1. This is a defendants appeal arising out of a suit for pre-emption. Various pleas were taken by the defendant but they were all overruled and the suit has been decreed. The plaintiffs allegation that the sale consideration mentioned in the sale-deed was inflated has however not been accepted and there is no cross-objection.
2. The first plea was that there was no custom of pre-emption in this village at all. In support of the alleged custom of pre-emption the plaintiff relied on an entry in the wajib-ul-arz of the year 1863 as well as an extract from the wajib ul-arz of the year 1325 F. and two judgments. There was no evidence to the contrary. The entry in the first wajib-ul-arz of 1863 was undoubtedly a prima facie evidence of the existence of a custom. The only point urged against this presumption is that it contains the two expressions 'in future' and a provision for reference to arbitration in the case of a dispute as to price. We are of opinion that these two circumstances cannot possibly destroy the presumption of the existence of a custom which arises from this entry. In the case of Digambar Singh v. Ahmed Sayed Khan AIR 1914 PC 11 their Lordships of the Privy Council had before them a wajib-ul-arz which contained both the expressions 'in future' and a provision for reference to arbitration. Nevertheless their Lordships were inclined to hold that record was a record of custom. There is therefore, no force in this contention. This evidence is further strengthened by the entry in the wajib-ul-arz of 1325F. to the effect that the co-sharers were agreed that they will be bound by the customs which were recorded at the time of the Settlement of 1863. Although the two judgments relied upon relate perhaps to mahals other than the mahal in suit and, therefore, are not of much value, they do all the same relate to the same village for which the wajib-ul-arz must have been prepared in 1863. On the whole we are satisfied that there is no good ground for differing from the view taken by the Court below that a custom of pre-emption exists in this mahal. In fact even if the agreement recorded in the wajib-ul-arz of 1325F be taken as a mere contract, it is still subsisting.
3. The second point raised is that the defendant is a co sharer in the same patti in which the property sold is situated. The constitution of this village is a curious one and 'patti Murdha' instead of being a part of a mahal itself comprises more than one mahal At the time of the institution of the suit, the defendants-vendees were co-sharers in 'patti Murdha' but not in mahal Haidar Sahai in which the property sold was situated. They were accordingly not on the same footing with the plaintiffs, but were strangers to the mahal, and could not defeat their right of preemption.
4. The third point urged is that the defendant has become a co-sharer by virtue of a deed of gift taken after the institution of the suit and before the decree. The finding of the Court below on this point is that this deed of gift was in reality a deed of sale for consideration and was clothed in the garb of a deed of gift in order to defraud the plaintiff. It is an admitted fact that on the very date on which this deed was executed the vendor executed a receipt for Rs. 200. According to the evidence of the patwari, a promissory note also was executed (presumably antedated) in favour of the vendor and the vendor executed the receipt in payment of this promissory note. These two documents as well as the deed of gift were executed at one and the same time and the same place, namely, Tahsil. These circumstances in themselves were sufficient for the Court below to find that there was in reality no gift made, but that the property was secretly sold to the vendees. We affirm that finding.
5. The last point urged is that even if there was a sale-deed obtained by the defendants-vendees, that sale-deed has never been pre-empted by the plaintiff at all, and that, therefore, the defendants had become co-sharers by the time the decree came to be passed, having acquired a perfect right to the property, and the plaintiff was not entitled to pre-empt the property as against the defendants vendees.
6. In a series of cases it has been laid down that one should not go beyond the date of the first Court decree, and that at any rate the last crucial date is the date when the first Court ought to have passed a decree in favour of the plaintiff vide the cases of Rohan Singh v. Bhao Lal  31 All 530, Radhika Raman v. Bohra Shiam AIR 1923 All 526 Baldeo Misir v. Ramlagan Shukul AIR 1924 All 82 and Umrao v. Lachhman AIR 1924 All 448 and other cases referred to therein.
7. It has been held in several cases that loss of the right by the pre-emptor after the suit but before the decree defeats his claim. It has been held in one case that the acquisition of another share by the defendant by means of a gift after the suit but before the decree defeats his claim. It has been held in one case that the acquisition of another share by the defendant by means of a gift after the suit but before the decree puts him on the same footing as the plaintiff so as to defeat his claim, vide the case of Behari Lal v. Mohan Singh AIR 1920 All 159. But if the principal that the lasts crucial date is the date of the first Court decree is to be carried to its logical conclusion, it would follow that nothing which happens after that date should be properly taken into account and that we ought to see what decree the first Court could have properly passed on the date when the suit was disposed of. If on the date of the first Court's decree the property acquired by the vendee under the second sale-deed was still liable to pre-emption by the plaintiff, could it be said that the Munsif would have been justified in dismissing the claim to preempt the first sale-deed merely on the ground that the vendee had taken another sale-deed and disregarding the fact that deed was still open to preemption by the plaintiff? Subsequent sale-deeds might be obtained by a vendee up to any stage and even at the eleventh hour. Is the Court to dismiss a claim for pre-emption on merely being informed that the vendee has obtained another sale-deed? If such a plea were to be permitted, the result would be most embarrassing. On the other hand, if one year has not expired since the acquisition of the second property the defendant's title to it has not completely matured and he cannot be said to have acquired an indefeasible title so as to claim to be on an equal footing with the pre-emptor.
8. If we accept, as we are bound to do in view of the cursus curiae the principle that the last crucial date is the date of the first Court's decree then we must hold that first Court could not have dismissed the suit when the vendee's title on the basis of the second sale-deed had not become unchallengeable. At one time there was a conflict of opinion whether such subsequent acquisitions could defeat a claim for pre-emption. But in the case of Kauleshar Rai v. Nabiban Bibi  28 All 642, Richards, J., held that where the vendee had made a second purchase, in regard to which limitation had not expired, the vendee could not be considered by virtue of his second purchase to have become a co-sharer, though in that case it turned out that no suit for preemption whatsoever was brought in respect of it. This view of his was affirmed by the Letters Patent Bench and the case is reported as Nabiban Bibi v. Kauleshar Rai  4 ALJ 351. In the subsequent case of Chanbraj Singh v. Mahesh Narain Singh (9) (which is the only direct case in favour of the appellant which we have been able to discover), Richard, C.J., thought that the former case of Kauleshar Rai v. Nabiban Bibi  28 All 642 had been wrongly decided by him. It was on the basis of this assumption that he dismissed the plaintiff's suit for pre-emption on the ground that the vendee had before the institution of that suit acquired another share in the village in respect of which no suit for pre-emption was ultimately brought. His attention, however, was not drawn to the fact that his own judgment had been affirmed by the Letters Patent Bench. The principle that a vendee cannot defeat the claim of a pre-emptor, if by the time of the first Court's decree he had not acquired an indefeasible interest, was adopted by another Bench in the case of Abdul Gafoor v. Gulam Hussain  35 All 296.
9. Great reliance has been placed by the learned advocate for the appellant on the case of Nadi Hussain v. Sadiq Hussain : AIR1925All361 We have examined the proper-book in that case and we find that the transfer pendente lite which had been obtained by the vendee was, as a matter of fact, a gift and not a sale. Such a transfer, therefore, was not liable to pre-emption by the plaintiff. That explains why the learned Judges considered that the mere fact that a suit brought by the donor to challenge it on the ground of fraud and undue influence had not been dismissed till after the first Court's decree in the pre-emption suit, did not prevent the defendant from claiming his rights as a co-sharer. That case is undoubtedly distinguishable.
10. On the other hand, the case of Sri Thakur Radhika Raman BiharijiMaharaj v. Bohra Shiam Sunder Lal AIR 1923 All 526 is, in our opinion, directly in point. In that case there were three transfers taken. The first two were sale-deeds, but the third one was in the form of a deed of gift which, however, was found ultimately to be really a deed of sale. Three successive suits for pre-emption were brought in respect of these three transfers, and all the three suits were dismissed by the first Court. It so happened that the appeal arising out of the third suit in which the ostensible gift was sought to be pre-empted, was dismissed for want of prosecution. The other two appeals however were decreed. The vendee in second appeal urged the plea that inasmuch as be had become a co-sharer by virtue of the dismissal of third suit after the first Court's decree, the first two suits also should be dismissal. This Court, however, held that the dismissal of the third suit for want of prosecution after the date of the first Court's decree did not disqualify the plaintiff from preempting the first two sales, inasmuch as the third transfer was still liable to preemption on the date when the first Court passed the decree. It was pointed out that if the third deed had really been one of gift, the position might have been different, but inasmuch as in reality it was a sale and was liable to pre-emption, the defendant could not set up his rights on the strength of it, even though it eventually turned out that the claim to preempt it failed.
11. We think that the same principle applies to the present case. Here the vendee had acquired new property during the pendency of the suit under a sale-deed which was still liable to pre emption on the date when the first Court passed its decree. Under these circumstances it was impossible for the first Court to have dismissed the suit on the simple ground that a second sale-deed also had been taken. That being so we should ignore the subsequent event that by the time limitation expired no suit for pre-emption had in fact been brought. If we were to take into account this subsequent omission, we would be going against the principle that no circumstance should be taken into account, which the first could not have considered on the date when it passed its decree.
12. I agree with the conclusions and the reasoning generally of my brother. There is undoubtedly a cursus curiae with which, if I may say, I am in entire agreement that at least the last date that can be considered is the date on which the first Court passes its decree. It is equally beyond doubt that there are some cases in which it has been decided that certain circumstances may be given effect to though they have occurred between the date of the suit and the date of the decree, for instance, cases dealing with the loss of the plaintiff's right by auction sale. In Rohan Singh v. Bhan Lal  31 All 530 it was said:
With the exception of the observations in the case of Ram Gopal v. Piari Lal  21 All 441 the decision-all seems to show that it has been the opinion of this Court that the date of institution of the suit was the crucial date; and that if the plaintiff was able at that time to fulfil the conditions necessary to entitle him to a decree, a decree ought to be made in his favour.
13. A number of cases are quoted in support of this proposition. On the other hand it is suggested that this description of the cursus curiae is too wide. I prefer, so far as I am concerned, to leave this question open. The ordinary rule of considering the state of affairs at the date of institution of the suit has been departed from in the cases to which I have referred and in which it has been held, for instance, that a plaintiff may use his rights during the course of the suit. The principle underlying these decisions is that the plaintiff's right to pre-emption is essentially founded on the fact that he is already a co-sharer, and similarly the defendant's right to resist is based on the fact that he is already a co-sharer. There is obviously something to be said in support of this departure from the ordinary rule of regarding the date of suit as the crucial date, but it is a dangerous departure. I think that its extension to further cases is one to which I should be very l0th to assent without full consideration. These observations are only necessary because I want to guard against the suggestion that anything and everything that occurs subsequent to the date of suit may similarly be taken into consideration. I agree with the order proposed.