JUDGMENT

Radha Krishna, J - This appeal arises out of a preemption suit. On 22nd May 1935, defendants 1 and 2 who are respondents 2 and 3 in this Court, executed a sale deed for a sum of Rs. 125 in favour of defendants 3 and 4 who are appellants here, in respect of plot No. 623 of an area of 1 bigha 5 biswas in village Saras, Pargana Nigohan, District Lucknow. The suit has been decreed by the two Courts below and the vendees, i.e. defendants 3 and 4 have come up in appeal. The following contentions have been raised in support of the appeal: (1) That there are other under-proprietors in the village and the plaintiff's preferential right could be determined only after the drawing of lots among all of them and for this purpose the other under-proprietors should have been impleaded in the suit. (2) That the appellants are also members of the village community because they with one Misri Lal who is the father of appellant 1 and the uncle of appellant 2, formed a joint Hindu family and are tenants of the plot in suit. (3) That the plot in dispute was sold along with one well and as the transfer of well is not pre-emptible, so there could be no pre-emption in respect of the plot as the well and the plot have both been transfer-red by the same sale deed.

2. As regards point 1, it has been contended that the right of pre-emption is available to all persons mentioned in Section 9, Oudh Laws Act, but where there are several persons who are equally entitled to that right, the particular person out of them whose right can be given effect to must be determined by lot between all those persons. The argument is that where there are persons in a village of equal status, none of them can pre-empt unless he has had his right determined either out of Court or in the suit by drawing lots. Reliance is placed upon the last sentence of Section 9, Oudh Laws Act. The two Courts below have held that the application of this sentence arises only amongst rival claimants to preemption and not against those persons who never thought of pre-empting the property at all.

3. The right of pre-emption is defined in Section 6 as a right to acquire immovable property in preference to all other persons. Section 9 gives a list of persons who in the order of preference are entitled to pre-empt when property sold or foreclosed is a proprietary or under-proprietary tenure. The language of Section 9 would indicate that the order of preference mentioned in that Section comes into play only when more than one person mentioned in that Section actually exercise that right. The right is there in all the persons mentioned therein but the order of preference is laid down to regulate the exercise thereof. The last sentence shows that where all rival preemptors are equally entitled to exercise that right then the Court shall determine that right by drawing a lot. The words "to exercise" and "the Court" in this sentence exclude any idea of the determination of preference amongst several intending pre-emptors out of Court. Section 10 also indicates that the question of preference has to be decided in the suit when several persons have exercised the right of pre-emption. Notice of a proposal to sell or foreclose has to be given to all the persons who have a right of pre-emption irrespective of the order of preference. Section 11 lays down that a person having a right of pre-emption in respect of any property proposed to be sold, shall lose such right, unless within three months from the date of the notice mentioned in Section 10 he tenders the price to the person proposing to sell. If the right of preemption is lost on failure to tender the price it goes without saying that it is equally lost where no suit for preemption has been filed. In my opinion the sentence in dispute of Section 9 lays down the procedure of determining the order of preference where several persons having equal right of pre-emption have exercised their right of pre-emption by instituting a suit and the view take