JUDGMENT Lindsay and Sulaiman, JJ.
1. Second Appeals Nos. 40 of 1922 and 144 of 1922 are connected appeals and arise out of two suits for pre-emption. On the 27th of February, 1919, one Ant Ram executed a sale-deed of certain shares in mauza Pawaoli in favour of Hukm Chand, Sukhdeo and Rup Singh, defendants vendees. On the 25th of February, 1920, Har Gobind, who was a co-sharer in the village, instituted a suit No. 149 of 1920 for pre-emption of this property. This was followed by another suit instituted on the 27th of February, 1920, by Ram Dayal, Bansidhar and Jagram, numbered as suit No. 159 of 1920. The two plaintiffs Bansidhar and Jagram have since withdrawn from the suit. These two suits were instituted in the court of the Munsif.
2. A third suit was instituted in the court of the Subordinate Judge by Ram Dayal the second, but we do not know the date on which it was filed. Ram Dayal the second was impleaded in the two suits first mentioned but the plaintiffs of those suits were 'not impleaded in the suit by Ram Dayal the second. The first two suits were dismissed by the Munsif on the 15th of September, 1020, and the third suit was decreed on the 10th of August, 1920.
3. The Munsif dismissed the plaintiff's suit on the ground that both sets of plaintiffs had notice of the sale and had refused to purchase the property. In the court of the Munsif Ram Dayal the second, who was the plaintiff in the third suit, was impleaded as a pro forma defendant. He was originally alleged to be a: minor and an application was made that he should be brought on the record under the guardianship of his mother. Ram Dayal the second, however, appeared in both the suits and stated that he was of age. The court of first instance went into the question of his minority and found that lie was of age. Ram Dayal the second was actually represented by a vakil in the court of first instance and contested the suit. No application, for amendment of the plaint was, however, filed by the plaintiff, nor was any amendment ordered by the court. The name of Ram Dayal the second, therefore, continued in the plaint as a minor under the guardianship of his mother. When the plaintiffs appealed to the lower appellate court, they impleaded Ram Dayal the second as major and he was again represented by a vakil. The lower appellate court found in favour of the plaintiffs that it had not been established that they had any knowledge of the sale or that they had refused to purchase the property. It also found that the real sale consideration was Rs. 1,000. Both the suits were, however; dismissed on the technical ground that Ram Dayal had been treated in the court of first instance as a minor whereas in fact he was of age.
4. We are of opinion that the decrees of the lower appellate court cannot stand. It is true that no amendment of the plaint was made and the name of Ram Dayal continued to be entered as a, minor. All the same he had full knowledge of the proceedings in court. He actually appeared in court and was represented by his vakil as major and was also represented as such before the lower appellate court. Assuming that there was any irregularity, it was fully cured by the conduct of both the parties. We, therefore, think that this ground was no sufficient ground whatsoever for dismissing the suits altogether. The case of Ramachari v. Duraisami Pillai (1898) I.L.R. 21 Mad. 167 and that of Ganga Ram v. Mihin Lal (1906) I.L.R. 28 All. 416 are authorities in favour of the view we have taken.
5. It is found by the lower appellate court that all the three pre-emptors had equal rights and none had a preferential right. They, there five, are entitled each to a one-third share in the pre-empted property.
6. We accordingly allow these appeals, set aside the decrees of the lower appellate court and decree the plaintiffs' suits as directed below. In view of the circumstances, however, reach party should, bear its own costs. The decree shall be prepared in accordance with Order XX, Rule 14.
7. The claim of each of the two plaintiffs is, therefore, decreed for a one-third share of the property on payment of one-third of the sale consideration as found above, within 60 days from this dale. In case of non-payment it would be open to the plaintiff in the connected suit to deposit that amount within an additional period of 30 days and claim that one-third share also. On failure of payment by either of the two plaintiffs the appeals will stand dismissed with costs.