Iqbal Ahmad, J.
1. The decision of this appeal depends on the answer to the questions whether or not it is open to an ostensible vendee to plead in a pre-emption suit that he was a mere benamidar for a co-sharer against whom the plaintiff had no right of pre-emption, and whether on proof of the fact that the real purchaser was such a co-sharer the suit for pre-emption must fail? These questions have been answered in the affirmative by this Court in S.A. No. 1173 of 1908 and in Harsaran v. Mt. Dilraji (1910) 8 I.C. 527. In these cases it was found that the vendee mentioned in the sale deed was a mere benamidar for a co-sharer and the suits for pre-emption were dismissed on the ground that the real purchaser was a co-sharer against whom the plaintiff had not the right of pre-emption. But a diametrically opposite view was expressed by the Oudh Chief Court in Manzur Ali v. Sultan (1927) 14 A.I.R. Oudh. 509 It was held in that case that the Court should only look as to who is
the transferee according to proper construction of the deed and the suit for pre-emption would lie against such transferee.
2. That benami transactions are common in this country cannot be disputed and it is well settled that it is always open to a party to a suit to plead and prove that an ostensible vendee under a sale deed is not the real purchaser and is a benamidar for some third person. That being so, it is open to a benamidar to plead and prove that ho is not the real transferee under the deed and that the transferee is some one other than him. No question of estoppel arises in such a case. I therefore hold that it is open to a benamidar to resist a suit for pre-emption on the plea that he is a mere benamidar and that the real purchaser is a co-sharer against whom the plaintiff has not a preferential right of preemption. In the case before me, it has been found by both the Courts below that Mt. Rukmani, the ostensible purchaser under the sale deed, was a mere benamidar for her husband, Parmanand, who is a co-sharer in the village and against whom the plaintiff has no right of pre-emption. On this linding, thr Courts below were right in dismissing thr plaintiff's suit, and accordingly I dismiss this appeal. Having regard to the fact that the giving rise to the present appeal was occasioned because of the benami purchase made in the name of Mt. Rukmani, the trial Court directed the defendants to pay the costs of the plaintiff. For similar reason, I direct the parties to pay their own costs of this appeal. The order passed by the lower Appellate Court as regards the costs of that Court will stand. Leave to appeal undor the Letters Patent is granted.