JUDGMENT Sulaiman, C.J.
1. This is a plaintiffs' appeal arising out of a suit for pre-emption. A rival suit was filed by a third claimant shortly after the present suit which was connected with the suit out of which this appeal has arisen. The transaction was ostensibly in the garb of a gift but the plaintiffs' case was that it was really a sale transaction. The trial Court found that the three plaintiffs had a preferential claim as against the defendant-vendee and that the transaction was in reality a sale deed. On 31st March 1932 the first Court accordingly decreed both the suits giving the plaintiffs in the first suit, who are the appellants before us, a decree for a 1/3 share each in the property in mauza Shahabpur on payment of Rs. 77-12.6 within two months of the date of the decree by each. It further provided that if any plaintiff made a default the other could pay the amount due from him within a further period of one month. The decree, however, omitted to provide what else was to happen if such default took place, and did not say that if the further amount was not deposited the whole suit should stand dismissed. A similar decree was passed in the other suit, but there claimant was also seeking to pre-empt properties other than the share in Shahabpur and he got a decree for both items.
2. On 29th April 1932 the plaintiffs, who are appellants before us, deposited their share of the amount, namely, 2/3, in the Government Treasury, and fulfilled the first condition laid down in the decree. In April 1932 appeals were preferred by the defendant in both the suits in the Court of the District Judge. While these appeals were pending, Sat Narain, the other claimant, appears to have presented a tender for the amount due from him in the Court of the trial Judge and got permission to deposit the amount in the Government Treasury. He however failed to deposit it on that day but deposited the amount on the following day, namely, 1st June 1932. So far as the deposit was concerned it was just too late by one day. The appeals were argued on 6th July 1932 and no ground was taken on behalf of the defendant that Sat Narain had made any such default. Two days afterwards he filed an application before the District Judge alleging that as Sat Narain had made a default his suit should be dismissed and that in consequence the claim of the present appellants as well should be dismissed. Sat Narain did not prefer any objection at all but the present appellants contested the application. The objection has been overruled and the lower appellate Court has allowed the appeals and dismissed both the suits for pre-emption on the main ground that by virtue of the default made by Sat Narain followed by the default of the present appellants the claim for pre-emption must be dismissed. The learned Counsel for the respondents has to concede that as the decree passed by the trial Court 'does not, in so many words, provide that the claim for preemption of the 2/3 share should stand dismissed if the present appellants made default after Sat Narain had made default, it cannot be urged that the claim must fail on the strength of the decree itself. He, has, however, strongly pressed the ground that the fact that Sat Narain made default has made the vendee a co-sharer in the village on the same footing as the plaintiffs and that accordingly the claim for pre-emption cannot now be entertained. He asks us to take into account this extraneous circumstance which certainly took place after the passing of the first Court's decree. Although at one time there was, before the passing of the Agra Pre-emption Act, some divergence of views as to whether events which took place after the trial Court's decree should or should not be taken into account, it was laid down in a series of cases by the special bench under the old law that the loss of the plaintiff's right or the acquisition by the defendant of a fresh interest after the passing of the first Court's decree should not be taken into account by the appellate Court. Obviously such a subsequent event cannot be considered unless fresh evidence is in the first instance admitted and the fact allowed to be either proved or asserted and admitted. In Baldeo Misser v. Ram Lagan Shukul 1924 All. 82, a Bench of this Court, relying on previous cases, held that although it is incumbent upon the plaintiff in a suit for preemption to have a subsisting right on three crucial dates, namely, the date of the sale on which the cause of action arises. The date of the institution of the suit which would give him the status to sue and the date of the judgment of the Court of first instance when the rights of the parties are first to be adjudicated upon an appellate Court should not take into account anything which may happen subsequent to the date of that judgment which had it happened earlier might have deprived the plaintiff of the right to pre-empt. In that case, the belief, that the plaintiff had ceased to be a co-sharer after the passing of the first Court's decree but before the appellate Court passed a decree, was not allowed to be made a ground for the dismissal of the suit.
3. This view finds considerable support from the scheme of the Agra Pre-emption Act. No doubt so far as voluntary transfers taken by a vendee after the institution of the suit are concerned, the recent 'amendment makes them ineffective. But so far as the loss of the plaintiff's interest lie concerned Section 19 makes it quite clear that the plaintiff's right of pre-emption would in no way be affected by any such loss occurring after the date of the first Court's decree. The result is that if once a pre-emption decree has been passed by the trial Court even if the plaintiff ceased to be a co-sharer after that decree and even though that decree has not yet become final, his right of pre-emption cannot be lost. The section does not in express terms apply to the present case which has arisen owing to the defective form of the decree passed by the first Court. This is not a case where the interest of the plaintiff has been transferred or lost after the first Court's decree but the case is where the plaintiff has lost his right of preference on account of the defendant acquiring a fresh status after the first Court's decree. It seems to us that it will be in conformity with the rulings of the Special Bench under the old law and also in accordance with the spirit of the provisions contained in Section 19 to hold that if the plaintiff's right of pre-emption cannot be affected even though he ceases to be a co-sharer after the passing of the first Court's decree his rights should not be lost merely because the defendant acquires a share and puts, himself on the same footing as the plaintiff after the passing of the first Court's decree. It would be anomalous to hold that the right is not lost when the plaintiff ceases to be a co-sharer and yet the right is lost if the plaintiff does not cease to be a co-sharer, but the defendant also becomes a co-sharer. There is no other provision in the Act which conflicts with this view which as stated above, is in accordance with the previous rulings. The Act has not only amended the old law but has also consolidated it, and we therefore think that the old view on this point should be accepted as being correct even under the new act. The Act does not expressly provide for such a case, but there is at the same time nothing in the Act which is inconsistent with it and we must therefore hold that the defendant, by acquiring a fresh status after the passing of the first Court's-decree, is not entitled to defeat the claim.
4. As the defendant's appeal against Safe Narain was allowed by the District Judge and no appeal has been preferred therefrom in this Court we cannot now give the present plaintiffs a decree for the whole share including that which might have gone to Sat Narain. Furthermore, the plaintiff had an opportunity of depositing the amount due from Sat Narain which they failed to do and they cannot have an opportunity now to do so. At the same time, the deoree for 2/3 share in their favour cannot be said to become extinct because of Sat Narain's default. Accepting that Sat Narain's claim has been dismissed we must still hold that the plaintiffs are entitled to get their 2/3 share on-depositing 2/3 of the amount.
5. Curiously enough, both the Courts below have not examined the validity or otherwise of certain mortgages said to be existing on this property nor have they ascertained definitely the exact amounts due under them on the date of the sale deed, but have left this question over for determination in a redemption suit and yet they have deducted the whole of the amount alleged to be due on these mortgages from the pre-emption money and allowed the plaintiffs to pre-empt property on payment of their share of the balance only. This is obviously unjust and unfair. The finding of the Court below that the gross value of the property sold was Rs. 2,000 is not enough when there are alleged to be certain encumbrances. When the Court below was not satisfied that the sale had taken place in lieu of a cash payment only as alleged by the plaintiffs and did not accept the defendant's case that the trans-action was a gift but found that it was a sale transaction for consideration it ought ,to have gone on to ascertain the true value of the interest sold. When the actual price paid cannot be found the Court has to proceed under Section 17(2) of the Pre-emption Act to ascertain the market value of the property. The market value there is the net value of the property which is the subject of the transfer and not its gross value. The net value should be ascertained after deducting only the rateable amounts of their liabilities under mortgages existing at the time of the sale if they cover other properties also. In order to ascertain the net value of the property it is necessary to find out the amounts due on the previous mortgages, if any. This question has not been gone into by the Courts below and we are not sure whether both the parties have led all the evidence which would be necessary. Accordingly, before disposing of the appeal, we send down the following issue for determination:
What was the net value of 2/3rd of the share sold under the sale deed dated 15th July 1930 in Shahabpur after deducting the rateable shares of the mortgage liabilities of the properties as they existed on the date of the sale?
6. We allow three months' time for return of the findings, and parties will be allowed to adduce fresh evidence. On return of the findings ten days will be allowed for objections.