1. This is an appeal by Sheopujan Rai, defendant, arising out of a pre-emption suit. The facts of this case are complicated and it is therefore necessary to recite them in some detail.
2. On 22nd July 1925 a sale deed was executed by the vendor in favour of Sheopujan Rai. On 23rd July 1926 a suit, No. 537, was filed by Bishnath Rai to pre-empt this sale. There was another suit No. 538 filed by Tulshi to pre-empt the same transaction. The rival pre-emptors were made pro-forma defendants in each other's suits, and the two suits were connected and tried together. During the pendency of these suits Sheopujan, the vendee, obtained a document purporting to be a deed of gift from one Bindhachal, and on the basis of it took the plea that he was on the same footing as the plaintiffs and had therefore a right to defeat their claim. On 25th August the plaintiffs in both the suits applied to the Court to implead three other persons whose names had not been entered in the sale deed of 22nd August 1925, but whose names had at the instance of Sheopujan Rai been mutated in the revenue papers. Two more suits were filed to challenge the transaction effected by the deed of gift on the ground that it was really a sale transaction and was liable to pre-emption. It is not necessary to refer to these latter suits any further, inasmuch as there is now a final finding of fact that the transaction was in reality one of gift and not a sale.
3. The trial Court overruled the defence of Sheopujan, the vendee, on the ground that he had associated with himself three other purchasers, although he had concealed their names, and that the gift being in his favour alone he could not take advantage of it. Both the suits were decreed.
4. No appeal was preferred nominally in Suit No. 538 by any party; but two appeals were filed from the main decree in Suit No, 537, one of which was by Bishnath and the other by the vendee Sheo' pujan Rai.
5. Bishnath did not pay the pre-emption money in time and his claim stood dismissed. His appeal therefore failed. The lower appellate Court, however, did not allow Sheopujan to press his appeal even as against Tulsi on the ground that he had not preferred any appeal in Suit No. 538 brought by him. The lower appellate Court has also held that the vendee Sheopujan is not entitled to take advantage of the gift because he had in the sale associated with himself certain other strangers.
6. We think that the lower appellate Court was wrong in not allowing Sheopujan to press his appeal against Tulsi. Apparently his attention was not drawn to the provisions of Section 18, Agra Preemption Act. Under that section when two suits for pre-emption in respect of the same transfer are pending, they have to be consolidated and disposed of by a single decree, and it is not necessary for any party aggrieved by such decree to file more than one appeal. The two suits undoubtedly were in respect of the same transaction and had been connected. We must assume that they were consolidated, and even though separate copies of the judgment and the decree were placed on the record of the other case it must be held that there was one consolidated decree, and it was not necessary for Sheopujan to file more than one appeal. Tulsi had been impleaded by him in appeal as a pro forma respondent and it was therefore open to him to press his appeal as against Tulsi.
7. Having read the judgment of the lower appellate Court we have no doubt in our minds that it intended to find that the three other persons had in fact been associated by Sheopujan in the sale. We must therefore take the finding to be that the sale was really in favour of four persons, although the sale deed ostensibly stood in the name of one of them.
8. We do not think that it was not permissible to the Court below to record such a finding on the evidence. Sheopujan had himself admitted that these other persons had paid part of the sale consideration and that he had got their names mutated to the extent of one-fourth share each. The plaintiff was no party to that sale deed, and there was nothing to prevent him from establishing: a fraud committed by Sheopujan in this way: that he took the sale deed in his own name although there had been a secret arrangement between him and his three associates to purchase the property together, and he actually put them in possession of their respective shares.
9. If the sale had been a joint one in favour of all these four persons, the view taken by the Courts below would have been perfectly correct. Sheopujan, by taking a gift could not have improved his position when his other three associates were still strangers to the mahal and could be defeated by the plaintiff. But it is clear that each of these four persons has got a defined one-fourth share in the property purchased. In this respect their interests are distinct and separate. The explanation to Section 22, Agra Pre-emption Act, makes it quite clear that the right to claim pre-emption against several joint purchasers cannot be enforced when each purchaser has acquired a defined interest. The other purchasers have submitted to the decree and have not appealed, but Sheopujan has appealed from the whole decree. We think that Sheopujan was entitled to resist the plaintiffs' claim on the strength of his gift to the extent of his own one-fourth share, though that gift was of no avail to him qua the remaining shares.
10. The learned advocate for the plaintiff has next argued that in view of the recent enactment (Act 9 of 1929) it is not open to Sheopujan to set up this deed of gift in his favour at all. This argument involves a consideration of the question whether this amending Act is applicable to the gift in this pending action. According to the law as it stood before the Agra Pre-emption Act was passed it was quite clear under a series of rulings of this Court that a defendant who took a gift pendente lite and before the first Court's decree could successfully defeat the claim if he thereby acquired the same status as the pre-emptor. After the passing of the Agra Pre-emption Act it was first held by a Bench of this Court in Qudratunnissa Bibi v. Abdul Rashid A.I.R. 1925 All. 661 that the effect of Sections 19 and 20 of the Act was to leave the old law intact. The matter came up for consideration before a Pull Bench of this Court in Ram Saran Das v. Bhagwat Prasad : AIR1929All53 which did not agree with the view expressed by the Bench as regards the interpretation put on Section 20, but agreed that the effect of Section 19 of the Act was to maintain the old law. It had been pointed out in Qudratunnissa's case A.I.R. 1925 All. 661 that there was a great hardship on pre-emptors, and that this position of the law opened a wide-door for fraud and perjured evidence.
11. The legislature has intervened and passed Act 9 of 1929 called the Agra Pre-emption (Amended) Act of 1929. The question for our consideration is whether this Act applies to this pending case.
12. It was open to the legislature to consider that the view taken of the old Section 19 by the Full Bench of this Court was erroneous and to declare the correct law and indicate its original meaning. On the other hand the legislature could have accepted the interpretation put on that section by this Court and amended the law in order to remove the hardship. If the object were to declare the law as it has always stood we would expect that a declaratory Act with retrospective effect explaining the meaning of the legislature would be enacted. On the other hand if the law is to be altered and the hardship removed one would expect the Act to be amended.
13. The preamble to this Act states:
Whereas it is expedient further to amend the Agra Pre-emption Act, 1922... it is hereby enacted as follows:
14. There is nothing in the preamble to indicate that the legislature is declaring the law as it has always stood and that its object is merely to remove a doubt and explain its meaning.
15. Certain words in Section 20 have been removed from one place in the section and inserted at another place. This is obviously to meet a technical objection that had bean previously raised. But the most important one is that a new proviso to Section 19 has been added in the following words:
Provided that no voluntary transfer made in favour of the vendee after the institution of a suit for pre-emption shall defeat any right which the plaintiff had at the date of such institution.
16. This proviso is in the nature of an exception to the section and not by any means an explanation of it. Prima facie therefore there is no reason to suppose that the Act is a mere declaratory Act with retrospective effect. We may point out that in the case of other Acts which stood on a much stronger footing it has been held that there was no presumption of retrospectiveness. Act 6 of 1913 was described as an Act to declare the rights of Mussalmans to make settlement, and the preamble stated:
Whereas doubts have arisen regarding the validity of wakfs created by persons professing the Mussalman faith, etc., and whereas it is expedient to remove such doubts.
17. Nevertheless their Lordships of the Privy Council held in Solehman Quadir v. Salim-Ullah Bahadur A.I.R. 1922 P. C, 107 that in view of the phraseology used in the body of the Act it was not retrospective. We may also mention that with regard to Act 27 of 1926, in which the preamble stated:
whereas it is expedient to explain certain provisions of the Transfer of Property Act etc.' a majority of the Full Bench in Girja Nandan Kalwar v. Hanuman Das Marwari : AIR1927All1 held that in view of the previous legislation the Act not retrospective. This view was also accepted by the Calcutta High Court in Napra v. Sajer Pramanik : AIR1927Cal763 . The legislature then intervened to clarify the law.
18. The Act before us is nothing like either of these two enactments and there is absolutely nothing either in the body of the Act, its title, preamble, or marginal notes which would indicate that it was intended to have a retrospective effect. We may add that in this Act there are amendments of some other sections also with which we are not at present concerned.
19. It is well settled that a new enactment passed during the pendency of an action has not a retrospective effect unless either it expressly says so or it lays down a mere rule of procedure which it is the duty of Courts to follow. On the other hand, if the amendment relates to substantive rights, as distinct from the adjective law, it cannot effect vested rights, and therefore would not be applicable to pending actions. In the case of the Colonial Sugar Refining Co. Ltd.v. Irving  A.C. 369 their Lordships of the Privy Council held that a right of appeal to a superior tribunal was a substantive right quite different from procedure and could not be taken away by a subsequent enactment, even though no occasion for the exercise of that right had occurred because the original suit was still pending. This view was of course accepted by a Full Bench of this Court in the case of Ram Singh v. Shanhar Dayal : AIR1928All437 .
20. It cannot be disputed that a right of pre-emption is a substantive right and is not a mere matter of procedure, even though that right has been conferred by specific provisions of this Act. On the view of the Full Bench which is binding upon us the defendant under Section 19 has a right to defeat the plaintiffs' claim for pre-emption if he can acquire the same status as the plaintiffs during the pendency of the suit. If a right to appeal is not a mere matter of procedure, a right to defeat the plaintiffs' claim in this way also must be a substantive right. This right was acquired by the defendant on the date when he took the deed of gift, which was before the first Court disposed of the case. It therefore seems to us that right cannot be taken away by the new enactment which came into force only during the pendency of this second appeal.
21. The result therefore is that we allow the appeal in part, and modifying the decree of the Courts below decree the plains tiffs, claim with regard to three-fourths share in the property covered by the sale deed dated 22nd July 1925 on payment of three-fourths of the sale consideration within six weeks from the date of the preparation of this Court's decree. His claim with regard to the one-fourth share of Sheopujan will stand dismissed. If there is default in the payment of the pre-emption money within the time fixed the plaintiffs, claim with regard to the three-fourth share also will stand dismissed. As regards costs: in view of the fact that the deed was taken during the pendency of the suit and the defendant has been guilty of fraudulent conduct as well as because the appeal has substantially failed, we direct that the plaintiff should have his costs from the defendant in all Courts including in this court fees on the higher scale, and the defendant shall bear his own costs throughout.