1. This is a defendants' appeal arising out of a suit for preemption. The only point in controversy is that the pre-emptor was a cosharer on the date of the sale deed, namely the 16th of July 1927.
2. It appears that a small share of ton pies belonged to Sheoraj and devolved on his widow Mt. Sarupa after his death. She sold this share for Rs. 199. On her death Ajudhia became the reversioner entitled to succeed 1o estate of Sheoraj. Early in 1926 Ajudhia sold this share along with some other property to Ram Sahai, the present plaintiff. But admittedly Ram Sahai did not obtain actual possession nor was his name recorded. He filed a suit for possession of this share against the transferee by avoidance of the sale deed of 1926.
3. While the suit was pending the property in dispute in this appeal was sold by the vendor under the sale deed dated 16th July 1927. Ram Sahai's suit was decreed on 28th October 1929 by the Court in the following terms, namely that the suit for possession be decreed on payment of Rs. 99 within two months from the date of the decree. If money was not paid within the fixed time the suit would stand dismissed. The plaintiff Ram Sahai deposited the amount within the time allowed. He then sued for pre-emption of this property.
4. The first Court considered that the sale deed by the widow was not a void transaction but a voidable one and it was not effectively avoided till the amount was deposited in Court by Ram Sahai. It accordingly held that the plaintiff was not a cosharer on the date when the sale deed in question was executed. The lower appellate Court has come to the conclusion that the sale was void as against the reversioner and its effect terminated on the death of the widow.
5. It seems to us that the view taken by the first Court is right. Had it been found that Ram Sahai was entitle: to the property without the payment of any amount on the ground that the sale was wholly without any legal necessity the position might have been different. But in this case the Court found that Ram Sahai had no absolute right to avoid the sale deed and take possession. He could avoid it and obtain possession on payment of Rs. 99, and if he failed to deposit that amount within the time fixed his suit was to stand dismissed. It is therefore impossible to hold that the property had become vested in Ram Sahai before the deposit was made by him. The sale by the widow was not void ab initio but was voidable and hold good so long as it was not avoided. The Court held that it could only be avoided if the amount which was for legal necessity was paid in Court to the credit of the transferee. We therefore agree with the Court of first instance that the property had not become vested in this particular case in Ram Sahai before the deposit of the amount due to the transferee.
6. It follows that the plaintiff Ram Sahai was not a cosharer entitled as proprietor to a share in the mahal on the date when the sale deed in question was executed. He therefore had no right to pre-empt the property.
7. We accordingly allow the appeal and setting aside the decree of the Court below restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.