1. These appeals arise out of two suits for pre-emption brought in the following circumstances: On the 1st of May 1923. Mt. Abharaji joined with one Ajudhia, her reversioner, in executing a sale-deed in favour of the Defendants Nos. 2 to 4 and the predecessors of the Defendants Nos, 3 to 7. The consideration shown in the sale-deed is a sum of Rs. 100. A suit to pre-empt the sale was brought by one Deo Narain Singh who alleged that the real consideration was only Rs. 25. He sought pre-emption of the sale on payment of this sum.
2. After this suit had been instituted the defendant-vendees obtained from Mt. Abharaji alone a deed which purported to be a deed of gift, the value of the property being expressed to be Rs. 400. The plaintiff Deo Narain Singh instituted another suit to challenge this transaction. He alleged, in the first place, that it was a fictitious transaction entered into for the purpose of defeating his right of pre emption in the other suit. He claimed in the alternative that, if the transaction was areal transaction, it was a transaction of sale and not of gift.
3. The trial Court found that the transaction was a gift and not a sale and, on this finding it dismissed the suit for preemption of the sale. This finding has been confirmed in appeal by the lower appellate Court. The point which is raised here in second appeal in both cases is that the plaintiff's right to claim preemption had not been defeated by reason of the transaction which was found by both Courts to be a gift, and the ground taken is that the interest which was transferred by the deed of gift was not an indefeasible interest. In this connexion Section 20 of the Pre-emption Act is referred to.
4. The question then is whether by reason of this deed of gift, the plaintiff, at the date on which the decree in the suit for pre-emption came to be passed had, a subsisting right of pre-emption (S.19). This right to pre-empt, as at the date of the sale and the date of the suit, was based upon his status as a co-sharer. That right, however, would disappear if, before the decree was passed, the vendees could set up an equal status as co-sharers in virtue of the interest acquired by them tinder the gift made in their favour by Mt. Abharaji.
5. The argument is that the vendees are not entitled to claim as co-sharers under the gift because the interest they have taken is not indefeasible. It certainly is not an indefeasible interest in the ordinary acceptation of that term, and we are not prepared to hold that the term, as used in Section 20 of the Act has the restricted meaning sought to be attributed to it in argument, namely an interest which cannot be defeated by a suit for pre-emption. There appears to be nothing in the language of the Act to indicate that the word 'indefeasible' is used in this limited sense. It is true that this word is not to be found in Section 19, but if a subsisting right of pre-emption can be defeated before decree by a vendee becoming a co-sharer and thus raising himself to the same level as the pre-emptor there seems to be no reason why the process by which the vendee attains this position should be different in the cases provided for by Sections 19 and 20 respectively. If Section 20 is held to apply to transactions prior to the date of suit why should it be necessary for a vendee to acquire under this section an indefeasible' interest, and not under Section 19? It is the acquisition of the indefeasible interest which bars the suit under Section 20. Could the acquisition of a lesser interest before the date of the decree prevent the passing of a decree because a subsisting, right of pre-emption had been lost thereby? There seems to be no good reason for such a distinction. It would seem therefore, that the Act contemplates that a vendee cannot acquire the status of a co-sharer unless the interest he acquires before the date of the decree is 'indefeasible.' In the present case the vendees cannot make themselves out to be co-sharers for they are claiming under a transaction of gift carried out by a Hindu widow, a transaction which may be defeated by the suit of the reversioner Ajudhia who, in the course of the present suit, has declared his intention not to be bound by the widow's act.
6. And it is further to be observed that, even if it be assumed that the question as to whether this gift is binding upon the reversioner could be tried in the suits which were before the lower Courts, there has been no decision that the gift is binding. As matters stand, therefore, the vendees have no indefeasible interest which entitles them to say that they are co-sharers equally with the plaintiff with as good a right to retain the property sold to them as the plaintiff has to take it.
7. The question is certainly not free from difficulty. It may be that the intention of the Legislature was that the word 'indefeasible' should be used in the narrower sense suggested above, but all we can say is that, if such was the intention, it is not carried out in the language of the Act as it stands. We may mention that in the course of the argument we were referred to a case decided by a Bench of this Court under Order 41, Rule 11 of the Code of Civil Procedure: Naurang Rai v. Ram Sumer Rai : AIR1926All680 . That was a case in which a widow had made a transfer. A suit for pre-emption was brought during her lifetime, and it was held that the interest acquired from her would, while she remained alive, at any rate entitle the transferee to defeat a claim for pre-emption.
8. In the case with which we are dealing here the widow died while the suit for pre-emption was pending and the reversioner has succeeded to the estate.
9. The result, therefore, is that S.A. No. 1722 of 1925 must be allowed. It arises out of the-suit brought to pre-empt the sale. We note here that the Court of first instance found that the consideration for the sale was a sum of Rs. 100 and not Rs. 25 as pleaded by the plaintiff. The lower appellate Court has not come to any finding on this point, but the evidence is clearly in favour of the vendees and moreover the plaint is not pressed before us. We, therefore, allow S.A. No. 1722 of 1925 and give the plaintiff a decree for pre-emption on payment into Court of a sum of Rs. 100 within six weeks from the date of this Court's decree. If the money is deposited within the time limited the plaintiff's claim will be decree with costs in all Courts including in this Court fees on the higher scale. If the plaintiff fails to deposit the money within the time allowed then his suit will stand dismissed with costs in all Courts including in this Court fees on the higher scale.
10. As to S.A. No. 1723 of 1925, on the finding of the Court below that the transaction was a gift, it follows that it was not pre-emptible, and although we have found in the plaintiff's favour that the deed of gift does not confer an indefeasible interest upon the donees, nevertheless this appeal must stand dismissed, but without any order as to costs.