JUDGMENT
1. This is a plaintiff's appeal arising out of a pre-emption suit. It is undoubtedly a curious case which the lower appellate Court describes as a sort of a Chinese puzzle.
2. The vendor is the son of the plaintiff's father whom the plaintiff alleges to be an illegitimate son. The vendor claims to be the legitimate son and further claims that he has got the property under a gift from his father. The plaintiff did not admit these allegations but asserted in the plaint that the vendor was not the owner of the half share in the property transferred which also belonged to the plaintiff, but having stated that, he went cm to state that with a view to avoid the dispute ho was prepared to sue for pre-emption in respect of the property sold. The statement of his counsel was also taken down and it was made clear on his behalf that although for other purposes he was not prepared to admit that the vendor had title he would admit his title for the purposes of the present suit and would not assert his own claim as a proprietor but confine his relief to one of pre-emption of the sale. The trial Court found in his favour that he was entitled to pre-empt and gave him a decree holding that the bulk of the consideration had never passed and was fictitious. The lower appellate Court has upheld the finding of the first Court so far as the question of title and the passing of consideration are concerned but has dismissed the suit on the ground that it is not maintainable. His findings are that the plaintiff claims to be and is certainly the owner and in possession of the property and that the bulk of the consideration mentioned in the sale-deed was false and fictitious and that nothing more than Rs. 76 were paid by the vendee which really went towards the purchase of the stamp paper. The learned Judge has therefore held that the sale is absolutely void and illusory and the plaintiff has got no right of pre-emption.
3. No doubt the plaintiff in order to safeguard his further rights in future was not prepared to admit absolutely that his half-brother was entitled to this property and abandoned his claim so far as the property in the present suit is concerned and never asserted it. Neither did the defendants admit that the vendor had no title at all. In these circumstances there was nothing wrong in the plaintiff abandoning his claim to be the proprietor of the property in suit for the purposes of this case. He can certainly abandon his claim as a proprietor and sue for pre-emption as a cosharer without putting the vendee to the proof of the vendor's title. A claim for pre-emption is one for substitution in place of the vendee and the plaintiff is entitled to admit, indeed in most cases bound to admit, that the vendor has title. The suit therefore was certainly maintainable.
4. The finding as regards the absence of consideration except for a small sum of Rs. 76 must be accepted.
5. It was further found by the trial Court which finding was not upset by the lower appellate Court, that although an item of Rs. 400 has not actually been paid by the vendee to the vendor, it was in fact a real consideration, so that the vendor would be entitled to recover it as part of his unpaid purchase money. As the vendee has not paid this amount to the vendor the liability for this payment will fall on the pre-emptor.
6. We accordingly allow this appeal with costs and setting aside the decree of the lower appellate Court decree the plaintiff's claim for pre-emption of the rights and interest in the property on payment of Rs. 76 within six weeks from this date. The plaintiff will be further liable to pay Rs. 400 to the vendor when claimed. As regards the costs in the Courts below, we see no reason to interfere with the order passed by the lower appellate Court.
7. We dismiss the cross-objection with costs.