1. This is an appeal under the Letters Patent in a pre-emption case. The appellants are the vendees who purchased shares in 8 villages under a sale-deed of the 11th of June 1907. They were at the date of this purchase admittedly strangers to the villages in question. The suit to pre-empt this sale was instituted on the 5th of October 1907. Before this suit was instituted, namely on the 21st of August, 1907, the appellants purchased shares in 5 of the 8 villages) and thereupon became co-sharers in those villages. A suit was brought by the plaintiff-respondent to pre-empt the sale of the 21st of August 1907, and a decree for pre-emption was passed in his favour, but he failed to pay the purchase-money and consequently the suit was dismissed. The effect of this decree is that the appellants have now an indefeasible interest in the five villages in question and this interest they acquired prior to the institution of the suit out of which this appeal has arisen. Their title accrued at the date of their purchase but their interest would have passed to the plaintiff pre-emptor if he had carried out the decree in his favour for preemption. When he failed to do so the title of the appellants became indefeasible.
2. It is contended by the learned Counsel for the appellants that by reason of the purchase of the 21st of August, 1907, they are entitled to shares in five of the villages, and are by virtue of that purchase indefeasible owners and co-sharers.
3. The learned Vakil for the respondent resists this contention and relies upon the decision of Richards and Alston, JJ., in the case of Rohan Singh v. Bhau Lal 6 A.L.J. 699 : 3 Ind. Cas. 42 : 31 A. 530. That case is clearly distinguishable from the present inasmuch as the purchase in that case was made after the institution of the suit for pre-emption. Another case which has been relied upon is that of Kaleshar Rai v. Nabiban Bibi 28 A. 642 : A. W.N. (1906) 164 : 3 A.L.J. 246. In that case it was held by our brother Richards that where in a suit for pre-emption it appeared that the vendee had prior to the date of the suit made a second purchase in regard to which no suit had been filed prior to the date of the institution of the suit in regard to the first purchase, but limitation had not expired in regard to the second purchase, the vendee could not be considered by virtue of his second purchase to have been a co-sharer at the date of the institution of the suit for preemption of the first sale. That case is also distinguishable from the present case because there it was open to the parties seeking preemption to pre-empt also the second sale. The case before us is different inasmuch as the appellants have acquired an indefeasible title under their second purchase and are co-sharers in the full sense of the word. A suit for pre-emption was brought in respect of the second sale and has failed.
4. A case closely resembling the present is that of Bhagwan Das v. Mohan Lal 26 A. 421. In that case it was held by a Bench of this Court of which one of us was a member that if a stranger purchases a share in a village in respect of which a right of pre-emption exists in favour of co-sharer but subsequently to such purchase and before any suit for preemption is brought in respect of such shares, becomes himself, apart altogether from the purchase in dispute, a co-sharer in the village, he cannot be ousted by any co-sharer not having superior pre-emptive rights to himself. In the course of the judgment the principle applicable to such cases is stated as follows:'That principle seems to us to be that where a share has in violation of the provisions of the wajib-ul-arz been sold to a stranger, if before the institution of a suit for pre-emption that share has found its way into the hands of a co-sharer whose rights of preemption as such are equal to those of the plaintiff in a suit for pre-emption, subsequently instituted, then the pre-emptor's suit will fail. The reason of the rule seems to be that, as the object and cause of the institution of preemptive rights is the desire to keep strangers excluded from the co-parcenary body that reason and object cannot justify a preemptive suit by one co-sharer against another, to compel the latter to surrender a share over which his pre-emptive rights are on the same level as those of the plaintiff.' We may point out here that this question was not discussed before the learned Judge of this Court or in the lower appellate Court. The reason for that was that at the date when the appeals were heard the plaintiff-respondent had obtained and held a decree for pre-emption. This is a matter which must be considered when the question of the costs of the litigation are disposed of.
5. The result will be that the plaintiff-respondent will not get a decree for pre-emption in respect of the shares in the five villages which. have been purchased by the appellants under the sale-deed of the 21st of August, 1907, but he will be entitled to pre-empt the shares in the rest of the villages. Before we can finally dispose of the appeal we must refer an issue to the lower appellate Court for the purpose of determining the price attributable to the shares of the villages in question. The issue will be as follows:
What portion of the price of the villages comprised in the sale-deed of the 11th of June, 1907, is attributable to the three villages in which the appellants are not co-sharers under their purchase of the 21st August, 1907?
6. The lower Court will take such additional evidence as may be required and on return of the finding the usual ten days will be allowed for filing objections.