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 before the hearing of the suit, and that defeated the right of pre-emption.

1931. Nov. 9. Dube K.C. for the appellants. There are two distinct lines of decisions by the Allahabad High Court, holding that a decree for pre-emption should not be made (1.) if before the hearing the pre-emptor has ceased to be a co-sharer by reason of a partition or otherwise; (2.) if before the institution of the suit the vendee has sold to a co-sharer who has an equal pre-emptive right. [Reference was made to cases cited in the judgment of their Lordships.] The present decision confuses the two lines of authorities. Baldeo Misir v. Bam Lagan Shukul (( 1923) I. L. R. 45 A. 709.), which was followed, was a case of the first kind and does not apply. In Bhagwan Das v. Mohan Lal (( 1903) I. L. R, 25 A. 421) it was emphasized that a purchase by the stranger vendee of a share does not defeat the right unless it was before the suit. In Rohan Singh v. Bhau Lal (( 1909) I. L. R. 31 A. 530,532.) it was stated that the decisions all seemed to show that the institution of the suit was the critical date. Bihari Lal v. Mohan Singh (( 1920) I. L. R. 42 A. 268.) is against the appellant, but it is submitted that it was wrongly decided. Upon the principle of lis pendens nothing occurring after the suit could affect the lis. One aspect of that principle is embodied in s. 52 of the Transfer of Property Act, 1882, but the principle is of wider application Kassim Shaw v. Unnopershad Chatterjee (( 1863) 1 Hyde, 160.); Gulabchand Manickchand v. Dandi.(( 1873) 11 Bom. H. C. 64.) The principle was held to prevent the defeat of a right of pre-emption in Ghasitey v. Gobind Das (( 1908) I. L. R. 30 A. 467.) and Kehar Singh v. Jehangir Singh.(( 1925) I. L. R. 47 A. 625.) The appellant is supported by the majority of the Full Court of the Chief Court of the Punjab in Sanwal Das

v. Gur Parshad (( 1909) P. R. No. 90.), and by the Full Bench of the Lucknow High Court in Rai Gaya Prasad v. S. Faiyaz Husain.(( 1929) I. L. R. 5 Luck . 12.) As the present case arose before the Agra Pre-emption Act, 1922, operated the decision in Ram Saran Das v. Bhagwat Prasad (( 1928) I.

L. R. 51 A. 411.) does not apply.

E. B. Raikes K.C. and Abdul Majid for the respondent. The object of a custom of pre-emption is to prevent strangers from becoming co-sharers in the village Digambar Singh v. Ahmad Said Khan (( 1914) L. R. 42 I. A. 10,18.), affirming Dalganjan Singh v. Kalka Singh (( 1899) I. L. R. 22 A. 1 (F. B.).) ; the custom therefore does not warrant a decree for pre-emption in this case. The authority of the High Court is clearly against the view that any interest vests in the plaintiff upon the suit for pre-emption being brought Janki Prasad v. Ishar Das.(( 1899) I. L. R. 21 A. 374.) The principle of lis pendens extends