Henry Richards, C.J. and Tudball, J.
1. This appeal arises out of a suit for pre-emption. The sale in respect of which the plaintiffs brought their suit took place on the 2nd of May, 1910. The suit was instituted on the 2nd of May, 1911. On the 4th of May, 1911, the vendee re-sold the property to Kamta Prasad the appellant. For the purposes of the present appeal it must. be assumed that a custom of pre-emption as set forth in the plaint (paragraph 2) prevails in the mahal in which the property is situated. The original vendee was a stranger. The plaintiff is a co-sharer with the vendor, but the appellant, Kamta Prasad, is not only a co-sharer but a relative. We must take it, therefore, that Kamta Prasad had a superior right of preemption at the time of the sale over the plaintiffs. The real question in the appeal is whether or not the mere fact that the property was resold to Kamta Prasad on the 4th of May, 1911, defeats the right of the plaintiffs to preempt this property.
2. We think that the question really depends upon what was the custom prevailing in the mahal. In ordinary language the custom was to the effect that the vendor was bound, when he contemplated selling the property in the first place, to offer it to Kamta Prasad. I Kamta Prasad refused to purchase, he should offer it to the plaintiffs. If the plaintiff refused to purchase, then he was at perfect liberty to sell it to a stranger. In our opinion Kamta Prasad having taken no steps of any kind to enforce his rights until after the period of limitation had expired, is in no better position than he would have been had the property been expressly offered to him and be had refused to buy it. We think it can hardly be contended that if this bad taken place it would be in accordance with the custom that be could afterwards have changed his mind and defeated the claim of the plaintiffs.
3. Reliance has been planed on the case of Manpal v. Sahib Ram (1) (1905) I L. B. 27 All. 644 In that case the circumstances were very similar to the circumstances of the present case, but the appeal had been referred to a Fall Bench on a question arising under Section 52 of the Transfer of Property Act. This question was never decided by the Full Bench. The learned Chief Justice says at page 546: 'This appeal was referred to a Full Bench by two of us on the representation that it involved the determination of the vexed question of the true construction of Section 52 of the Transfer of Property Act. At the close of a lengthy argument Pandit Sundar Lal on behalf of the respondent raised a point which appears to us to ho fatal to the appeal, and it is not necessary having regard to the view which we take upon that point, to determine the main question, which has been discussed before us at very great length.'
4. The learned Chief Justice then proceeds to point out that after the suit had been instituted the plaintiff amended his proceedings by adding the second vendee as a party to the suit alleging that he had a preferential right as against him and also that the sale was fictitious. At page 548 the judgment proceeds: 'We are clearly of opinion that in a case such as the present, the circumstances being as we have described, a defendant having been added who had at the time a right to maintain a suit for pre-emption based upon his preferential claim, and the question of preferential claim having been determined in the suit, it does not lie in the mouth of the plaintiff to object to the finding upon the issue raised at his invitation and to say that the court is to disregard it.'
5. It seems absolutely clear that the judgment in this case proceeded on a misapprehension of the facts. We have sent for the paper-book and we find that the added defendant had no right to maintain a suit for pre-emption at the date upon which he was added nor even on the date upon which the sale was made to him. Thus the whole reasoning upon which the case was decided falls to the ground, In the present case if we apply. the principle laid down by the Full Bench we find that Kamta Prasad had no right to maintain a suit for pre-emption on the date upon which the sale was made to him or on the date upon which he was added as a defendant to the proceedings.
6. We have been referred to the case of Janki Prasad v, Ishar Das (1). This case does not assist the appellant. It only decided that it was necessary that a plaintiff in a pre-emption case should have a right to maintain his suit not only on the date of the sale but on the date on which the suit was instituted.
7. We were also referred to the case of Ram Gopal v. Piari Lal (2). This case was decided on its own facts and circumstances. There the plaintiff had ceased to be a co-sharer by partition at the time the court was called upon to make a decree in his favour. In the present case the plaintiff was a co-sharer at the date of the sale to the original vendee. He continued to be a co-sharer right up to the time that the decree was made in his favour. Under these circumstances we consider that the decree of the court below was correct and ought to be confirmed. We accordingly dismiss the appeal with costs.