JUDGMENT
1. The plaintiff is the widow of Babu Amrit Lal Kundoo. On the 22nd February 1891, Buddhu took a lease of a plot of land measuring 3 biswas from Amrit Lal. Kundoo for building a house on an agreement to pay a ground rent of Re. 1-8 per year. The lease provided that in case the lessee transferred the materials of the house built by him on the said land, the lessor shall have a preferential right of purchasing them for "a proper price" and that the transfer to any other person shall be valid only in case the lessor refused to take it.
2. On the 7th June 1921 the Defendants Nos. 2 and 3 who are the legal representatives of Buddhu, one of the original lessees, sold one of the houses built on the land aforesaid to Mt. Tulsa for Rs. 150.
3. The house was at that time in the occupation of a tenant, Mt Sundar. Mt. Tulsa sent a notice to Mt. Sundar to vacate the house which she did on the 13th June 1921, but before Mt. Tulsa could take possession of it, Mangru, the son of Buddhu, the original lessee, took possession of the house. A suit was then filed by Mt. Tulsa for his ejectment; and she got a decree in execution of which she obtained possession on the 18th July 1922. The present suit was filed by the plaintiff for pre-emption of the said house on the 2nd July 1923. She relied on the covenant for pre-emption or option of purchase contained in the instrument of lease and one of the questions raised in the suit was whether the claim was within time. There were other pleas raised in the case, the findings of the Court of first instance on which were, in favour of the plaintiff. The suit was, however, dismissed by that Court on the ground that the claim was not within time, inasmuch as it was brought after the lapse of a year from the date of the registration of the sale-deed. The view taken by the lower appellate Court was that as the house did admit of physical possession, the suit was within time from the date on which Mt. Tulsa obtained possession; but it nevertheless proceeded to dismiss the claim because in its opinion the covenant for giving the lessor an option of purchase was not enforceable against the vendee. In support of the latter proposition it relied on the decision in Gopi Ram v. Jeot Ram AIR 1923 All 514. The finding of the lower appellate Court was that the vendee had constructive notice of the covenant of pre-emption embodied in the registered instrument of lease; and that being the case Section 40, T.P. Act applied; and as held in Basdeo Rai v. Jhagru Rai AIR 1924 All 400 and Mohammad Jan v. Fazluddin AIR 1924 All 657, the covenant was enforceable against the vendee. Article 10 of the Indian Limitation Act (IX of 1908) provides a period of limitation of one year for a suit to enforce a right of pre-emption whether founded on custom or contract from the date when the purchaser takes physical possession of the whole property sold or where the subject of the sale does not admit of physical possession when the instrument of sale is registered. The latter clause has reference to the nature of the property which forms the subject of the sale; for as held in Chandan Singh v. Chandi Prasad (1881) AWN 237, if the subject of the sale by its nature admits of physical possession the ability or inability of the vendor to place the vendee in actual possession of the property sold is not material and limitation does not begin till the possession is delivered. In Batul Begam v. Mansur Ali Khan (1898) 29 All 315, it was held by this Court that a share in an undivided zamindari mahal was not susceptible of physical possession within the meaning of Article 10 of the Indian Limitation Act, and constructive possession for, example by the receipt of rent from tenants was not physical possession within the meaning of that article. That decision was upheld by their Lordships of the Privy Council in Batul Begam v. Mansur Ali Khan (1902) 24 All 17. Their Lordships there pointed out that the corresponding article in Act XIV of 1859 provided a period of limitation of one year from the date of "possession" which was altered in 1871 to "actual possession" and that in 1877 the word "physical" was deliberately substituted for "actual" for a restrictive purpose. They observed that actual possession "as applicable to an undivided share in a mahal was not possible and that the words" physical possession could only be deemed to imply personal and immediate possession, regard being had to the form in which the property may exist at the time of the sale. It can hardly be disputed that a house or a shop is capable of physical possession. Article 10 provides that in the case of such property, that is property capable of physical possession the limitation is computed from the date when the purchaser takes under the sale sought to be impeached physical possession of that property.
4. The transfer of physical possession may take place at the time of the sale or at some time later; but if the property admits of physical possession the limitation does not start till the physical possession is actually taken. The question is not free from difficulty; but on a careful consideration of the two clauses as a whole we are inclined to think that the rule applicable to property such as an undivided share in a mahal which is not by its nature capable of physical possession cannot be applied to houses and shops over which physical possession is always possible and practicable. The vendee here attempted to take physical possession, but found that the house was occupied by a trespasser whom she was unable to eject till the 18th July 1922. From that date the suit was within time.
5. The appeal is, therefore, allowed and the claim of the plaintiff decreed subject to the payment of Rs. 150 into the Court of first instance within three months from this date. In case of payment the plaintiff shall get her costs here and below from the defendant including fees in this Court on the higher scale. In case of non-payment the suit will stand dismissed and the defendant-vendee well get her costs from the plaintiff in all Courts including fees in this Court on the higher scale.