1. There is nothing in the conduct of the plaintiff during the partition proceedings which can amount to estoppel or to waiver of the exercise of his right of pre-emption. The decree of the Lower Appellate Court is set aside, and the case remanded to the Lower Appellate Court for disposal on the merits. Costs to abide the result.
2. I am of the same opinion as my learned brother Oldfield, and I wish only to refer to two cases which were cited by the learned Counsel for the respondent in support of his client. One of these cases is Motee Sah v. Goklee N.W.P.S.D.A. Rep. 1861 p. 506. I do not regard that case as by any means on all fours with the present, and I wish to say that I do not accept the rule of law as to acquiescence or estoppel which was there laid down, and from which I have already expressed my dissent upon a former occasion. The other case cited by Mr. Amir-ud-din was that of Bhairon Singh v. Lalman Weekly Notes 1884 p. 216 and the passage in that case to which the learned Counsel referred was as follows:
The single question for our determination is whether, after having notice of the intended sale to the respondent-vendee, the appellant's conduct was such as to warrant the inference that he, either expressly or impliedly acquiesced in or relinquished his claim to pre-emption. It is found by the Judge that he made no communication whatever to the vendor after he became aware that a sale was being negotiated, nor did he make it known to him that, while he stood upon his pre-emptive right, he declined to pay the Rs. 4,000, because it was not the condition agreed on between the vendor and the vendee.
3. The rule laid down in that case was, that the pre-emptor may be estopped by conduct amounting to an admission before the sale occurs which is the basis of the exercise of the pre-emptive right. The report does not, of course, enter fully into the peculiar circumstances of the case; but if I thought that the decision bore the interpretation placed upon it by Mr. Amir-ud-din, I should be unable to concur in it,--an interpretation which could not be reconciled with the ruling of the same learned Judge in the case of Subhagi v. Muhammad Ishak I.L.R. 6 All. 463. I agree in the order passed by my learned brother Oldfield.