. Abdul Karim (( 1887) I. L. R. 9 Allah. De Gruyther, K.C., and Dube, for the respondent. The decisions in Ram Prasad v. Abdul Karim (( 1887) I. L. R. 9 Allah. 513.) and Jagdam Sahai v. Mahabir Prasad (( 1905) I. L. R. 28 Allah. 60.) establish that where a custom of pre emption exists the persons who are entitled to exercise it must be ascertained by reference to Mahomedan law unless that law is modified by the special custom proved. In matters of preemption Hindu law has adopted Mahomedan law as part of its system Jadu Lal Sahu v. Maharani Janki Koer.(( 1912) L. R. 39 Ind. Ap. 101.) The right under Mahomedan law depends upon the pre-emptor being a co-sharer in the land Hamiltons Hedaya, bk. 38, ch. 1 (Gradys edition, 1870, p. 548). The phrase " partner in the property " in that passage is rendered as li co-sharer by all the commentators. It is this element of co-partnership, involving a joint and several liability for the revenue, upon which the right of pre-emption depends. When it ceases, either owing to a partition by Government or to a division by the sharers, the right ceases to exist Ganga Singh v. Chedi Lal (( 1911) I. L. R. 33 Allah. 605.) ; Digumber Misser v. Ram Lal Roy (( 1887) I. L. R. 14 Calc. 761.); Gopal Said v. Ojoodheapershad (( 1860) 2 Suth. W. R. 47.) ; Joobray Singh v. Jookun Singh. (( 1871) 14 Suth. W. R. 476.) In the present case no custom varying the Mahomedan law was proved, and the partition put an end to the right. The principle of the Full Bench case of Dalganjan Singh v. Kalka Singh (I. L. R. 22 Allah. 1.) applies ; the terms of the waiib-ul-arz in the present case make this an a fortiori case. Further, the view of the High Court that it was not an existing custom which was recorded, but an agreement between the sharers which came to an end upon the partition, was correct. The contents of a wajib-ul-arz must be received with caution as evidence to etablish a custom Anant Singh v. Durga Singh. (( 1910) L. R. 37 Ind. Ap. 191, at p. 197.) [The following were also referred to Badri Prasad v. Hashmal Ali(( 1901) 1 Allah. L. J .33.) Mathra Prasad v. Nemchand (( 1905) 2 Allah. The contents of a wajib-ul-arz must be received with caution as evidence to etablish a custom Anant Singh v. Durga Singh. (( 1910) L. R. 37 Ind. Ap. 191, at p. 197.) [The following were also referred to Badri Prasad v. Hashmal Ali(( 1901) 1 Allah. L. J .33.) Mathra Prasad v. Nemchand (( 1905) 2 Allah. L. J. 28.) ; Thomasons Directions for Revenue Officers, 1858, pp. 1, 10, 50, 53 et seq., 237, and 249.] Lowndes in reply. The argument based upon Mahomedan law was not advanced in any of the reported cases. In the passage cited from the Hedaya the first two classes of preemptors referred to are co-sharers, but in the third class it is assumed that a partition has taken place. The judgment of their Lordships was delivered by SIR JOHN EDGE. The suit in which this appeal has arisen was brought on August 6, 1910, in the Court of the Subordinate Judge of Aligarh by Digambar Singh, who is the appellant here, against Ahmad Said Khan, who is the respondent to this appeal, and one Bhawani Das, to enforce a right of pre-emption to which Digambar Singh claimed to be entitled, under a custom which he alleged to be prevailing in mauza Pala Kher in the district of Bulandshahr. The respondent here, Ahmad Said Khan, who was the vendee of the property in dispute, by his written statement denied that there was any custom of pre-emption in mauza Pala Kher and alleged that " Mauza Pala Kher was divided by perfect partition and entirely separate mahals were formed .... After the said partition no connection of any kind was left among the co-sharers of the different mahals, nor did any joint right, based on the terms of any wajib-ul-arz, subsist among them." The date of the sale in respect of which pre-emption is claimed was July 12, 1909. In 1905 mauza Pala Kher was, on the applications of certain of the then sharers in the mauza, partitioned into five mahals, of which two were named respectively Salig Ram and. Bhawani Das. On the partition each of the five newly formed mahals became separately responsible for the revenue assessed upon it, but did not become responsible for the revenue assessed upon any other of the five mahals. No separate record of rights was before this suit framed for any of the five new mahals. Bhawani Das. On the partition each of the five newly formed mahals became separately responsible for the revenue assessed upon it, but did not become responsible for the revenue assessed upon any other of the five mahals. No separate record of rights was before this suit framed for any of the five new mahals. The property sought to be pre-empted is in mahal Bhawani Das, in which mahal the appellant had not a share at the date of the sale; he was, however, at that date a sharer in mahal Salig Earn, in which mahal neither the respondent nor his vendor, Bhawani Das, was a sharer. The respondent was not at the date of the sale a sharer in any of the five new mahals ; he was, however, the mortgagee in possession of part of the share of Bhawani Das, the vendor, in mahal Bhawani Das. The appellant and Bhawani Das are not related to each other. The respondent, who is a Mahomedan, is not related to the appellant or to Bhawani Das. Prior to the partition of 1905 mauza Pala Kher was an unpartitioned mauza in which the appellant and Bhawani Das were sharers. Of the history of mauza Pala Kher prior to 1863 their Lordships are unaware, but in 1863 all the sharers in the mauza were apparently Mahomedans. The evidence to prove the custom of pre-emption upon which the appellants claim is based consisted of extracts from a w7ajib-ul-arz of mauza Pala Kher of 1863, upon extracts from a wajib-ul-arz of the same mauza of 1870, and of a judgment of the Subordinate Judge of Meerut in 1875 in a suit for pre-emption which was confirmed by the High Court at Allahabad in 1876. The cause of action in that case arose, of course, long anterior to the partition of mauza Pala Kher, but the judgments do afford evidence that there existed in mauza Pala Kher a custom of pre-emption under which a relation of a vendor, a sharer in the mauza, was entitled to pre-empt on a sale to a stranger to the mauza, but that is not the custom upon which the appellant must rely in this suit. The extract from the wajib-ul-arz of mauza Pala Kher, which was prepared on June 16, 1863, as translated and so far as it is material is as follows " In future every co-sharer mortgagor or mortgagee shall as such be at liberty to make transfers. But he shall make transfers first in favour of his own and ekjaddi brothers and after them in favour of co-sharers in the khata and patti as well as in favour of the proprietors of the village. If none of them take he shall be competent to make transfers in favour of strangers. If there is a dispute regarding difference in consideration it shall be decided by arbitration." The wajib-ul-arz of 1863 was signed by all the sharers and by some, if not all, of the mortgagees. The corresponding clause in the wajib-ul-arz of 1870, as translated in the record, is as follows " In future co-sharer mortgagor or mortgagee has as such power. He shall have power to make transfers first to his own and ekjaddi brothers and next to co-sharers in the khata and patti as well as to proprietors. If none of the aforesaid persons takes he shall have power to transfer it to a stranger. If there arises any dispute as regards the price being more or less it shall be decided by arbitration." In paragraph 14 of the wajib-ul-arz of 1870 it is expressly stated, " Custom as to pre-emption—Pre-emption is allowed." There can be no possible doubt that the clauses to which their Lordships have referred set out what the sharers in mauza Pala Kher had in 1863 and in 1870 agreed to be the custom of preemption in the mauza. It is to be presumed, as the contrary has not been shown, that the wajib-ul-arz of 1863 and the wajib-ul-arz of 1870 had been properly prepared in accordance with the law then in force, and with the "Directions for Revenue Officers in the North-Western Provinces of the Bengal Presidency," which had been promulgated under the authority of the Lieutenant-Governor of those provinces. The references in the clauses above mentioned to mortgagors and mortgagees are obscure. The references in the clauses above mentioned to mortgagors and mortgagees are obscure. The sharers in mauza Pala Kher may have intended that if a mortgagor should assign his interest as a mortgagor he should offer it in the first instance to his own or his ekjaddi brother and then to a sharer In the khata and patti, or to a proprietor in the mauza, and if they should refuse to purchase it he might assign it to a stranger, and in the same way if a mortgagee should wish to assign his mortgagees interest his right to assign it should be similarly limited. In their Lordships opinion it was not meant by the clauses to which they have referred to treat mortgagees as such as sharers in the mauza and to confer on them a right to pre-empt. Having regard to some of the decisions of the High Court of Allahabad, which have been referred to in the arguments in this appeal, it is unfortunate that the record which is before the Board does not show what was the vernacular word in the wajib-ul-araiz of 1863 and 1870, which has been translated as " co-sharer," or what was the vernacular word in the wajib-ul-arz of 1868 which has been translated as " village." The wajib-ul-arz of 1863 contained a clause as to partition which, as translated in the record, was as follows " 7. Partition, separate and compact. Every one can get his property partitioned to the extent of his share. And, if the area be compact, he can also get a separate mahal formed. If at the time of partition the grove of one person comes to be included in the lot of another, the planter of the grove shall remain in possession as before, but the planter shall (have to) give land of the same quality in exchange. As to a well, the costs of construction shall be given to the person who constructed it. As to a well, the costs of construction shall be given to the person who constructed it. If the khudkasht land of one person comes into the possession of another, then he (the person in possession) shall relinquish it of his own accord or shall pay rent as a tenant." It appears to their Lordships that it may reasonably be inferred from this clause that the sharers of 1863 in mauza Pala Kher not only contemplated that the mauza might subsequently be partitioned into separate mahals, but also intended that on a partition off from the mauza of a separate mahal the sharers in the other mahals or in the unpartitioned portion of mauza Pala Kher should as such have no share or other proprietary interest in the separated mahal. It does not appear from the extracts from the wajib-ul-arz of 1870 which are printed in the record whether the wajib-ul-arz of 1870 contained a similar clause, but it probably did. It appears from the rubakari of December 5, 1902, which was drawn up for the carrying out by the amin of the partition of mauza Pala Kher that the partition should be a perfect partition; that a grove should be allotted to the mahal of the person who had planted it; and that a Mahomedan tomb, which stood in the abadi, should be allotted to the share of the Mahomedan. The Subordinate Judge of Aligarh found that a custom of pre-emption prevails in mauza Pala Kher ; that the partition of the mauza and the separation of the plaintiffs mahal Salig Ram from that of the vendor did not affect the custom of pre-emption ; and that the plaintiff, the a]3pellant here, had a right to pre-empt as against the vendee, the respondent here; and on March 28, 1911, he gave the appellant a decree for pre-emption. From that decree Ahmad Said Khan, the respondent here, appealed to the High Court of Judicature at Allahabad. The Chief Justice and Tudball J., before whom the appeal came for hearing, allowed the appeal and dismissed the suit. From the decree of the High Court this appeal has been brought. Pre-emption in village communities in British India had its origin in the Mahomedan law as to pre-emption, and was apparently unknown in India before the time of the Moghul rulers. From the decree of the High Court this appeal has been brought. Pre-emption in village communities in British India had its origin in the Mahomedan law as to pre-emption, and was apparently unknown in India before the time of the Moghul rulers. In the course of time customs of pre-emption grew up or were adopted among village communities. In some cases the sharers in a village adopted or followed the rules of the Mahomedan law of pre-emption, and in such cases the custom of the village follows the rules of the Mahomedan law of preemption. In other cases, where a custom of pre-emption exists, each village community has a custom of pre-emption which varies from the Mahomedan law of pre-emption and is peculiar to the village in its provisions and its incidents. A custom of pre-emption was doubtless in all cases the result of agreement amongst the shareholders of the particular village, and may have been adopted in modern times and in villages which were first constituted in modern times. Eights of pre-emption have in some provinces been given by Acts of the Indian Legislature. Eights of pre-emption have also been created by contract between the sharers in a village. But in all cases the object is as far as is possible to prevent strangers to a village from becoming sharers in the village. Eights of pre-emption when they exist are valuable rights, and when they depend upon a custom or upon a contract, the custom or the contract, as the case may be, must, if disputed, be proved. The only evidence in this case to prove that the custom, which is relied upon by the appellant, existed in mauza Pala Kher is afforded by the clauses relating to pre-emption which are contained in the wajib-ul-araiz of 1863 and 1870. These clauses do, in the opinion of their Lordships, prove that prior to the partition of mauza Pala Kher the custom of pre-emption, which is set out in the second paragraph of clause 2 of the plaint, existed and was in force in mauza Pala Kher, but that would not be sufficient to entitle the appellant to a decree. These clauses do, in the opinion of their Lordships, prove that prior to the partition of mauza Pala Kher the custom of pre-emption, which is set out in the second paragraph of clause 2 of the plaint, existed and was in force in mauza Pala Kher, but that would not be sufficient to entitle the appellant to a decree. It would be necessary for him to show, either on the construction of the wajib-ul-araiz or by other evidence, that the custom of preemption which obtained in the unpartitioned mauza Pala Kher would survive a partition of that mauza into separate mahals so as to give a sharer in one of the new mahals a right to preempt property in another of those mahals in which he was not a sharer at the date of the sale. This question was very carefully considered by a Full Bench of the Allahabad High Court in Dalganjan Singh v. Kalka Singh (1. L. R. 22 Allah. 1.), in which Sir Arthur Strachey C.J. and Banerji J. considered that the question in each case is that of the construction of the nature of the particular custom on which the claim for pre-emption is based, and whether the custom can apply to the altered state of things which comes into existence when a perfect partition has been effected. In that case as in this no new wajib-ul-arz was framed on the partition. Their Lordships are not prepared to dissent from the view of Banerji J. in the case which has been referred to, that " where a fresh wajib-ul-arz has not been prepared at partition, it does not follow, as a matter of law or principle, that the custom or contract in force before partition is no longer to have effect or operation." The question must depend upon the circumstances of each case and the inferences which may legitimately be drawn from the evidence. In the present case their Lordships cannot overlook the fact that in 1863 all the sharers in mauza Pala Kher were Mahomedans; that Hindus were obtaining interests in the mauza as mortgagees ; and that the sharers in 1863 were contemplating that the mauza might be partitioned. The right to obtain perfect partition, of course, existed. In the present case their Lordships cannot overlook the fact that in 1863 all the sharers in mauza Pala Kher were Mahomedans; that Hindus were obtaining interests in the mauza as mortgagees ; and that the sharers in 1863 were contemplating that the mauza might be partitioned. The right to obtain perfect partition, of course, existed. Nor can their Lordships overlook the fact that in 1905, when perfect partition was applied for, Hindus had become sharers in mauza Pala Kher, and that nothing was done on partition to provide that sharers in one mahal should have a right of pre-emption in respect of a sale in another mahal in which they were not sharers. Their Lordships are unable to draw the inference from the wajib-ul-araiz and the circumstances in this case that it was intended that, in case of a perfect partition of mauza Pala Kher, a sharer in one mahal should have a right of pre-emption in another mahal in which he was not a sharer. The learned judges who decided the appeal in this case in the High Court apparently considered that the evidence afforded by the wajib-ul-araiz of 1863 and 1870 did not prove any custom of pre-emption, and each of them also relied upon the fact that no evidence that the right of pre-emption has been exercised was given. The learned Chief Justice also apparently suggested doubts as to the value of a wajib-ul-arz as evidence of a custom of pre-emption when unsupported by evidence that the custom had been enforced. As their Lordships have already intimated, they have no doubt that the clauses relating to transfers of shares in the wajib-ul-araiz of 1863 and 1870 stated what the sharers in 1863 and the sharers in 1870 had agreed was the custom of pre-emption in mauza Pala Kher. These clauses were inartistically drafted. The kanungo or other official who collected information from the sharers in the mauza may have been a person who was as ignorant as they were of legal forms and legal phraseology, but before the wajib-ul-araiz were signed by the sharers or sanctioned by the settlement officer the sharers had an opportunity of objecting to any statements contained in them which they did not understand or did not consider to be correct. Pre-emption was a matter in which all the sharers were interested; it was a matter as to which they could agree as to what the custom in their mauza was. Pre-emption, with various incidents, limitations, and restrictions, prevails by custom or by special agreement amongst shareholders in very many, if not in most or all, of the village communities in the province in which mauza Pala Kher is situate. In agreeing as to the custom of pre-emption which should be inserted in the wajib-ul-arz the sharers were not trying to establish any rule of inheritance in the mauza inconsistent with the Mahomedan or the Hindu law of inheritance, and their Lordships fail to see on what principle statements in a wajib-ul- arz as to rights of pre-emption, which are not in contravention of Mahomedan, Hindu, or other law, should not be considered as reliable evidence of a custom of pre-emption. To hold that a wajib-ul-arz is not by itself good prima facie evidence of a custom of pre-emption which is stated in it and that the wajib-ul-arz requires to be corroborated by evidence of instances in which the custom has been enforced would be to increase the costs of litigation in pre-emption cases, and in many cases might practically deprive a sharer of his right. Of course the evidence as to a custom of pre-emption afforded by a wajib-ul-arz may be rebutted by other evidence. The appellant has failed to prove that he is entitled to a decree. Their Lordships will humbly advise His Majesty that the appeal should be dismissed. The appellant must pay the costs of the appeal.