JUDGMENT

Mahmood, J. - The contention urged before us on the defendant's behalf raises three main points for determination:

1. Whether the defendant was entitled to claim interest on the mortgage-money for the period between 30th August 1882, the date of the mortgage, and the 23rd August 1883, when he enforced his pre-emptive decree by depositing Rs. 699, the principal consideration-money of the conditional pale in respect of which he enforced his pre-emption.

2. Whether the defendant was entitled to claim any interest after the 21st August 1884, when the deposit by the plaintiff, u/s 83 of the Transfer of Property Act, amounted to Rs. 743.

3. Whether, under the circumstances of this case, the defendant was entitled to costs.

4. I will dispose of each of these points in the order in which I have mentioned them. The first of these questions depends upon the determination of a very important point of the law of pre-emption. That a successful pre-emptor stands in the shoes of the original vendee in respect of all the rights and obligations arising from the sale under which he has derived his title, is a question which stands upon an undoubted basis, for the right of pre-emption is nothing more or less than the right of substitution. This was pointed out by me at considerable length in Gobind Dayal v. Inayatullah ILR All. 775 where the Full Bench of this Court generally accepted nay conclusions as to the nature of the pre-emptive right. This, however, is not a point which is contested on either side in the argument of the learned pleaders for the parties. Alt that the learned pleader for the appellant contends for here is, that his client, having succeeded to, or rather been substituted for, the original conditional vendee, Har Prasad, is entitled to claim the benefit of all the conditions of the mortgage, and is, therefore, entitled to claim interest even for the period antecedent to the 23rd August 1883, when he enforced his pre-emptive decree, by deposit of the consideration of the conditional sale under the decree of the 5th February 1883. I am of opinion that this contention is wholly unsound. It is perfectly true that a successful pre-emptor becomes substituted for the original transferee, and thus becomes entitled to the benefits of the transfer. But it is equally true, and stands to reason, that those benefits cannot be claimed for any period antecedent to each substitution itself. The right of pre-emption as based upon the wajib-ul-arz partakes of the nature of those obligations which fall short of an interest in Immovable property, though they are annexed to the ownership of such property. The nature of such obligations is well described in Section 40 of the Transfer of Property Act, which I refer to only by way of analogical comparison. A pre-emptor, therefore, before his pre-emption is actually enforced, possesses no such right in the subject of preemption as would entitle him to any benefits arising out of the property, which he is only entitled to take by substitution, but has not yet actually taken. On the other hand, the original vendee cannot, whilst he is in possession, be regarded as a trespasser, who would have no right to enjoy the usufruct of the property which he has purchased, nor would it be equitable to hold that the pre-emptor, before he has actually paid the price, should be entitled to the profits of the property, which he can take only upon duly making such payment.

5. This view of the law is supported by some cases to be found in the reports. There is a very old ruling--Uodan Singh v. Muneri Khan 2 Cal. 85 where it was held that if A transfer lands to B by sale, and G afterwards come forward and establish his right of shut or preemption, he will be entitled to the lands at the price paid for them by B. who will be compelled to refund the profit accrued during the period of his possession to 0', receiving himself the purchase-money back from A. That was a case decided so long ago as 1813, and seems to have