1. This appeal raises an interesting and important question. The facts are shortly as follows:
2. On the 7th April 1904, three deeds were executed: (1) a sale-deed of 3 1/2 anna share in Mauza Gubni and a 10 pie share in Mauza Bhitni in favour of Adit Singh and others, (2) a sale-deed of two decrees in favour of Adit Singh alone and (3) a mortgage by Adit Singh of his share in the purchased property to secure the price of the decrees. The present suit was instituted on foot of the mortgage. The representatives of the respondents, Kamta Prashad and Girja Prashad, brought a suit for pre-emption basing their claim upon the sale to Adit Singh and others of the 7th of April 1904. They did not make the mortgagees under the mortgage from Adit Singh parties. The mortgage is, however, a registered deed. The lower appellate Court finds that when the defendants respondents pre-empted the property, they had notice of the mortgage. Mr. Sital Prashad, on behalf of the respondents, contends that this ought not to be regarded as a finding, that there was no issue in the Court of first instance upon this point, and that the Court had no right to record any finding. I can find no justification for this contention. No objection was taken to the findings of the Court below by the respondents. 1 deal with the case on the basis of the lower appellate Court having found as a fact that the defendants respondents had notice of the mortgage when they sued for pre-emption. It is contended on behalf of the respondents that when the property was sold on the 7th of April 1904, their right of pre-emption arose, and that the vendee could not sell or deal with the property so as to affect the rights of the pre-emptors until after the period of limitation had expired. They admit that the vendee could mortgage but contend that if a pre-emption suit was duly instituted the mortgage of the appellants fell with it. They contend that the right of pre-emption is not a right of re-purchase but is simply a right entitling the pre-emptor to be substituted for the vendee as purchaser and to stand in his shoes in respect of all rights and obligations arising from the sale under which they derive their title, See Tejpal v. Girdhari Lal 30 A. 130 at 132 Mr. Sital Prashad also quotes, on behalf of the respondents, the Full Bench decision in Gobind Dayal v. Inayatullah 7 A. 775. The appellants on the other hand contend that the vendee has a perfect right to sell or otherwise deal with the property, he has bought, right up to the time the pre-emption suit is instituted and that it would be very unreasonable to hold that the purchaser who has purchased property must wait for a year before he can legally deal with the same. Mr. Govind Prashad, for the appellants, quotes the decisions in Serh Mal v. Hukam Singh 20 A. 100 and Narain Singh v. Parbat Singh 23 A. 247, and a decision of a Bench of this Court in Allahabad Khan v. Munshi Abdul Hakim, Second Appeal No. 724 of 1906, judgment delivered on 15th April 1907. In the first two cases it was held that where the property after being sold to strangers was re-sold by the strangers to a co-sharer before suit, there was no right of pre-emption. In the unreported case the property had been re-sold before the suit was instituted and the Court dismissed the suit on the ground that the plaintiff bad sought to pre-empt only the first sale. If the right of the pre-emptor is in the strict sense of the expression a light to be substituted for the vendee, I cannot see how the vendee can defeat his right by selling a second time. I think it follows from the decision in Serh Mal v. Hukam Singh 20 A. 100 and the Full Bench case of Janki Prasad v. Ishar Das 21 A. 374 (F.B.), that a vendee has a right to deal with, the property up to the time the pre-emption suit is brought. If this is so, the defendants are bound by the mortgage. It is not necessary in the present appeal to decide whether or not it is necessary for the pre-emptor to pre-empt the second sale or mortgage. Possibly it would have been sufficient in the present case if the pre-emptors had impleaded the mortgagees so that the sale price might not have been paid to their mortgagors behind their back. The question is by no means free from difficulty and I give my decision with considerable hesitation. I allow the appeal, set aside the decree of the lower appellate Court and remand the case under Order 41 Rule 23 for determination of the case on the merits. Vikerma Singh and Rajnath Singh, although they were brought on the record, have not been served, and are not bound by this decision. The learned. Vakil for the appellants stated that ho did not wish to take any stops to have them served.