JUDGMENT Iqbal Ahmad, J.
1. This is a plaintiff's appeal arising out of a pre-emption suit. In order to appreciate the reasons that have led me to differ from the lower Appellate Court it is necessary to state the facts in some detail. On 14th September 1934, defendants third party executed a sale deed of certain zamindari share in favour of Beni Madho, defendant first party. The ostensible consideration entered in the sale deed was Rs. 399-15-0. Further, on the same date defendants third party executed a perpetual lease with respect to certain sir plots appertaining to the share sold in favour of defendants second party, who are the sons of Beni Madho, defendant first party. Two rival suits for preemption were filed. One of these suits was numbered as suit No. 385 of 1935 and the other suit that was filed by Sadho Saran who is the appellant in the present appeal was numbered as suit No. 399 of 1935. In his plaint Sadho Saran, plaintiff-appellant, alleged that defendants first and second party were members of a joint Hindu family and that defendant first party, viz., Beni Madho, was the karta of that family. This allegation was admitted by the contesting defendants. It was further alleged in the plaint that the sale and the lease were parts of one and the same transaction and that, because of the "fear of pre-emption," the lease was fictitiously executed and no separate consideration was paid for the same. The accuracy of the sale consideration entered in the sale deed was also disputed. The relief prayed for by Sadho Saran was that a decree for pre-emption be passed in his favour conditional on the payment of Rs. 300 coupled with a declaration that the lease dated 14th September 1934 was a part of the transaction of the pre-empted sale.
2. Defendants first and second party, while admitting the right of pre-emption of the plaintiffs of both the suits with respect to the sale, contested the suit on the allegation that the lease represented a transaction quite distinct from the transaction of sale and was not fictitious, and that the consideration entered in the sale deed was the true consideration. The plaintiffs of suit No. 385 maintained that they had a preferential right of pre-emption as against Sadho Saran. The trial Court, however, held that the plaintiffs of both the suits had equal right of preemption, and there is no controversy about this point in the present appeal. The trial Court accepted the consideration entered in the sale deed as correct. On the question whether the lease was a part of the transaction of sale and was executed with a view to defeat the right of pre-emption the trial Court summarized its conclusion as follows:
The patta might be quite genuine or it might be spurious. In the absence of any evidence on the point I cannot hold it to be fictitious and part of the sale transaction.
3. In view of its finding the trial Court decreed both the suits for pre-emption of the property sold. It passed a decree with respect to half of the property in favour of the plaintiffs of suit No. 385 and similarly it granted a decree with respect to the remaining half of the property to Sadho Saran, plaintiff appellant. It however dismissed Sadho Saran's claim in respect of the declaration that the lease formed part of the transaction of sale. To the plaintiffs of both the suits it granted 15 days time to pay half of the price entered in the sale deed, viz. a sum of Rs. 200, and, in the event of default by the plaintiffs of either suit, the plaintiffs of the other suit were given an additional time of ten days to deposit the amount and thus get a decree for the whole of the property sold. The plaintiffs of suit No. 385 did not appeal against the decree of the trial Court and, so far as they were concerned that decree became final. Sadho Saran however appealed in the lower Appellate Court. By his appeal he assailed the finding of the trial Court with respect to the lease and further urged that the time allowed by that Court for payment of the pre-emption money was too short. The learned Judge of the lower Appellate Court did not record any finding on the question as to whether or not the lease and the sale were parts of one and the same transaction. He rejected the contention of Sadho Saran as regards the inadequacy of time allowed for depositing the pre-emption money and dismissed hie appeal. Sadho Saran had filed his appeal in the lower Appellate Court after the expiry of 15 days allowed by the trial Court for the deposit of the purchase money, and the learned Judge of the lower Appellate Court considered that this fact by itself did warrant the dismissal of Sadho Saran's appeal. In support of this conclusion, the learned Judge relied on a Division Bench ruling of this Court reported in Umrao Singh v. Kanwal (33) 20 AIR 1933 All 113. The learned Judge quoted a portion of the head note in his judgment and concluded therefrom that, if on the date of the hearing of an appeal in a pre-emption suit, it is found that the plaintiff has not, in compliance with the decree of the trial Court, deposited the pre-emption money within the time allowed by that Court, he forfeits his right of pre-emption. In arriving at this conclusion, the learned Judge totally overlooked para. 1 of the head note which gives a distinguishing feature to that case. Para. 1 runs thus:
The mere fact that an appeal is filed to the lower Appellate Court by the defendant does not extend the period granted by the Court of first instance for payment of the pre-emption money. It is true that a decree when under appeal is not final, but this does not mean that a pre-emptor is entitled to say that he can pay the money after the Appellate Court has passed an order in the appeal.
4. It would be noted that in Umrao Singh v. Kanwal (33) 20 AIR 1933 All 113 the trial Court had granted to the plaintiff a decree for pre-emption conditional on the payment of the amount alleged by the plaintiff, to be the real consideration. The plaintiff therefore was satisfied with that decree and had not filed an appeal against the same. He was therefore bound by the decree to deposit the pre-emption money within the time allowed by the Court. The fact that the defendant has appealed could not exonerate the plaintiff from complying with the terms of the decree. It was accordingly held in Umrao Singh v. Kanwal (33) 20 AIR 1933 All 113, that the fact that the defendant had appealed against the decree of the trial Court could be no justification for the failure of the plaintiff to deposit the pre-emption money within the time allowed. The Bench therefore held that by his failure to comply with the decree of the trial Court the plaintiff had lost his right of pre-emption and could not be granted extension of time on the hearing of the appeal of the defendant. Umrao Singh v. Kanwal (33) 20 AIR 1933 All 113, in my judgment, has no application to the present case. In the present case the appeal in the lower Appellate Court was filed not by the defendants but by the plaintiff himself. It is true that the plaintiff did not appeal on the question of sale consideration, but this fact did not disentitle him from urging in appeal that the time allowed for payment of the pre-emption money was in-adequate. Apart from this the appeal embraced another substantial question viz., whether the lease was a part and parcel of the transaction of sale and was brought into existence simply with a view to defeat the right of pre-emption. It may very well be that, if the plaintiff's case on the question of lease is not accepted by the Court, he may not think it his worth while to pay the pre-emption money fixed by the trial Court. In that case it would be idle for the plaintiff to ask for extension of time. On the other hand, if the finding on the question of lease was in favour of the plaintiff the decree of the trial Court will have to be varied, and in that case the Appellate Court would necessarily extend the time for payment of the preemption money. The question under consideration formed the subject of decision by a Full Bench of this Court in Kodai Singh v. Jaisri Singh (91) 13 All 376 (F B),. It was held in that case that a plaintiff in a pre-emption suit could appeal from the decree of the trial Court after the period prescribed therein for payment of the pre-emption money had elapsed without his paying in the pre-emption money fixed thereby. I do not overlook the fact that in that case the appeal by the plaintiff was both with respect to the pre-emptive price and as to the reasonableness of the time allowed for payment. In the case before me, as already stated, the plaintiff did not appeal as regards the pre-emptive price, but he had appealed on the question of lease and this was also a vital question from the plaintiff's point of view. On the decision of this question would depend the plaintiff's decision whether or not he should pay the sum of Rs. 200 as pre-emptive price. The lower Appellate Court was therefore wrong in proceeding on the assumption that the present case was governed by the decision in Umrao Singh v. Kanwal (33) 20 AIR 1933 All 113.
5. Some argument was addressed by Mr. Baleshwari Prasad on the question as to what did the plaintiff mean by the allegation that the sale and the lease formed part of the same transaction, I take it that what the plaintiff meant was that the arrangement between defendants third party and defendant first party was that the property sold along with the sir land should pass in the possession of defendant first party, but in order to jeopardise the rights of the plaintiff as a pre-emptor the device of getting a lease in favour of the sons of defendant first party was resorted to. In other words, the plaintiff's assertion was that the lease was a fictitious document. If this assertion of the plaintiff is well founded-a matter on which I express no opinion-the plaintiff will, on complying with the decree for pre-emption, get possession of the pre-empted property subject to such rights as defendants third party may have to claim exproprietary rights in the sir land. The question whether, notwithstanding the expiry of a long time since the date of the sale the defendants third party will still have a right to claim exproprietary right does not call for determination in the present litigation.
6. In the view that I take the decision of the lower Appellate Court cannot be allowed to stand. There are two courses open to me viz., either to allow this appeal and remand the case to the lower Appellate Court for disposal according to law or to remit issues for findings to that Court. There is a connected execution second appeal No. 1312 of 1938 which is also for disposal before me today. The decision of that appeal will depend on the decision of the present appeal. It therefore appears convenient to keep the present appeal pending and to have findings from the lower Appellate Court on the points which would be sufficient to dispose of the appeal. Accordingly, I remit the following issues for findings to the lower Appellate Court: (1) Whether the sale deed and the lease were parts of one and the same transaction? (2) Whether the lease represented a genuine or a fictitious transaction. Parties will not be allowed to adduce additional evidence. The lower Appellate Court is requested to send its findings to this Court within four months from today's date. On receipt of the findings the usual ten days will be allowed for filing objections.