John Stanley, C.J. and Rustomjee, J.
1. The member of the family of Sheikh Nazir-ud-din were the co-sharers in a six pie share in patti Nanku Singh, mauza Gauhari. In the years 1903 and 1904 they sold their shares to the defendant, Abdul Hamid, in seven different sale transactions. These sales were carried out by seven sale-deeds. To two of these sale-deeds alone were the defendants respondents, Rashid-ud-din and Mukhtar Ahmad, parties. These co-plaintiffs owned shares in the patti which were not conveyed by them to Abdul Hamid, and they continued to hold these shares. The suit out of which this appeal has arisen was instituted on the 24th of September 1904, by the plaintiff appellant, Liakat Husain, who is also a co-sharer in the village, to pre-empt the sales so carried out in favour of Abdul Hamid who was a stranger to the coparcenary body. Before, however, the suit was instituted, namely, on the 16th of September 1904, Abdul Hamid sold and conveyed all the property he had so purchased to the defendants Respondents. The alleged in his plaint that this sale to the defendants respondents, Rashid-ud-din and Mukhtar Ahmad, was fictitious, collusive and without consideration, and was made in order to defeat plaintiff's right of pre-emption.
2. The Court of first instance decreed the plaintiff's claim, but upon appeal the learned District Judge reversed the decision of the Court below and dismissed the plaintiff's suit. The lower appellate Court agreeing with the Court below found that the evidence failed to show that the sale carried out in favour of the defendants respondents was not genuine.
3. The only question for determination by us is whether the defendants respondents by joining in the sale of the shares comprised in two of the sale deeds to which they were parties thereby precluded themselves from purchasing the property from Abdul Hamid. The argument advanced on behalf of the plaintiff appellant is that Rashid-ud-din and Mukhtar Ahmad having concurred in a sale in favour of Abdul Hamid, a stranger, forfeited their right to pre-empt that sale and in fact could not enter into competition with the plaintiff in the matter of pre-emption. As regards the shares comprised in the five sale-deeds to which Rashid-ud-din and Mukhtar Ahmad wore no parties, it is clear that they did not forfeit their right of pre-emption: they stand on the same footing, as regards pre-emption, as the plaintiff. This is admitted by the learned advocate for the plaintiff.
4. As regards, however, the shares comprised in the sale-deeds to which they were parties, Mr. Sundar Lal presses the argument that the defendants respondents having joined in the sale of these shares to a stranger must be treated themselves as strangers to the coparcenary body and cannot compete with the plaintiff in the matter of pre-emption. We think that there is no force in this argument. Rashid-ud-din and Mukhtar Ahmad are not claiming pre-emption. What happened was that before the institution of the plaintiff's suit, they, being co-sharers in. the village, purchased from Abdul Hamid all the property which had been conveyed to him. The property found its way back into the hands of co-sharers before the institution of pre-emption proceedings. The object of preemption is to keep strangers out of the coparcenary body of a village and so maintain the unity of the body. If before pre-emption proceedings are instituted, the property has found its way into the hands of co-sharers, there is no reason for allowing pre-emption, which is by the way a very weak right. The principle governing a case of the kind is thus stated in the judgment in Bhagwan Das v. Mohan Lal (1903) I.L.R., 25 All., 421 to which one of us was a party, namely: 'Where a share has in violation of the provisions of the wajib-ul-arz been sold to a stranger, if before the institution of a suit for pre-emption that share has found its way into the hands of a co-sharer whose rights of pre-emption as such arc equal to those of the plaintiffs in a suit for pre-emption subsequently instituted then the pre-emptor's suit will fail. The reason of the rule seems to be that as the object and cause of the institution of preemptive rights is the desire to keep strangers excluded from the coparcenary body, the reason and object cannot justify a preemptive suit by one co-sharer against another to compel the latter to surrender a share over which his pre-emptive rights are on the same level as those of the plaintiffs.' We are unable to hold that the fact that the defendants respondents Rashid-ud-din and Mukhtar Ahmad could not have enforced a right of pre-emption as against Abdul Hamid so far as regards the shares comprised in the two sale-deeds to which they were parties, precludes them from setting up the revesting of those shares in themselves by a genuine sale before the date of the suit as a complete answer to the plaintiff's claim. We think that the decision at which the learned District Judge arrived is correct and we dismiss the appeal with costs.