JUDGMENT

1. The faces are fully set forth in our judgment, dated the 3rd of August 1921. On the 9th of June 1917 Mrs. Kinloch executed a sale-deed, in favour, of the defendant-vendee, of considerable property including share in two villages, Kachhpura Bibamau and Mahal Girwar Singh of Mouza Salehdi. In both these villages the plaintiff was a co-sharer at the time o the sale. On the 30th of January 1918 under a prviate sale-deed, the plaintiff transferred all his interest in Mahal Girwar Singh of village Salehdi in favour of a third party. A few months after this, the present suit for premption was instituted in which the plaintiff omitted to pre-empt the share in Mauza Salehdi. On behalf of the defendent it was pleaded inter alia that there was a custom of preemption existing in village Salehdi under which the plaintiff was entitled to pre-empt the share transferred therein, and that, inasmuch as the. transaction of the 30th of January 1918 was in reality a mortgage by conditional sale, the plaintiff had still a subsisting proprietary right in it and had a right to pre-empt. By his not having claimed pre-emption in respect of part of the property transferred, his whole claim was barred. It was further pleaded that in any case the plaintiff, having voluntarily deprived himself of his right to pre-empt a portion of the property, was prevented from pre-empting the remainder. As there was no clear finding on the question of the existence of a custom in Mauza Salehdi, this Court sent down an issue on the point and also directed the Court below o record a clear finding as to the values of the different parts of the property. That finding has been returned.

2. The finding on the question of custom must be accepted. The defendant produced a copy of the waiib-ul-arz of 1872 which clearly records a custom of pre-emption under which a co-sharer in the patti in which the property is situited has a first right, and, after him, co-sharers in other pattis have a right of pre-emption. On behalf of the plaintiff au earlier wajib-ul-arz of 1833 was produced which simply stated that all the zamindars have the option to sell and mortgage the property but shall first transfer it to co-sharers of the village and, if they do not take it, then to a stranger. But, as pointed out by the Court below, in the year 1833 the sub-divisions into pattis did not exist, and therefore, the entries in the two wajib-ul-araiz are not necessarily contradictory, furthermore, the defendant relied on a judgment of the year 1882 by which a claim for pre-emption was actually decreed on the basis of custom. The defendant by the production of these pieces of evidence had established a prima, facie case that the custom exists. That case has in no way been rebutted. We are, therefore, of opinion that the finding of the lower Court that there does exist a custom of pre-emption in village Salehdi, Mahal Girwar Singh, is correct.

3. The next important question which requires consideration is as to whether the transaction of the 30th January 1918 was an out and out sale or a mortgage by conditional sale. Under that document, Maharaj Singh, in lieu of Rs. 3,000, which was part of the amount due on a previous mortgage-deed, dated the 19th December 1905 purported to transfer his share in villages Salehdi out and out, but the document contained a provision to the effect: "If within six years in the month of Jeth, I the executant, pay the amount of sale consideration, Rs. 3,000 and the arrears of rent which may then be due against the tenants, the vendee shall re-convey the vended property to me, otherwise the property shall not be re-conveyed."

4. We may also note that at one place in the body of the document the consideration for this deed of transfer is described as "mortgage-money." The original document shows that the scribe had first written the words zar-e-saman (sale consideration); that was struck out and the words zar-e-rehan (mortgage-money) were substituted. The transferor act