1. This is a plaintiff's appeal in a pre-emption suit. On 2nd June 1937, Debi Prasad, a cosharer in two villages, Pargaspur and Bhagwanpur, situated in Azamgarh District, executed a sale of his rights and interests in the said two villages in favour of Ramdhari Singh for an ostensible consideration of Rs. 2000. Soon after the execution of the sale, the vendor Debi Prasad died leaving a son, Ram Sunder Singh, and within a few months of the sale on 24th January 1938, Santa Singh who is a brother of Debi Prasad raised, an action in the Court of the Munsif of Azamgarh for pre-emption of the property, the subject-matter of the said sale, against the purchaser, Ramdhari Singh. In this action the son of Debi Prasad, namely, Ram Sunder Singh, was made a pro forma defendant, namely, defendant 2. Two questions arose in this case. One was whether the plaintiff Santa Singh was entitled to pre-emption the property or not? The second question was what was the real consideration of the sale? The consideration of the sale consisted of six items. With regard to three of them there was no dispute and with regard to two others there was no controversy because they were the sums of money which were left with the vendee to pay to the creditors of the vendors and which admittedly had not been paid. The controversy, therefore, on the question of consideration rested on the item of Rs. 363 which was said to have been left for the payment of a promissory note dated 1st January 1934, to Ram Sunder Ahir. The trial Court found that the plaintiff was entitled to pre-empt and it further came to the conclusion that this right could be exercised on payment of Rs. 761 within a month from the date of the judgment. The vendee, Ramdhari Singh, made an appeal to the District Judge of Azamgarh and the learned Judge came to the conclusion that the plaintiff was not entitled to pre-emption the property. On the question of consideration he affirmed the judgment of the trial Court. Both Courts, therefore, are at one that one item of the sale consideration, namely, the sum of Rs. 363, which was left for payment to Ram Sunder Ahir is fictitious and this part of the case goes out of controversy.
2. The plaintiff has made this second appeal and the only question for our consideration is whether the plaintiff in the events that have happened is entitled to pre-empt or not. The sale which is the subject-matter of pre-emption is dated 2nd June 1937, and related to two villages Pargaspur and Bhagwanpur. Khewat Nos. l and 8 of the former village and Khewat Nos. 1 and 7 of the second village were the subject-matter of the sale. In the sale-deed it is recited that the property sold is owned and possessed by the vendor without any co-parcener separately. In the sale deed the warranty of title is given and it is further recited that in case of any difficulty arising in the warranty the vendor personally and his property will be liable to the vendee. The consideration of the sale deed is also such that excepting with regard to one item it concerns Debi Prasad personally. One item, however, was such in which his brother Shyam Behari was also interested. The sale deed does not recite that the vendor was executing the sale as manager of the joint Hindu family, nor was there any legal necessity or family benefit recited in the sale. The controversy which arose in the case was whether the plaintiff Santa Singh was or was not bound by the sale which was made by Debi Prasad on 2nd June 1937. On behalf of Ramdhari Singh it was contended that the plaintiff Santa Singh was one of the three brothers Debi Prasad, Shyam Behari and Santa Singh, that Debi Prasad was the manager of the family and that the sale in dispute was made by Debi Prasad as manager of the joint Hindu family and irrespective of the fact whether the sale was for legal necessity or family benefit, the plaintiff being a coparcener was not entitled to bring a suit for pre-emption because the sale must be taken to have been effected on his behalf also by the manager. On behalf of the plaintiff, on the other hand, it was contended that a partition had taken place between the three brothers and they were all separate and, secondly, the plaintiff was not bound by that sale. Both the Courts have taken opposite view on the question of separation of the three brothers. The trial Court found that separation was proved. The Court of appeal came-to the 6onclusion that the partition had not been proved. Even if it be assumed that the partition as alleged had not been proved this finding does not dispose of the case because there are certain admitted facts on which the plaintiff is entitled to a decree for pre-emption in this suit. In a way we have noticed what the recitals in the sale deed are. Those recitals do not proceed on the assumption that Debi Prasad while making the sale acted either, as a manager of the joint Hindu family or as a coparcener. But it is a matter of common knowledge that very often even members of joint Hindu families execute sales of their own shares. Now, there is evidence in this case and the trial Court has also found that in both the villages Pargaspur and Bhagwanpur all the three brothers were recorded as co-sharers and what Debi Prasad did by this sale was that he conveyed his own share leaving the shares of his brothers intact in the said villages. We must, therefore, take it that the sale was made by Debi Prasad of his own share, and alleging it to be his own share, in the property that he sold. This sale took place on 2nd June 1937. Then six months after on 24th January 1938, the plaintiff Santa Singh, second brother of Debi Prasad, raised this action and in the plaint he clearly recited that the brothers were separate and further that he intended to exercise his right of preemption. If these two transactions are taken together, namely, the recitals in the sale of 2nd June 1937, and the allegations' in the plaint of January 1938, they go a long way in establishing that a disruption had taken place in the status of these two brothers. It is well settled that in order to bring a disruption in status the mere expression of intention is sufficient and it is not necessary that there should be any partition by metes and bounds. 'We are aware that sometimes sham declarations are made by co-parceners for some ulterior motives and it is always open to a Court to find that there was no genuine disruption of status and the declaration was for ulterior motives. But there is no evidence upon which it is possible for the Court to come to the conclusion that in this particular case the intention expressed both by Debi Prasad and by the plaintiff Santa Singh was not a genuine one. At any rate, there is no finding on this point and as the matter is at large we can consider-and come to our own conclusion. It seems to us that on the facts of this case it cannot be held that Debi Prasad made the sale of any family property or made the sale as the manager of the joint Hindu family and that being so, it being admitted that the plaintiff Santa Singh is a coparcener in both these villages and his property is still intact in these two villages, he is entitled to pre-emption the property which was conveyed by the sale of 1937.
3. The result is that we allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. But, in the circumstances of the case, we direct the parties to bear their own costs throughout. It. is stated by Mr. Janki Prasad that the sale consideration as found by the Courts below minus the costs awarded by the trial Court was deposited by his client within the time allowed by the trial Court. As we have directed the parties to bear their own costs in all Courts, Mr. Janki Prasad's client will have to deposit the amount of costs that he had deducted from the sale consideration. For this we allow him one month's time.