Bind Basni Prasad, J. - (1.) This appeal came up before a learned Judge who, in view of the fact that there was no direct authority on the point requiring decision, referred to a Division Bench. The sole question for determination is whether having regard to the provisions of Section 5, Agra Preemption Act, 1922, a right of pre-emption exists in this village or not. The expression "right of preemption" is defined as follows in Sub-section (9) of Section 4 of the Act : " 'Right of pre-emption' means the right of a person on a transfer of immovable property to be substituted in place of the transferee fay reason of aneh right." Section 5 (1) of the Act provides as follows : "A right of pre-emption shall be deemed to exist only in mahals or villages in respect of which any wajib-ul-arz prepared prior to the commencement of this Act records a custom, contract or declaration : (a) recognising, conferring or declaring a right of preemption, expressly or by necessary implication, whatever its extent and in whatever form it may be expressed, or....." The wajib-ul-arz produced in this case was prepared at the settlement of 1869 70. The translation of the provision about the right of preemption as contained in the wajib-ul-arz is as follows : "At present in this village there is only one lambardar who is himself the owner of the sixteen annaa share. There is no co-sharer and hence there is no necessity for recording the condition of preemption. If in future, there are co-sharers and they desire to sell their share then first of all brothers and nephews nearer to them will have the right to purchase. Failing them, the co sharer will have the right to sell the property to whomsoever he likes. There shall be no right of pre-emption in the case of mortgages and thekas." Both the Courts below have construed the above provision in the wajib-ul-arz as conferring a right of pre-emption on the plaintiff and have decreed the suit. The vendees come in appeal.
(2.) A right of pre-emption pre-supposes the existence of more than one cosharer in the village. There can be no occasion for the exercise of such a right if there are no co-sharers in the village. Section 5, Agra Pre-emption Act, 1922, which deals with the right of pre-emption presupposes the existence of more than one co-sharer in the village. It lays down that if in a wajib-ul-arz there is a record of a custom, contract or declaration of a right of pre emption, then it shall be deemed to be a proof of the existence of such a right in the mahal or the village concerned. The provision in the wajib-ul-arz quoted above is not a record of a custom nor of a contract of right of pre-emption. Learned counsel for the respondent has argued that it is possible that there was a custom prior to 1869 70; but on the particular date when the wajib-id-arz was drawn up the operations of that custom were suspended by reason of the fact that the property was held by a single proprietor. No record earlier than 1870 has been produced in proof of this. Probably there is no such record. The terms of the wajib-ul-urz which have been set out above do not indicate the previous existence of any such custom. If there existed any such custom before, it could have been recorded in the wajib ul-arz that a custom to that effect was in vogue before. The only question which remains now is whether the above provision amounts to a declaration, recognising, conferring or declaring a right of pre-emp-tion expressly or by necessary implication. My construction of this wajib-ul-arz is that it is a declaration of the pious wish of the sole proprietor and not a declaration of "a right of pre emption." A distinction must be made between the declaration of a wish and the declaration of a right. As the village was owned by a sole proprietor in 1869-70, there can be no right of preemption at that time. But the proprietor wished that when his descendants grew in number, then in the interest of the compactness of the property the right of pre emption should be applied. As the entry in the wajib-ul-arz in tbis case does not record any existing custom or contract, nor does it declare any existing right of pre-emption. I am of opinion that it cannot confer any right of pre-emption under Section 5, Agra Pre-emption Act. I agree with my learned brother and allow the appeal, dismissing the suit with costs throughout. Sapru, J.
(3.) This appeal has been presented by the defendants and arises out of a suit which was brought by the respondent for pre-emption under Section 5, Agra Pre-emption Act. Defendant 3 is the proprietor of a village called Hajipur. On 22-5-1945 he sold his entire share in favour of defendants l and 2. The plaintiff claiming to be the pre emptor, asserts that he has a right to preempt the property in preference to defendants 1 and 2 who are strangers. Tbe suit was resisted by the vendee appellants on the ground that it was incorrect to assert that there was any custom of pre emption in the village in dispute. Both the Courts below decreed the plaintiff's suit, holding that there was a custom of pre-emption in the village. The vendee-defendants have come up in appeal to this Court.;