1. This is a reference under Rule 17 of the Rules and Orders relating to the Kumaun Division, 1894. The fads briefly are as follows--One Niazi Begam was the owner of certain encumbered shares in three villages, one of which was Meghawala Mahal Sufaid. Her share in it was 6 1/4 biswa which was encumbered as follows: Rs. 7,474 were due to Fardausi Begum and Rs. 3,169-8 G were due to Lala Chheda Lai. Niazi Begam, on the 9th of November 1906, through her guardian, Dost Muhammad, executed a sale-deed of all her shares in the three villages in favour of Basdeo Lal. The real consideration for the sale as has been found was that the vendee would pay off all the incumbrances on the shares sold and that he would deliver possession of 1 1/2 biswa in Meghawala Mahal Sufaid, free from all incumbrances, to the vendor. Chheda La1 brought an action to pre-empt the share of 6-1/11 biswa in Meghawala Mahal Sufaid. The Court of first instance gave him a decree which directed him to pay all the incumbrances on the shares in the three villages without specifying the period within which he had to do so. He appealed to the Deputy Commissioner of Kumaun and the learned Deputy Commissioner modified the decree of the first Court ordering pre-emption in respecb of 6 1/4 biswa on condition that the pre emptor was to pay into Court the sum of Rs. 7,471 due to Fardausi Begam within two months and was to make over 1 1/2 biswa to Dost Muhammad, guardian of Musammat Niazi Begam. A further appeal was taken to the Commissioner of the Kumaun Division who affirmed the decree of the Deputy Commissioner. The pre-emptor Chheda Lal then moved the Local Government to refer the case to this Court for an opinion and in this application he expressed his willingness to restore 1 1/2 biswa in Meghawala Mahal Sufaid to the vendor and to discharge such incumbrances on the property pre-empted as would be found legally enforceable against the said property. The substance of the referring letter is to the following effect: Is the decree passed by the learned Commissioner correct, or is the pre-emptor entitled to a decree in respect of 6j biswa in Meghawala Mahal Sufaid subject to the incumbrances thereon? Is the decree to be in respect of 4 2/4 biswa or in respecb of 6j biswa on condition of delivering possession of 1 1/2 bisawa out of 6 1/4 biswa free from all incumbrances to the vendor
2. A preliminary objection has been taken to this reference by the learned Counsel for the judgment debtor that there is no valid reference, inasmuch as the whole final decree of the Commissioner has not been referred to this Court. There is no force in this objection because the very first question formulated in the letter of reference is whether the decree of the Commissioner is correct and this clearly shows that the entire final decree has been referred to this Court. Coming to the merits of the case, we are of opinion that the decree passed by the learned Commissioner is not correct. It is a well settled rule in this Court that the right of pre-emption is a right of substitution See Tejpal v. Girdhari Lal 30 A. 130 : 5 A.L.J. 112 : A.W.N. (1908) 42 : 3 M.L.T. 223. That being so, the pre-emptor has a right to be substituted for the vendee subject to all the rights and liabilities created by the terms of the sale-deed dated the 9th of November 1906. In this case we are concerned with two points of that sale deed. One is, that the pre-emptor is entitled to pre-empt the share in Meghawala amounting to 6 1/4 biswa subject to the incumbrances thereon. The second is that he has to restore 1 1/2 biswa out of 6 1/4 biswa in Meghawala to the vendor Niazi Begam free from all incumbrances. A proper decree, having regard to the circumstances of the case, in our opinion, will be as follows: Lala Chheda Lal pre-emptor is entitled to possession of 6 1/4 biswa in Meghawala Mahal Sufaid by enforcing his right of pre-emption provided he pays off the two incumbrances already mentioned within six months and provided als) that he delivers possession of If biswa out of 6 1/4 biswa in Meghawala within the said period of six months to Musammat Niazi Begam free from all incumbrances. If he fails to perform the above two conditions within the prescribed time, his suit for pre-emption shall stand dismissed. Having regard to all the circumstances, the pre-emptor is entitled to his costs in all Courts provided he fulfils the condition imposed on him within the time fixed. If he fails to fulfil the conditions, he will have to pay the costs of the opposite party.
3. Our answer to the reference, therefore, is that the decree of the learned Commissioner is wrong and that the pre-emptor is entitled to take 6 1/4 biswa in Meghawali Mahal Sufaid subject to his discharging the two incumbrances within six months from this day and to his restoring free from all incumbrances within the said period 1 1/2 biswa out of the pre-empted property to Musammat Niazi Begam. The pre-emptor is entitled to his costs throughout, provided he fulfils the conditions imposed on him within the time fixed. If he fails to do so, his suit should stand dismissed with costs in all Courts. The costs in this Court will be certified.