JUDGMENT :

BANERJI, J.

1. This appeal arises in a suit for pre-emption in respect of the mortgage of three villages, viz. Ahrauli, Chak Ruknuddin and Chak-Latif. The Court of first instance decreed the claim, and the decree has been affirmed by the lower appellate Court. The mortgagee has preferred this appeal. The learned vakil who appears for him does not press the appeal as regards the share in Ahrauli. As regards the other two villages he contends, that the custom referred to in the wajib-ul-arz, upon which the claim is based, can only be regarded as the custom of pre-emption according to Muhammad an Law. The wajib-ul-arz of the two villages Chak Ruknuddin and Chak Latif recites that “the custom of pre-emption prevails and that every co-sharer has the right to transfer his property subject to the right of pre-emption” It does not set forth what the custom is, and the plaintiffs also in their plaint do not allege any particular custom as prevailing in the’ villages in question. Consequently, having regard to the ruling in Ram Prasad v. Abdul Karim, [1887] I.L.R., 9 All., 513 “in the absence of any allegation or proof as to the existence of any custom different from or not co-extensive with the Muhammadan Law of pre-emption,” that law must be applied to the case.

2. According to that law no claim for pre-emption arises in respect of a mortgage. It is true that in the wajib-ul-arz the word used is intiqal, which covers all kinds of transfers, Placing a reasonable construction upon wajib-ul-arz we must hold it to mean that the right of pre-emption will apply to those transfers in respect of which pre-emption can be claimed. As we have already said, the plaintiffs do not assert any particular custom of pre-emption, They only refer to the wajib-ul-arz, which does not set forth any special rule of pre-emption, Consequently the only rule of pre-emption that can apply is the rule of Muhammadan Law, and under that law the claim cannot be sustained; first, because the transaction is a mortgage, and secondly, because the conditions of the law as to demands were not fulfilled. That being so, the claim in regard to the two villages Chak Ruknuddin and Chak Latif fails. As, however, it is admitted that the plaintiffs have a right of pre-emption in regard to Ahrauli it is necessary that we should have a finding from the Court below as to the portion of the mortgage money which is assignable to the share in Ahrauli comprised in the mortgage. We accordingly refer that issue to the Court below under the provisions of section 566, Code of Civil Procedure. The Court will take such additional evidence as may be necessary. On receipt of the finding ten days will be allowed for filing objection.