Judgement

Consolidated Appeal (No. 133 of 1929) by special leave from two decrees of the High Court (January 7, 1927), which affirmed a decree of the District Judge of Gorakhpur (October 22, 1923), and reversed two decrees of the Subordinate Judge of Gorakhpur (April 18, 1923).

The appeal raised a question with regard to pre-emption under a recorded custom, the rights of the parties depending upon the law as it stood before the enactment of the Agra Pre-emption Act, 1922.

That question was whether a right of pre-emption is defeated where the stranger vendee after the institution of the suit, but before its hearing, acquires by gift a share in the property subject to the pre-emption independent of the share purchased.

The facts appear from the judgment of the Judicial Committee.

The High Court (Lindsay and Sulaiman JJ.) held, following Baldeo Misir v. Bam Lagan Shukul (1), that it was necessary for the plaintiffs seeking to pre-empt to prove that they had a subsisting right of preference not only when the sale took place or when the suit was brought, but also when the decree was passed. In the present case the purchaser had acquired by a gift an indefeasible right as a co-sharer bef