a sister's son and so useless. In our opinion it is very
unlikely that this small gốt should have a separate custom
of its own, mixed up as it admittedly is in residence with
other gôts and inhabiting a tract in which among Jats such
adoptions are valid. In the circumstances
we hold that,
notwithstanding the general rule for the Province as a whole,
the burden of proof that this adoption is invalid lies on
the plaintiffs; and, as no instances are forthcoming one way
or the other, the inevitable conclusion is that plaintiffs
have failed to discharge the onus thus laid upon them.

For these reasons we dismiss the appeal with costs.

Appeal dismissed.

REFERENCE SIDE.

18th March 1907.

No. 82.

Before Mr. Justice Chatterji, C.I.E., and
Mr. Justice Johnstone.

GUR BAKHSH,-PLAINTIFF,

Versus

KHAIRATI-DEFENDANT.

Civil Reference No. 52 of 1906.

Attachment-Fodder, liability of, to attachment in execution of decreeCivil Procedure Code, 1882, Section 266 (n)—Punjab Land Revenue Act, 1887, Bection 70.

Held, that fodder required for the owner's cattle is exempt under clause (n) of Section 266 of the Civil Procedure Code, read with Section 70 of the Punjab Land Revenue Act, 1887, from attachment in execution of a decree against an agriculturist,

A Civil Court can only attach so much as will leave in the opinion of the Collector of the District a sufficiency for the owner's cattle.

Wasil v. Muhammad Din (1) superseded.

Case referred by Munshi Barkat Ali Khan, Munsif, 1st Class,
Dasuya, District Hoshiarpur, on 4th June 1906.

The opinion of the Court was delivered by

JOHNSTONE, J.-This is a civil reference by the Small Cause Court of Dasuya, District Hoshiarpur. In an execution proceeding the decree-holder got bhusa belonging to the judg ment-debtor attached, and the question for decision was whether, and by what procedure, it is attachable. In Wasil v. Muhammad Din (1) a Division Bench of this Court held that under Section 266 (b), Civil Procedure Code, there is no prohibition whatever against the attachment of all or any of the bhusa

(1) 93 P. R., 1904.

belonging to an agriculturist. This is no doubt a correct interpretation of that clause, but the Judge, Small Cause Court, properly points out that Section 266 (n) tells a different tale. Under it we have to look at Section 70, Land Revenue Act, 1887, and Volume I, Chief Court Rules and Orders, Part C, Rule 5, Note (4); and it becomes clear that, as regards fodder for cattle belonging to an agriculturist judgment-debtor, the Civil Court can attach only so much as will leave, in the opinion of the Collector of the District, a sufficiency for the owner's cattle. It seems to us that the procedure indicated here is cumbrous and unsatisfactory, but we cannot help that.

We rule, then, that in such cases the Civil Courts must only attach so much as the Collector, to whom a reference must be made, may judge to be right according to the rules of his department.

By this ruling we supersede the Division Bench ruling quoted above; but it is so clear that the Judges who sat on that Bench overlooked clause (n) of Section 266 of the Civil Procedure Code, that we do not think a reference to a Full Bench is called for.

No. 83.

Before Mr. Justice Chatterji, C.I.E, and Mr. Justice

Johnstone.

KHAN ZAMAN,-(DEFENDANT),-APPELLANT,

Versus

FATTEH SHER,-(PLAINTIFF),-RESPONDENT.

Civil Appeal No. 1263 of 1906.

Pre-emption-Sale of share of joint agricultural land to a co-sharer-Suit by another co-sharer of the Khata-Punjab Pre-emption Act, 1905, Section 14.

Held, that under the provisions of the Punjab Pre-emption Act, 1905, a co-sharer in joint undivided agricultural land has no right of pre-emption in respect to a sale of a share of such land made to any of the several co-sharers in the estate.

Section 14 deals with several pre-emptors claiming in respect of the same property but does not provide for the case of a pre-emptor claiming against a vendee who has equal rights with him.

Further appeal from the decree of Misr Jawala Sahai, District
Judge, Mianwali, dated 22nd March 1906.

Gokal Chand, for appellant.

Beni Parshad, for respondent.

APPELLATE SIDE.

17th Jan. 1907.

22nd March 1907.

The order of reference was as follows :

RATTIGAN, J.-The question involved in this case is of importance and should be decided by a Division Bench. It relates to the proper construction of Section 14 of the Punjab Preemption Act, 1905, but here there are not two rival pre-emptors with equal rights. The dispute is between a pre-emptor and a vendee, both of whom are co-sharers in the khata.

The judgment of the Division Bench was delivered by

CHATTERJI, J.-The material facts of this case are that a joint khata of 27 kanals 12 marlas of land at Shabbaz Khel was held by four brothers, Fatteh Khan, plaintiff, Nur Khan, defendant 2, vendor, Khan Zaman, defendant 1, vendee, and Jahan Khan, who is no party to the proceeding. Some five years before suit Nur Khan transferred his one-fourth share to Khan Zaman and this suit was filed by the plaintiff for pre-emption of half the land.

Various pleas were raised by the vendee which need not all be noticed here. The only important ones are that the suit cannot be brought for pre-emption of half the property sold, that partition had taken place and that the claim was barred by time.

The first Court decided all the issues in plaintiff's favour and gave him a decree for one-third of the property sold. On appeal the District Judge, who had the powers of a Divisional Judge, enhanced the decree to a half share.

In the District Judge's Court it was objected by defendant vendee that plaintiff had no prior claim to pre-emption. The same ground is again raised in Revision under Section 70 (1) (b) which being a novel one, under the new Pre-emption Act, has been referred to a Division Bench by the learned Judge by whom the application was first heard. This is the sole point argued before us and requiring decision.

Although the sale took place long before the passing of the Pre-emption Act, the suit was filed after it came into force. Under clause (3) of Section 2 of the Act therefore the claim must be decided in accordance with the provisions of the Act and not otherwise. The suit has been filed within one year of the date of commencement of the Act and is therefore within time under Section 28 of the Act, the limitation being that provided in Article 120 of the Indian Limitation Act and the sale

being an oral one of a share in joint property. In fact the question of limitation is not before us.

The first Court gave a decree for one-third of the land on the ground that the three brothers other than the seller are entitled to proportionate shares. The District Judge enhanced the decree to a half share "according to general principles of equity," as the "first of the 4 brothers' forbearance should be equally divided between the vendee and the pre-emptor. The first Court's decree was obviously based on Section 14 of the Pre-emption Act.

Section 14, however, deals with several pre-emptors claiming in respect of the same property and does not provide for the case of a pre-emptor, claiming against a vendee who has equal rights with him. Nor can a principle which would be of use in deciding the present case be deduced from it. Clause (a) is the only clause which deals with claims by COsharers and provides for their dividing the property pre-empted in proportion to the shares they already hold in the property. The Courts below have evidently decided the claim under this clause. But the language of this clause is clearly inapplicable to a case in which the dispute is between two persons who would have been equally entitled had they both claimed pre-emption, and would have come under clause (a), but one of whom happens to be the vendee and is sued by the other. No rule for deciding such a claim is provided by this or any other clause of Section 14 or is deducible from them. There is no other section to which resort can be had for the solution of the question. Clause (e) does not in terms apply, as this is not a claim by several pre-emptors but only by one. Section 12 of the Act, which defines the rights of the different grades of claimants for pre-emption of village property, declares that in the case of sale of a share in joint land the right belongs to co-sharers jointly in the first instance and then to them severally. This means we think that unless a joint claim is made each co-sharer is entitled to claim pre-emption for himself. If the purchaser is a stranger, such a co-sharer in the absence of a claim by all the co-sharers jointly, can claim and acquire the whole property by pre-emption. There is no provision from which it can be inferred that where the claimant has been able to make a several claim, the acquisition would be for the benefit of other co-sharers.

Is there a different rule if the purchaser happens to be one of the co-sharers? Clearly he does not stand in a different

position to that he would hold if he claimed pre-emption singly. All the co-sharers being on an equal footing, on what ground can pre-emption be claimed by one co-sharer against another, when that other acquires a share of the joint property by private purchase? Under the provisions of Section 12 his right to buy may be postponed to the right of joint purchase by all the co-sharers, but when such a right is not put forward, there is no reason why he should surrender the whole or any portion of his purchase to another co-sharer, who has exactly the same rights as himself.

The present is not a claim by the co-sharers of the khata jointly. Whether excluding the seller and the purchaser, the other two brothers, viz., plaintiff and Jahan Khan, might have sued for pre-emption for the benefit of themselves, reserving a third share for the defendant purchaser is a question we need not decide. This possibly is the only way a joint claim by them which would have been superior to that of the purchaser's right could have been brought, though we do not commit ourselves to this view. But the present claim is merely a claim for preemption of half a share in the property sold. Such a claim is not contemplated or provided for in the Act. The right of pre-emption attaches to the entire bargain to which the right applies, and no change has been made in this respect by the Punjab Pre-emption Act. The claim, whether joint or several, must be for the entire property to which the right attaches.

The right of pre-emption is the right to acquire property in preference to other persons, see Section 4 of the Act. The plaintiff singly has no superior right to that of the defendant vendee, and the decree giving plaintiff a half share in the purchase is open to the same objection that the decree given in Ahmad Din v. Mussammat Hasso (1) was. It gives plaintiff a right to share in the benefits of the purchase made by the plaintiff and not to be substituted for him in the purchase as all pre-emption must mean, or, in other words, it is a decree for co-emption, not pre-emption. The reasoning of the Full Bench judgment in Ahmad v. Ghulam Muhammad (2), therefore fully applies to it. It is not necessary to report that reasoning here. The present Act has made no provision for co-emption.

It is clear then that the Punjab Pre-emption Act contains no provision for the decision of a claim of the present nature. It must therefore be decided on general prin ciples.