1. This is a plaintiff s appeal arising out of a suit for pre-emption of a part of the property sold under a sale deed by the vendor in favour of the vendee. At the time of the sale the property transferred was not in the possession of the vendor, but was held by a third party against whom a suit had to be instituted in order to recover its possession. The vendor was not in a position to raise money and was consequently unable to sue for recovery of the property and merely transferred his entire proprietary interest to the vendee for a sum of Rs. 5,000 which included certain prior debts as well. The vendee then brought a suit and subsequently recovered the property from the third party. It was after this that the present suit for preemption was instituted by the plaintiff. The learned Subordinate Judge in a careful judgment came to the conclusion that the sale was pre-emptible and that the plaintiff should pay the market value of the property as it now stands free from all debts. On appeal the lower appellate Court has dismissed the suio holding that the sale was not pre-emptible at all. In our opinion the view taken by the lower appellate Court was quite wrong. Under the sale deed the only benefit which the vendor obtained was the receipt of Rs. 5,000 as consideration. He was not to get any more advantage if afterwards the vendee succeeded in recovering the property from the vendor. He was also not liable if the suit failed. Thus the total consideration which passed to the vendor was the sum of Rs. 5,000 neither more nor less. Ho transferred his entire ownership in the property to the vendee in exchange for this cash consideration. The transaction therefore falls within the definition of 'sale' under Section 54, T.P. Act. Under Section 11, Agra Pre-emption Act., such sale is pre-emptible.
2. The learned advocate for the defendants relies on the case of Kalyan v. Desrani : AIR1927All361 . In that case the vendor had not sold the whole of the property which was in the possession of a third party to the vendee, 'but had transferred only a part of it for cash consideration. In addition to paying the price mentioned in the deed the vendee undertook to fight out the litigation and incur all the costs in restoring the vendor's share to him free from all trouble. Thus the total consideration which the vendor received was cash plus an undertaking to restore his property to him. It was merely held by the Bench of this Court that such a transaction was not a 'sale' pure and simple, as denned in Section 54, T.P. Act. The present case is obviously distinguishable, because here the vendor got no other consideration except the cash consideration mentioned.
3. The next question is whether the vendee is entitled to any compensation for the improvement that has been effected in removing the cloud on the title. We have already pointed out that the vendee might have waited for the expiry of one year during which a suit for pre-emption could be brought. The result of the litigation launched by him has certainly improved the value of the estate. The> vendee should both on the principles of equity and on the analogy of the Mahomedan law get at least a proportionate amount of the total costs incurred by him whether in Court or out of Court, in recovering possession of the property. We do not think that he is entitled to claim the enhanced value of the property as it now stands, after the cloud has been removed, independently of the costs incurred by him. The enhanced value subsequent to the sale deed is in the nature of an acquisition to the estate and we do not see why the vendee should get the benefit of it when there was no pressing necessity for him to sue within a year, The pre-emptor is entitled to step into the shoes of the vendse and to take the whole estate and pay for all that the vendee has had to pay. The benefit of the subsequent enhancement in value would go to him. In this view of the matter we think that the vendee cm only insist upon payment to him of a proportionate amount of the actual costs incurred by him. The Courts below have gone into the present market value of the property, but they have not decided what costs the vendee had to incur in recovering the estate. We cinnot dispose of the appeal finally without a clear finding on the lastmentioned question. We accordingly remit the following issue to the Court below for a finding: What was the proportionate amount of the total costs actually incurred by the vendee in recovering the estate from the third party? The burden of proving this lies upon the vendee, and both parties will be at liberty to produce any fresh evidence which they are advised to produce. The findings should be returned within three months, if convenient. The usual ten days will be allowed for objections.