JUDGMENT
1. This is a plaintiffs' appeal arising out of a suit for pre-emption. On 8th July 1924, and 1st September 1924, Shiam Lal purchased shares in a village under two sale-deeds from two different cosharers for Rs. 15,000 and Rs. 18,000 respectively. On 7th July 1925, a suit for pre-emption was brought by the present plaintiffs to pre-empt both these sales. On the same day about two hours after the filing of the plaint a sale-deed by Shiam Lal in favour of the contesting defendant Umrao Singh was presented for registration under which the two shares were transferred in lieu of Rs. 33,000. The whole amount was not paid in cash and Umrao Singh executed a mortgage deed for Rs. 44,200 hypothecating the property transferred to him as well as some other property belonging to him. On 8th October 1925, the present plaintiffs impleaded Umrao Singh in their suit and got the plaint amended by adding his name therein and also a new para. 7-A, in which it was alleged that the sale-deed in his favour was fictitious and nominal and was ineffective because it was taken during the pendency of the suit. The position that the sale-deed in favour of Umrao Singh was fictitious was abandoned at the trial. The plaintiffs took their stand on the provisions of Section 52, T.P. Act, and contended that the transfer in favour of Umrao Singh was in no way binding upon them.
2. The learned Subordinate Judge has upheld Umrao Singh's defence that inasmuch as he was a cosharer as well as a relation of the vendor and had a preferential right of pre-emption he was entitled to resist the plaintiffs' claim on the strength of the sale-deed taken by him. That the doctrine of lis pendens governs vendees in pre-emption suits is now well settled. We may refer to the case of Bhikhi Mal v. Debi Sahai A.I.R. 1926 All. 179. The point which arises in this appeal is however slightly different. If Umrao Singh were taking his stand only on the sale-deed in his favour he would be prevented by that doctrine from depriving the plaintiffs of their right of pre-emption. On the other hand if they are claiming the right to take the property from the original vendee by virtue of their own preferential right of pre-emption, they are not basing their claim on the sale-deed but on their paramount title. A pre-emptor may either go to Court and sue for pre-emption, or may induce the vendee to re-transfer the property to him thereby avoiding such suit. A private transfer of this kind can be an acknowledgment of such right of preemption and an acceptance of his claim, and may be made to him in recognition of his right. That a pre-emptor can acquire property by private deed from the vendee, has been recognized by this Court in several cases to which we shall refer presently. The learned advocate for the appellants contends that in view of the provisions of Section 52, the defendant Shiam Lal was prevented from dealing with the property during the pendency of the suit, and that therefore the only course open to Umrao Singh if he wanted to claim the property by pre-emption was to institute a suit. It is however, clear that Umrao Singh obtained his deed before the expiry of the period of limitation for pre-emption, and paid the exact amount of price which had been paid by the vendee to the vendor. A somewhat similar case arose in Manpal v. Sahib Ram [1905] 27 All. 544. Although the Full Bench did not consider it necessary to express any opinion on the effect of Section 52, T.P. Act, they did hold that if the plaintiff got his plaint amended and did implead the subsequent purchaser who had a preferential right of pre-emption, it was no longer open to him to object to the finding as to his preferential right upon the issue raised at this invitation and to say that the Court should disregard it. On facts the present case is similar to the case before the Full Bench and is governed by the principle laid down by it.
3. Furthermore, we are of opinion that even having regard to the provisions of Section 52 the plaintiffs must not succeed. Umrao Singh acquired this property before his right to pre-empt it was lost to him. In the case of Bachan Singh v. Bijai Singh A.I.R. 1926 All. 180 two suits for pre-emption had been filed by rival pre-emptors having equal claims, and on the date of the filing of the second suit the vendees sold the property in suit to another person having an equal right of pre-emption with the two sets of plaintiffs. This was a private transfer made at the time when the limitation for pre-emption had not expired. This last mentioned transferee was on equal footing with the cosharers who were claiming pre-emption. The Bench held that these three sets were entitled to divide the property proportionately among them, treating the purchaser under a private deed on the same footing as those who had brought the suit. By not allowing the cosharer to retain the whole property which he had purchased under a private deed, the learned Judges recognized the applicability of the principle of lis pendens. On the other hand, by allowing him to retain one-third of the property they accepted the principle that a pre-emptor need not necessarily bring a suit for pre-emption, but may acquire the property direct from the vendee. We think that the principle underlying that decision applies to the present case, and Umrao Singh is entitled to fall back upon his right of pre-emption independently of his rights as a vendee of the deed of sale dated 7th July 1925. It is not disputed before us that Umrao Singh, being both a cosharer and a relation of the vendor, has a preferential right as against the present plaintiffs. In these circumstances he is entitled to retain the whole of the property: Jagrup Singh v. Indrasan Pande A.I.R. 1926 All. 216. The plaintiffs' suit must accordingly fail and the appeal is accordingly dismissed with costs.