1. This is a pre-emption second appeal. The plaintiff is the appellant and the case has to be decided in accordance with the provisions of the Muhammedan law of pre-emption.
2. The suit was a suit to pre-empt the sale of a certain fractional share of a house which was carried out by a document, dated the 20th October, 1921.
3. The plaintiff brought his suit for preemption on the 24th April, 1922.
4. While that suit was pending the purchaser of the property, on the 15th July, 1922, took a transfer of a portion of the premises from one Ali Raza.
5. Before the suit for pre-emption was decided Ali Raza on the 21st Nov. 1922, filed a suit against his transferee for the avoidance of the deed of transfer on the ground of fraud and undue influence.
6. Before this latter suit was decided the pre-emption suit of the plaintiff-appellant was decreed on the 6th of December, 1922 by the Court of first instance.
7. The finding of the Munsif was that the transfer of the 15th July, 1922, in favour of the vendee had not been proved.
8. The defendant appealed to the District Judge and when the case came up there the appeal was allowed and the plaintiff's suit was dismissed in its entirety.
9. The learned Judge of the lower appellate Court took notice of the fact that after the pre-emption suit had been decided by the Munsif the suit brought by Ali Raza for avoidance of the transfer was withdrawn. The learned Judge therefore, being of opinion that the result of the withdrawal was the failure of the suit and consequently the establishment of the transfer which Ali Raza had previously executed in favour of the purchaser in the pre-emption suit, held that on the facts as they stood it was established that the purchaser was at the time of the first Court's decree a co-sharer in the property. He held, therefore, that the plaintiff had no better right of pre-emption than the purchaser and so he dismissed the suit.
10. It has been argued before us in appeal that the learned Judge of the Court below was in error in coming to this decision. The point taken is that he was not entitled to take notice of anything which happened subsequent to the date of the decree of the Court of first instance so as to arrive at a decision that the transfer executed by Ali Brza in favour of the purchaser was a valid transfer.
11. We do not agree with this. It seems to us that the learned Judge was perfectly entitled to take the course he did. He had before him the fact that the transfer which had been challenged by the transferor had become established by reason of the withdrawal of the suit which was brought for the purposa of challenging it, and his decision on this point obviously must relate back to the date of the transfer, namely, the 15th July 1922. We think, therefore, that he was entitled to hold that at the time of the decree of the Court of first instance in this compromise suit the vendee was a co-sharer in the premises, a portion of which had been sold and was sought to be pre-empted.
12. On this part of the case therefore we think the argument of the appellant must fail.
13. Another point raised here with reference to the transfer is this, namely that it is argued that transfer made by Ali Baza being the transfer of an undivided share the doctrine of 'Mushaa' applies and the transfer is invalid. As to this all we can say is that no such point was raised in the Court below and we have before us no materials which would enable us to decide the question if we allow it to be raised.
14. There remains only a third point which is a pure point of law and which is raised in the 6th ground of the memorandum of appeal. Dr. Wali-ul-lah for the appellant contends that in any case the court was wrong in dismissing the pre-emption suit in its entirety. He cites certain rulings of this Court and also of the Bombay High Court in this connection. It certainly has been held by this Court in Amir Hasan v. Bahim Bakhsh (1897) 19 All. 466, and Abdullah v. Amanatullah (1899) 21 All. 292, that where two co-sharers in a property have equal rights of pre-emption these rights ought to be given effect to, and the rulings of this Court have been accepted by a Pull Bench of the Bombay High Court in the case of Vithaldas Kaihandas Soni v. Jamiet Ram Maneklal (1920) 44 Bom. 887. The Calcutta High Court, it is true, has taken another view, but we are bound to follow the decisions of our own Court.
15. If we give effect, therefore, to the law as laid down in the rulings which have been referred to it seems to us that in any case the plaintiff here was entitled to a decree for pre-emption of half the property transferred.
16. It has been argued before us and it certainly seems to be the case that this question was not raised in the lower appellate Court. Obviously it could not have been raised in the Court of first instance. However we have to bear in mind that the appellant here was respondent in the Court below and there was no occasion for him to file any written petition of objection against the first Court's decree. We think indeed that the point ought to have been raised in the lower Court and the respondent ought to have supported the decree of the Court of first instance so far as it was possible for him to do. We do not know really whether this question was raised or not. All that can be said is that we do not find any indication of it in the judgment. When all is said and done, however, the question is a pure matter of law and there will be no harm done to any party by its being raised in the stage of second appeal. We therefore allow this appeal in part for the reasons already given and reversing the decree of the Court below direct that a decree for pre-emption of half the property tr nsferred by the document of the 20th October, 1921 be passed in favour of the plaintiff-appellant on payment of Rs. 15. We allow the appellant two months to deposit this money in the Court of first instance. On his failure to deposit the money the result will be that the suit of the plaintiff will stand dismissed with costs in all courts. As the plea upon which this appeal has succeeded was not raised in the Court below we think the proper order to pass is that in case of payment of the pre-emption money by the plaintiff as directed the parties do bear their own costs in all the three Courts.