1. This appeal arises out of a suit for pre-emption which was tried with another suit for the same purpose in the following circumstances : Bans Gopal sold to Chet Narain, the respondent No. 1 in this Court, certain amount of property on 24th of August 1928. Thereupon, two suits were filed to pre-empt the said property. Kamta Prasad and his son Chandi Prasad filed suit No. 435 of 1929 and Beni Madho, whose legal representative is one of the respondents in this appeal, filed suit No. 436 of 1929 also for pre-emption. The suits were heard together. The learned Munsif held that the total consideration was Rs. 1,500 and that the plaintiffs in both the suits were of equal status and were entitled to pre-empt, as against Chet Narain. On the question whether Kamta Prasad and Chandi Prasad were entitled to be treated as two pre-emptors or as only one pre-emptor for the purpose of division of property among the pre-emptors, the counsel for the plaintiffs in suit No. 435 stated that
as Kamta Prasad and Chandi Prasad formed a joint Hindu family, they were entitled to one-halt of the property.
2. The Court accordingly directed that both the suits should be decreed each for half a share. It gave the plaintiffs of each suit thirty days time to deposit one half of the purchase money and directed that in case one party failed to deposit his share of the purchase money, the other party would be entitled to deposit the same within thirty days of the expiry of the time originally granted. The plaintiffs of both the suits filed appeals, and there was a cross-objection filed by the plaintiff in at least one of the appeals. Kamta Prasad and his son Chandi Prasad's appeal was numbered as 202 of 1930 and Beni Madho's appeal was numbered as 240 of 1930. Kamta Prasad and his son Chandi Prasad contended in their appeal that as between them father and son they were entitled to pre-empt two-thirds of the property and that the statement of the pleader did not bind them. They also impugned the finding that the total consideration was Rs. 1,500 as found by the Court of first instance. Beni Madho's appeal was dismissed for default of prosecution. The appeal of Kamta Prasad and Chandi Prasad, who are the appellants before this Court, was also dismissed on the merits. It was held that the plaintiffs were bound by the statement of their pleader as to the amount of share to be pre-empted by them and that the sale consideration was Rs. 1,500. In the result the appeal and the plaintiffs' cross-objection were both dismissed.
3. Kamta Prasad and his son Chandi Prasad have appealed and they contend that as between them they were entitled to pre-empt two-thirds of the property and not merely one-half. They further contend that the lower appellate Court should have extended the time to pay the purchase money. On behalf of the respondent Chet Narain it has been contended that the appellants, not having made any deposit of the purchase money so far, their suit stood dismissed and the appeal is not maintainable. A preliminary point, therefore, arises for determination and it is this. Whether in the circumstances of this case the appeal should not be heard? The learned Counsel for the appellant has cited two cases which are directly in point, namely Jhandi Lal v. Shiam Lal A.I.R. 1920 All. 134 and Khurshedunnissa v. Alimunnissa (1912) 17 I.C. 868. The case in Jhandi Lal v. Shiam Lal (1912) 17 I.C. 868 followed the case in Khurshedunnissa v. Alimunnissa (1912) 17 I.C. 868. Both the caaea laid down that where a plaintiff pre-emptor appeals and impugns the correctness of the price found by the lower Court, his appeal is not liable to be dismissed on the ground that he has not complied with the decree of the Court of first instance by depositing the price.
4. On behalf of the respondent 1, three cases have been cited. The first case is Jaggar Nath Pande v. Johhu Tiwari (1896) 18 All. 223, being a decision of three learned Judges of this Court. This case arose out of execution proceedings, and the learned Judges were not called upon to decide the question that I have to decide in this case. Indeed, some remarks made in this case support the decision in the two cases cited on behalf of the appellants. The remarks would be found at p. 226. They are as follows:
Now there is no doubt that a plaintiS who has obtained a decree under Section 214, Civil P.C., can appeal within the period prescribed by the Limitation Act 1877, for his appeal, whether or not he has made the payment on or before the day fixed, and on his appeal the appellate Court, if it sees fit so to do, may extend the time within which the pre-emptive price is to be paid and fix a day itself.
5. What had happened in the case before the learned Judges was that the plaintiff never deposited the money and there was no extension of time by the Court of appeal. The appeal itself had been filed not by the plaintiff but by the defendant. Yet the plaintiff having deposited the money after the period fixed had expired, sought execution of the decree on payment and his application was allowed by the Court below. The High Court allowed the appeal and dismissed his application for execution. It will be noticed that although this was a Full Bench case decided so far back as in 1896, it was never cited as an authority before the Benches which decided the cases in Jhandi Lal v. Shiam Lal A.I.R. 1920 All. 134 and Khurshedunnissa v. Alimunnissa (1912) 17 I.C. 868. The next case relied on by the respondent's counsel is Hidey Narain v. Alam Singh A.I.R. 1918 All, 13. The learned Judges who decided the case were the same as decided the case of Khurshedunnissa v. Alimunnissa (1912) 17 I.C. 868, relied on by the appellant's counsel. This case in 16 Allahabad Law Journal was again a case that arose out of execution of decree and all that was held was that a late payment by the plaintiff of the purchase money did not entitle him to execute the decree. The last case was decided by a Bench of which I was a member and is that of Umrao Singh v. Kanwal : AIR1933All113 . There were two appeals before this Court. One arose out of the suit and the other from execution proceedings. In that case what had happened was that there was no extension of time by the lower appellate Court, and yet the plaintiff sought to recover possession of the property on payment made beyond the time fixed for payment by the Court of first instance. This case again is not relevant. What I have to decide is whether a plaintiff, who does not accept the correctness of the finding as to the pre-emptive price and has not paid it, is bound to pay the decretal amount in accordance with the terms of the first Court as a condition precedent to the hearing of this appeal. That question must be answered in the negative as it was answered in the two cases cited on behalf of the appellants.
6. On the merits, the question is whether the two plaintiffs, father and son, are to be treated as two claimants for pre-emption, or whether as one because the family is joint. As a question connected with this I have to find whether the statement of the pleader recorded at p. 42C of the record amounted merely to an admission on a point of law which is not binding on the plaintiff or whether it amounted to a request to the Court that whatever might be legal title of the plaintiffs, they would be satisfied if a decree was made for one half of the property in favour of the two plaintiffs. I have read the original statement in vernacular, and my opinion clearly is that it was a mere statement of the opinion of the learned Counsel for the father and son as to the share they were in law entitled to. If was the statement meant to be a request to the Court to confine the decree in plaintiffs' favour to a half share, it would not have been necessary for the plaintiffs' pleader to give his reasons for the request. Evidently the learned Munsif was not certain as to how much the plaintiffs were entitled to, and the plaintiffs' pleader conceded that the two plaintiffs being father and son and being members of the joint Hindu family, were entitiled to one half only being treated as one claimant. The plaintiffs did not accept this position and impugned the statement of the pleader in their appeal to the lower appellate Court. If it had been a request of the plaintiffs' pleader, there would have been no question of dissatitction with the statement. The language of the pleader indicates that what he stated was an expression of his opinion. It is none the less an expression of the pleader's opinion, although the Munsif thought that it relieved him from the necessity of deciding the point. I hold that the plaintiffs are not bound by the sbatement of their pleader.
7. Now the question is whether the plaintiffs are entitled to pre-empt one half or two-thirds. The claim for pre-emption is based on the Agra Pre-emption Act of 1922. The right to pre-empt is given to co-sharer (Section 12). By Section 4, Clause (1), a co sharer means any person other than a petty proprietor entitled as proprietor to any share or part in a mahal or village whether his name is or is not recorded in the register of proprietors. Every member of a joint Hindu family owning property is as much an owner of the property as any other member of the same, even though the latter be the father of the family. A joint Hindu family consists of several owners so far as the outside world is concerned. The fact that they form a joint Hindu family, indicates only this that for certain purposes they prefer to live together and enjoy property together. In matters of representation very often the head of the family represents not only himself but the rest of the family. But there is nothing in the constitution of a Hindu joint family which enables one to say that they are not owners of pro-perty. In this view, each member of a joint Hindu family would be a co-sharer within the meaning of Section 4 of the Agra Pre-emption Act. It is important to notice that the Agra Pre-emption Act does not mention anywhere a joint Hindu family and gives no indication that the people who form a joint Hindu family, are to be treated as a single person for the purposes of pre-emption. In this view, there is nothing to bar the right of the present appellants to claim two-thirds of the property where one more person has claimed the right of pre emption. As between the two appellants before me they claimed the whole property for themselves. If by reason of the fact that there is a third claimant to the property, their share is to be cut down, there is no equity in favour of the third person which would compel us to hold that the two plaintiffs appellants in this case are to be treated as one person and as not two persons. The point is really so simple that it does not require any further consideration. 1 hold that the appellants are entitled to pre-empt two-thirds of the property sold as against the vendee and Beni Madho or the latter's representative in interest, respondent No. 3.
8. The result is that the appeal succeeds and I direct that on condition of payment of Rs. 1,000, being two-thirds of the entire consideration money found by the Courts below, the appellants' claim do stand decreed for two-thirds of the property claimed by them. I allow sixtydays' for payment. In case of failure to pay, the suit of the appellants will stand dismissed with proportionate costs throughout. The appellants having succeeded in respect of two-thirds share, the claim of Beni Madho, who is now represented by the respondent No. 3, is reduced to a third share in the property. The respondent No. 1 will pay his own costs throughout, except in the case of the failure of the appellants to pay the sum of Rs. 1,000 within the time allowed, in which case, as already directed, the respondent No 1 will have his costs throughout. The affidavit, which has been filed on behalf of the respondent No. 1 indicates that Beni Madho has already deposited the sum of Rs. 750 within the period limited by the decree of the Court of first instance. In case it turns out that he has made no deposit, the appellants will be entitled to pay the sum of Rs. 500 over and above the sum of Rs. 1,000 mentioned above within sixty days of this date. In case of their failure to make this additional deposit, the whole suit will stand dismissed with costs.