Wanchoo, C. J. - (1.) THIS is a second appeal by the plaintiffs in a suit for pre-emption.
(2.) APPELLANTS Ahmed Bux, his two sons Nasiruddin & Rahim Bux, and three grand-sons Md. Hanif s/o Nasiruddin, and Md. Husain & Md. Shafi sons of Mubarik Husain filed a suit for pre-emption of certain property sold by Hariballabh, Girdhari & Dhokal to Ram Vilas & Ladhu on 29th May 1941 for a sum of Rs. 625/ -. This suit was filed on 9th September 1941 and was suit No. 655 of Smt. 1997. Mubarik Husain, another son of Ahmed Bux, filed a second suit for pre emption in his own right on the 1st of February 1942 against the same vendors and vendees in respect of the same property. This was No. 48 of Smt. 1998. These two suits were consolidated by an order dated 13th December 1942. The respondents contested the suits on various grounds and pleaded inter alia : (1) that the plaintiffs were not the owners of the adjoining property and had no jointness in the intermediate well; (2) that there was no custom of pre-emption in the town of Bhilwara where the property was situated; (3) that Mubarik Husain was the manager of the family of the plaintiffs and he had agreed on behalf of the plaintiffs to the sale and the plaintiffs were therefore, estopped from enforcing the right of pre-emption; (4) that the vendors and the vendees were Hindus, and the plaintiffs being Mohammedans had no right of pre-emption; and (5) that the talabs required by Mohammedan Law had not been made. The trial court after evidence held the plaintiffs to be owners of the adjoining property and also joint owners with the vendors in the intermediate wall, but found against the plaintiffs on the other points stated above. A joint appeal was filed by the plaintiffs in the two suits, but it was dismissed by the District Judge. On all the points decided against the plaintiffs, the learned District Judge agreed with lower court. He also held that the adjoining property did not belong to the entire set of plaintiffs, and the document of title being in favour of Nasiruddin, Rahim Bux & Mubarik Husain also, the remaining four plaintiffs were strangers and, therefore, even if Nasiruddin, Rahim Bux & Mubarik Husain were entitled to a right of pre-emption, that right had been lost by joining strangers in the suit. On second appeal, the learned Judges of the Old Rajasthan High Court observed that the lower courts had erred in not framing issues on the existence of the right of pre-emption and framed two issues and directed the trial court to record evidence and to send its findings. The issues were as follows : - (1) Whether there existed a custom of pre-emption in the town of Bhilwara? (2) If such a custom existed, whether joint ownership of a portion of the property sold, or the ownership of an adjoining property gave rise to the right of pre-emption according to such custom? The trial court found in favour of the plaintiffs on both the issues and sent its finding to that High Court, but before the appeal could be decided, it has come by transfer to this court. It appears from a perusal of the record that both parties have conceded that there is a custom of pre-emption in the town of Bhilwara. The appellants have also produced certain decisions of the highest court in Mewar, in which the custom of pre-emption was recognized in Bhi wara. Learned counsel for the appellants has also referred to a decision of the final court of Appeal in Mewar - Vishnulal and others vs. Fazal Hussain and others (Civil Appeal No. 3 of Smt. 2000 decided on the 18th of April 1945 and approved by the Maharana of Udaipur on the 22nd of April 1945) in which the following summary of the law of pre-emption in Mewar has been laid down: (1) "pre-emption has been in force in Mewar from times immemorial and has come to be recognized as the customary law of the land and applies to all residents of Mewar regardless of their religious persuasion. (2) The custom having had its origin in the Mohammedan Law, that law must be applied where there is no evidence of custom different from and not co-extensive with Mohammedan Law. (3) As regards talabs it was not necessary to insist upon the strict performance of the condition of Mohammedan Law, but the pre-emptor should assert his right of shuffa within a reasonable time of the news of sale coming to his knowledge". That decision was followed by the Udaipur Bench of this Court in Kurban Hussain Bohra vs. Bhagchad Kalal Moda Khatik (Civil Appeal No. 373 of Smt. 2003 decided on the 22nd of December 1949 ). It must, therefore, be held that there was a custom of pre-emption in Bhilwara and that custom would be presumed to be co-extensive with Mohammedan Law except so far as any incident of pre-emption may be proved to be superseded by custom. In respect of talabs, the law as stated above is that although strict performance of the talabs is not necessary, the right must be asserted within a reasonable time. In the present case, there is no evidence that the right was asserted within a reasonable time. Of all the plaintiffs, only one Mubarik Husain came into the witness box but he did not make any statement as to when he asserted this right. As regards Mubarik Husain, there is also the concurrent finding of the two courts that he had agreed to the sale being made in favour of the vendees and in token of such agreement attested the sale-deed after it had been read over to him. Learned counsel for the appellants relied upon certain notices which are alleged to have been sent by the plaintiffs to the vendees and the vendors. The postal acknowledgments indicate that these notices were served some time about the 10th or 11th of June 1941. The original notices were not summoned from the defendants and the plaintiffs failed to prove their contents by production of secondary evidence according to law although certain documents alleged to be their copies were placed on the record. Even assuming that the first set of notices were given on the 9th of June as the postal marks of acknowledgment indicate, they were too late as the sale-deed is dated Jeth Sudi 3, Smt. 1997 corresponding to 29th May 1941 As stated above, Mubarik Husain had attested the sale-deed after it had been read over to him and therefore he came to know of the sale on the very day he had attested and delay of so many days thereafter in the assertion of the right of pre-emption cannot be said to be reasonable. The plaintiffs in suit No. 655 of Smt. 1997 are members of the family of Mubarik Husain and live with him and must have come to know of the sale on the same day. None of them have come in the witness-box and the asser-tion by them, even if held to have been made on 9th June, cannot be said to have been made within a reasonable time. The claim of all the plaintiffs must, therefore, fail. As regards suit No. 615 of Smt. 1997 the lower court's findings, that only some of the plaintiffs could be pre-emptors but that they had lost their right of pre-emption by joining strangers with them, is also correct. It was argued by learned counsel for the appellants that the said point was not raised in the trial court and could not have been in taken in first appeal. It may, however, be borne in mind that the respondents had denied the title of the plaintiff's in the trial court and the plaintiffs in proof of their title had produced two title-deeds. One of these title-deeds related to the purchase of half share in the house from Gekhi &| Gattu by Mubarik Husain, Nasirtiddin Jamaluddin & Rahim Bux sons of Ahmed Bux, and the other title-deed is a sale-deed by Nathulal of one-fourth share in the same house in favour of Mubarik Husain & Nasiruddin. The trial court decided the issue in favour of the plaintiffs as a whole without looking at these documents and the learned lower court, therefore, rightly held that Ahmed Bux, Mohammed Hanif, Md. Husain & Md. Shafi had no right, title or interest in the property on the ownership whereof a right of pre-emption could be claimed. Ahmed Bux, was the father of the purchasers and no allegation was made that any part of the purchase money was contributed by him. He was a stranger so far as the accrual of a right of pre-emption was concerned. Similarly, there is no allegation in respect of any contribution by Md. Hanif, Md. Husain and Md. Shafi. Under the Mohammedan Law, a son has no right to the father's property until the inheritence opens out to him, and Md. Hanif, Md. Hasain & Md. Shafi were, therefore, strangers, so far as the enforcement of the right of pre-emption is concerned. Learned counsel for the appellants relied upon Tokh Narain Puri vs. Earn Rachhya Singh and others (A. I. R. 1925 Patna 743), but that decision only lays down that if a person entitled to claim pre-emption joins as plaintiff one who, although otherwise qualified, has not himself performed the preliminary ceremonies of talabs, the suit will not fail. There are, however, observations in that decision as well that if a person entitled to claim pre-emption joins with himself as co-plaintiff, a person who has no such right, he forfeits his own pre-emptive right and the suit must be dismissed as a whole. On this view also the decision of the lower court is correct. It has already been observed that the claim of Mubarik Husain was rightly disallowed by the lower court on the ground of estoppel. As a result, this appeal fails and is dismissed with costs. . ;