1. This is a defendant's appeal arising out of a suit for pre-emption. The property sought to be pre-empted was sold under a deed executed on the 22nd February 1924, and registered on the 26th. The suit was instituted on the 26th February 1925. During the pendency of the suit in the Court of first instance the defendant-vendee became a co-sharer in the village by virtue of a deed of exchange dated the 20th April 1925. The case is governed by the Agra Pre-emption Act, 1922 and it is not disputed before us that a custom must be presumed to exist in this village and that the consideration is Rs. 7,000.
2. The only point which was in dispute in the Court below and is in dispute before us is whether the defendant-vendee can defeat the claim for pre-emption on the strength of his having become a co-sharer after the institution of the suit and before the decree. The learned Subordinate Judge has discussed the point at some length and come to the conclusion that his acquisition of a share in the village subsequent to the institution of the suit does not entitle the vendee to defeat the plaintiffs' claim.
3. The point is no doubt one of considerable difficulty as well as importance. The language of Sections 19 and 20, which are the relevant sections, is unhappy. The point, however, was considered by us at length in the case of Qudrat-un-nissa Bibi v. Abdul Rashid : AIR1926All661 and we came to the conclusion that having regard to the language of these two sections, the view which undoubtedly prevailed prior to the passing of the Act had not been departed from and that the plaintiff must have a subsisting right to be substituted in the place of the transferee at the time of the decree before he can succeed. That case has been followed in several unreported cases since then: S.A. No. 1092 of 1925, decided on the 29th October 1926 by Mr. Justice Lindsay, and one of us [Ram Khelawan v. Banke Bihari : AIR1927All517 and referred to in the case of Sultan v. Mositu : AIR1926All749 . The learned advocate for the respondent concedes that in view of these reported cases, it is very difficult for him to succeed so far as this Court is concerned. Following the principle underlying the cases mentioned above we allow this appeal and set aside the decree of the Court below and dismiss the plaintiffs' suit.
4. It is, however, clear that at the date when the suit was filed the plaintiffs were justified in instituting the suit. It has failed in consequence of a subsequent acquisition of a share in the village by the defendant. It would be just to award the plaintiffs' costs of the Court of first instance. The appellant will, however have his costs of this appeal from the plaintiffs.