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ALLAHABAD HIGH COURT
SULAIMAN, J.
Ram Khelawan & Ors. - Appellants
Versus
Banke Bihari & Anr. - Respondent
Decided On : 29-10-1926
JUDGMENT
Sulaiman, J. - This is a defendants' appeal arising out of a suit for pre-emption. While the suit was pending the defendants obtained a share under a document purporting to be a deed of gift and on the strength of it pleaded that they had equal rights with the plaintiffs so as to deprive them of any preference. The plaintiffs in their turn brought a second suit to pre-empt this transaction alleging it to be one of sale. The Court of first instance dismissed the plaintiff's suits. On appeal the plaintiff's suit to pre-empt the sale-deed has been decreed but the other suit has been dismissed on a finding that the transaction was really one of gift. The defendants come up in second appeal and urge that in consequence of the finding that they had acquired a share in the mahal by virtue of a deed of gift the suit to preempt the sale ought to have been dismissed. This contention, in our opinion, must prevail. By reason of the acquisition of an additional share in the mahal by gift the defendants destroyed the plaintiffs' right of pre-emption; they no longer had a right to be substituted in place of the vendees when the time for the passing of the decree came. No decree in their favour could therefore be passed in view of the provisions of Section 19 of the Agra Pre-emption Act. This interpretation of the section has been accepted in the case of Mt. Qudrat-Un-Nissa Bibi Vs. Abdul Rashid and Another with which we agree. The result, therefore, is that this appeal must be allowed and the decree of the lower appellate Court set aside. We restore the decree of the Court of first instance with this variation that we think that the plaintiffs should be allowed their costs of the first Court inasmuch as they were perfectly justified in instituting the suit on the date when they did bring it. The plaintiffs, however, must pay the costs of the defendants in the lower appellate Court as well as in this Court.
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