Iqbal Ahmad, C. J.
1. This appeal arises out of a pre-emption suit. The sale sought to be pre-empted was effected on 13th May 1935 and was for an ostensible consideration of Rs. 3215. Out of this amount, a sum of Rs. 2800 was paid in cash to the vendor before the Sub-Registrar and the balance of Rs. 415 was left with the vendees for the discharge of a prior mortgage. The finding of the trial Court was that the consideration entered in the sale deed was the true consideration and there is no controversy about this point in the present appeal.
2. There were 13 plaintiffs in the suit. The property sold was in Mohal Khumani, and on the date of the institution of the suit all the 13 plaintiffs were cosharers in Mohal Khumani and the vendees were strangers to that Mohal. There can, therefore, be no doubt that on the date of the institution of the suit all the 13 plaintiffs had a good cause of action and had a right to pre-empt the sale in favour of the vendees. It, however, appears that proceedings for partition of the Mohal were going on in the revenue Court and the Collector had on 24th April 1936 confirmed the partition and the partition was to come into effect from 1st July 1936. The suit giving rise to the present appeal was filed on nth May 1936. As a result of the partition 9 out of the 13 plaintiff's ceased to be cosharers in the Mohal (Mohal Earn Bhawan) to which the property pre-empted was allotted on partition. 4 out of the 13 plaintiffs, however, remained eosharers in Mohal Ram Bhawan and the vendees were strangers to that Mohal.
3. The vendees contested the suit inter alia on the ground that as in consequence of the partition plaintiffs 1 to 9 had ceased to be cosharers in Mohal Ram Bhawan and had lost their right of pre-emption, the remaining plaintiffs viz., plaintiffs 10 to 13 also lost their rights of pre-emption as they had joined plaintiffs 1 to 9 in the suit. This contention of the vendees was overruled by the trial Court and that Court passed a decree in favour of all the plaintiffs conditional on the payment of Rs. 2800. The sum of Rs. 415 that had not been paid by the vendees was left with the plaintiffs for the discharge of a prior mortgage. The vendees appealed to the lower appellate Court and that Court agreed with the contention of the vendees noted above and dismissed the suit of all the plaintiffs. Being dissatisfied with the decree of the lower appellate Court, plaintiffs 10 to 13 have filed the present appeal. They have impleaded not only the vendees but also plaintiffs 1 to 9 as respondents to the appeal. The appeal is contested only by the vendees. In our judgment, the decision of the lower appellate Court is wrong and cannot be supported. The phrase 'right of pre-emption' is defined by Clause 9 of Section 4, Agra Pre-emption Act (Act 11 of 1922) as meaning
the right of a person on a transfer of immovable property to be substituted in place of the transferee by reason of such right.
4. On 11th May 1936, the date on which the suit was filed, the partition, though confirmed by the Collector, had not come into effect and as such on that date all plaintiffs 10 to 13 were cosharers in the mohal in which the property sold was situated. It has been held in Amir Hasan v. Mt. Sardar Begum ('09) 12 O. C. 229 that
a partition does not alter the relationship of the shareholders of the village inter se under Section 131, U.P. Act, 3 of 1901, until the date from which it takes effect, even though the partition has been confirmed and all the papers completed long before that date.
5. It follows that on the date of the institution of the suit all the 13 plaintiffs had a good cause of action and were entitled to seek redress with respect to that cause of action by a suit for pre-emption. In other words, on the date that the suit was filed none of the plaintiffs was a stranger to the mohal and had, therefore, a right of preemption. Reliance was, however, placed by the vendees on Section 21, Agra Pre-emption Act, the relevant portion of which is as follows:
Where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right.....
6. In our judgment, this section is confined in its operation to facts existing on the date of the institution of the suit and not to facts that may come into existence after that date. In other words, the question whether any of the plaintiffs had or had not a right of pre-emption must be determined by reference to the state of affairs existing on the date of the institution of the suit and not by reference to subsequent events. If all the plaintiffs in a pre-emption suit have a right to exercise the right of pre-emption on the date that the suit is filed the mere fact that some of the plaintiffs lose that right during the pendency of the suit cannot adversely affect the rights of the remaining plaintiffs. In the present case, as already stated, all the 13 plaintiffs had a right to pre-empt on 11th May 1936. The suit, therefore, did not offend against the provisions of Section 21, Preemption Act. In this connation, it is well to remember that Section 21 is in the nature of a penal section and as such must be strictly construed. Reference was also made on be-half of the vendees to Section 19, Agra Pre-emption Act which inter alia provides :
No decree for pre-emption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree....
7. In view of this section, no decree could be passed in favour of plaintiffs 1 to 9 as prior to the date of the decree, they had lost their share in the mohal to which the property pre-empted was allotted and to this extent undoubtedly the decree of the trial Court was wrong. But as plaintiffs 10 to 13 had the right of pre-emption both on the date of the suit and on the date of the decree they were entitled to a decree for pre-emption with respect to the entire property sold. The vendees also contested the suit on the allegation that they had become cosharers in the mohal by virtue of a deed of gift. The trial Court held that by the gift the vendees had not acquired an indefeasible right in the mohal and this finding of the trial Court was not contested in the lower appellate Court by the vendees. This point cannot therefore be allowed to be raised now in second appeal. For the reasons given above, we allow this appeal, set aside the decrees of the Courts below and decree the claim of the plaintiff-appellants conditional on the payment of a sum of Rs. 2,800 within three months from today's date. If the amount has already been deposited, it will be open to plain tiff-appellants to treat that deposit as a good deposit provided the remaining plaintiffs whose claim stands dismissed agree to the plaintiff-appellants doing so. If the amount is not deposited within the time allowed, the suit of the plaintiff-appellants shall stand dismissed, other wise it shall stand decreed in the event of their depositing the pre-emption money. The plaintiff-appellants will be entitled to half of the costs incurred by them in all the Courts and the defendants will bear their own costs.