1. This is a plaintiffs' appeal arising out of a suit for pre-emption. On 5th July 1927 Chittoo Lal sold his sir rights to Madari with the result that he became ex-proprietary tenant of the plots. He tranferred his entire proprietary interest and ceased to be a co-sharer. Subsequently on 30th May 1928 apparently on getting notice of the claim of pre-emption, Madari sold the property back to Chittoo Lal. The suit for preemption was instituted on 4th July 1928, i.e., within one year of the original sale deed. In the plaint the plaintiffs mentioned the dates of both the documents and also stated that the cause of action arose on both the dates and they wanted a decree for pre-emption as against both the defendants. The claim was decreed by the first Court but the lower appellate Court has dismissed the suit holding that there has been a transfer to an ex-proprietary tenant within the meaning of Section 9, Agra Pre-emption Act and the suit is not maintainable.
2. There is no doubt that so far as the second sale of 30th May 1928 is concerned no right of pre-emption accrued on it. Section 9 makes it quite clear that no right of pre-emption accrues on a sale to an exproprietary tenant. Therefore if a suit had been brought more than one year after 5th July 1927, the plaintiffs would not have been entitled to pre-empt the property as against Chittoo Lal on the strength of the transfer made to him on 30th May 1928. But there can also be no doubt that the right to pre-empt accrued under Section 11 of the Act on 5th July 1927 in favour of the plaintiffs against Madari, and Chittoo Lal is a subsequent transferee and therefore a representative of Madari the right of pre-emption thus accrued must subsist unless it has been extinguished. Section 9 does not say that if property ultimately passes on to an exproprietary tenant the right of pre-emption previously accrued is automatically extinguished. It only lays down that no right of pre-emption shall accrue on a sale to such a tenant. It is Section 20 which is applicable to a case where property is reconveyed by a vendee to another person before the institution of the suit. If the property is transferred to a person having a right of pre-emption equal or superior to that of the plaintiff then no suit shall lie. It is therefore obvious that a suit can be brought against Chittoo Lal, who being an exproprietary tenant has no right of preemption equal or superior to that of the plaintiffs. A right of pre-emption as defined in Section 4(9) means the right of a person on a transfer of immovable property to be substituted in place of the transferee by reason of such right. There is no explanation to Section 20 similar to that subsequently added: to Section 12 (3) which would justify the inference that an exproprietary tenant is to be deemed to have a right' of pre-emption equal or superior to that of a cosharer. Nor can any such inference be drawn from the language of Section 9. It seems to us that in view of the definition of the right of pre-emption given in the Act it is not possible to hold that an exproprietary tenant has a right of pre emption equal or superior to that of a cosharer. All that is provided is that no right of pre-emption shall accrue on a sale to him taking place, and not that a right of pre-emption which has already accrued shall be extinguished. We must accordingly hold that the plaintiffs' right of pre-emption subsists.
3. The lower appellate Court has found that the correct sale price is Rs. 208-3-3. We accordingly allow this appeal and setting aside the decree of the lower appellate Court restore the decree of the Court of first instance, and extend the time for payment by two months from this date. If the amount is deposited within the time allowed the plaintiffs will have their costs from the defendant Chittoo Lal. If the amount is not deposited within the time allowed the suit shall stand dismissed with costs in all Courts.