JUDGMENT

Smith, J - In connexion with the above second civil appeal, which came up before a Bench of this Court consisting of the Hon'ble the Chief Judge and the Hon'ble S.M. Raza, J., three questions have been referred for decision by a Full Bench.

2. Briefly to recapitulate the facts, a certain piece of land was acquired by the Secretary of State for India in Council in 1907 for public purposes, and an opium godown was constructed upon it. In 1928 the Secretary of State decided to sell the land and the building, and after a notification by the Collector a sale by public auction took place on 17th November 1928. The agent of one Raja Harnam Singh made the highest bid, Rs. 800, on that date, but the bid was not accepted and a second auction was notified for 20th December 1928. It was postponed to 22nd December, and on that date one Sardar Gur Bux Singh made the highest bid, Rs. 1,350. This bid was accepted by the Board of Revenue, and a sale-deed was executed on behalf of the Secretary of State in favour of Sardar Gur Bux Singh on 3rd August 1929, and registered on 9th December 1929. In respect of this sale, two persons asserted a right of pre-emption, Raja Harnam Singh and one Bans Lal. Raja Harnam Singh made Sardar Gur Bux Singh and Bans Lal defendants in his suit, and Bans Lal in the othersuit made defendants Sardar Gur Bux Singh and Raja Harnam Singh. The two suits were tried by the learned Munsif of Fatehpur, in the Bara Banki District, and he decreed the suit of Raja Harnam Singh, and dismissed that of Bans Lal. Sardar Gur Bux Singh and Bans Lal both appealed, and the learned Additional Subordinate Judge of Barabanki dismissed both the appeals. Sardar Gur Bux Singh then came to this Court in second appeal, and the Bench of this Court before which the appeal came up, as has been mentioned already, referred three questions for decision by a Full Bench. Those questions are:

(1) Is the plaintiff estopped from claiming the right of pre-emption ? (2) Is the law of pre-emption as enacted in the Oudh Laws Act 1876 inapplicable to the circumstances of this case ? (3) Is the sale in question made by the Secretary of State for India in Council immune form a claim for pre-emption by reason of the Crown Grants Act 15 of 1895, or any other law in force ?

3. It was contended before us by the learned Counsel for the appellant that the provisions of the Oudh Laws Act 18 of 1876, relating to pre-emption, contained in Chapter 2 of that Act cannot in the nature of things apply to public auctions, since the vendor is unable to notify any definite price at which he is willing to sell the property. Reference was made to Sections 10, 11 and 13, Chapter 2 of the Act. Reliance was also placed on the provisions of the Crown Grants Act 15 of 1895. The learned Counsel for the appellant referred both to Sections 1 and 3 of that Act. His argument as regards Section 2 was that it is provided in that section that

nothing in the Transfer of Property Act 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or here-aiter to be made by or on behalf of,

the Sovereign, his heirs or successors, "or by or on behalf of the Secretary of State for India in Council to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.

4. It was accordingly argued that the transaction with which we are now concerned was not a sale within the meaning of Section 54, T.P. Act, and that therefore no right of pre-emption can be asserted in respect of it. It seems to me that that argument is very unsubstantial since we have to consider whether a sale can be said to have taken place not within the meaning of the Transfer of Property Act but within the meaning of the Oudh Laws Act. The argument based on Section 3, Crown Grants Act, however must, in my opinion, prevail. That section runs as follows:

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