JUDGMENT
1. We are of opinion that this case has been rightly decided in the Courts below. The decision no doubt has been on technical grounds, but as the learned Judge of the lower appellate Court has observed, the law of pre-emption is a highly technical law.
2. The suit for pre-emption, which was filed by two plaintiffs, Umar Daraz and his minor son Rafiq Ahmad, failed on the ground that Umar Daraz, being a person who was entitled to bring a claim for preemption with regard to the sale in question, associated in his claim his minor son, who had no such interest as entitled him to claim pre-emption. In fact the Courts below have treated the son as a stranger and consequently, applying the law, which has always been followed in this Court and as it has been expounded in Bhawani Prasad v. Damru (1882) 5 All. 197, they have dismissed the suit.
3. When the case came up here, Mr. Haidar, who appears on behalf of the appellants, in order to cure the defect in the suit, has asked us to remove the name of the minor Rafiq Ahmad from the appeal and allow the appeal to be continued only by the first plaintiff, Omar Daraz.
4. To begin with, the mere removal of Rafiq Ahmad's name from the array of the appellants will not cure the defect in the suit. Again, we do not think we are entitled to resort to any powers of amendment which we have under the Code of Civil Procedure in order to allow an amendment in a case of this kind when the rule of law is that it is fatal for a plaintiff in a pre-emption suit to associate with him in that suit any person who is not entitled to pre-emption. We may refer in this connection to the case reported in Bhupal Singh v. Mohan Singh (1897) 19 All. 324.
5. We have not so far touched on the facts but they are very simple. The property which was sold under the sale-deed in suit consisted of two items, namely some land in a village called Karondi and some other land in a village called Wahabpur. The first plaintiff lives in Karondi and has a share in that village. By virtue of his being a co-sharer in the village he had no doubt a right of pre-emption so far as Karondi was concerned.
6. In Wahabpur it appears that some time before the sale sought to be pre-empted was carried out a share had been acquired by Umar Daraz in the name of his minor son Rafiq Ahmad. Rafiq Ahmad's name appears in the khewat of mauza Wahabpur while the name of Umar Daraz does not. But in the witness-box Umar Daraz himself admitted that his son Rafiq Ahmad was a mere benamidar for him. So far as the property in Wahabpur is concerned, he stated distinctly that it belonged to himself and that he had bought it with his own money. As the Wahabpur property was purchased when Rafiq Ahmad was six years of age, it is not the least likely that Rafiq Ahmad had the money to purchase this property. On the facts, therefore, as admitted by the first plaintiff himself, he is out of Court. He has associated with him in this suit for pre-emption his son Rafiq Ahmad who for the purposes of this case must be treated as a stranger. Mr. Haidar, who has argued the case on behalf of the appellants, has referred us to a ruling of the Oudh Court to be found in Abdullah v. Mt. Wahid-un-nisa (1898) 1 O.C. 308. There the Oudh Court refused to follow the law as laid down in Bhawani Prasad v. Damru (1882) 5 All. 197. It is to be noted here that pre-emption cases in Oudh are dealt with under the special provisions of the Oudh Laws Act, and in any case we must follow the decision of our own Court. So far as we are aware, this case of Bhawani Prasad v. Damru (1882) 5 All. 197, has been consistently followed here. The result is that the appeal fails and is dismissed with costs.