1. This is a plaintiff's appeal arising out of a suit for pre-emption. The widow of Abdul Karim acting for herself and as guardian of her minor daughter sold a half-share in 10 bighas 19 biswas zamindari property belonging to her deceased husband ostensibly for a sum of Rs. 1,250. It appears that previously the widow had applied to the District Judge for permission to sell the share of her minor daughter and that permission was refused. The present plaintiff filed this suit for pre-emption and alleged that the widow had no power to sell more than one-eighth share which the plaintiff stated was owned by her. In para. 11 of the plaint it was specifically mentioned that the sale in respect of more than one-eighth share was unlawful. Then in para. 13, the plaintiff offered to pre-empt that portion of the property sold which the Court held was valid according to law and added that if the sale of the whole half-share was found to be valid he was prepared to pre-empt the whole. In para. 16 he offered to pay any price which the Court may determine. The relief claimed was for possession by pre-emption of the property detailed or any portion thereof as the Court may think proper. On a perusal of the plaint we are of opinion that the learned District Judge is quite right in holding that the plaintiff had put forward two alternative cases. In the trial Court he alleged that the sale of any share in excess of one-eighth was invalid and offered to pre-empt the whole only if the Court found that the sale of the whole property was valid. We further agree with the learned District Judge that this way of putting the case in the alternative was not fatal to the plaintiff's suit for preemption because he had also expressed his readiness to pay the whole price and to pre-empt the whole property.
2. It would not be proper to decide in this case the exact extent of the share owned by the widow or her right to transfer the property. In the absence of any specific allegation of fraud the plaintiff is not entitled to put the widow to the proof of her title. He should step into the shoes of the vendee and must take the same risk as the latter has taken, and pay the same price.
3. The Court of first instance however, decreed the claim for pre-emption of one-fourth of the half-share of the property sold on payment of the proportionate amount of Rs. 292-8-0, having found that the consideration was really Rs. 1,170 and not Rs. 1,250.
4. The plaintiff submitted to the decree, but the defendant appealed. On behalf of the defendant an objection was taken that inasmuch as the plaintiff had not appealed from the decree dismissing the rest of his claim the whole suit ought to be dismissed on account of the defect of partial pre-emption. It is this plea which found favour with the learned Judge. The learned Judge has thought that in the circumstances he was limited to only one course namely to decree the appeal and dismiss the whole suit. He thought that he could no longer take into consideration the plaintiff's alternative case to pre-empt the whole property and that inasmuch as there was no appeal on behalf of the plaintiff the learned Judge could not help him.
5. We are of opinion that the view taken by the learned District Judge was not correct. He had ample power to decree the whole claim under Order 41, Rule 33, Civil P.C. The plaintiff had offered to preempt the whole property. It was the Court which declined to give him possession over more than one-fourth of one-half. That being so his suit should not have been dismissed on appeal on the mere ground of partial pre-emption.
6. We think that before the appellate Court either the defendant should have waived her objection to partial pre-emption or should have insisted on the plaintiff agreeing to pre-empt the whole property. Mr. Krishna Bahadur who holds the brief of Mr. Majid Ali states before us that his client would prefer to submit to the pre-emption of the whole property by the plaintiff than to his pre-empting a part only.
7. The defendant in her appeal before the District Judge had challenged the finding of the Court of first instance that the real consideration was Rs. 1,170 only. The balance of Rs. 80 was said to have been paid to one Imtiaz whose receipt was filed by the defendant and who was examined as her witness. The Court of first instance felt doubtful as to the truth of this witness's statement. Having examined the evidence we are of opinion that there was no good ground for disbelieving him. We therefore think that Rs. 1,250 should be taken to be the true consideration.
8. In these circumstances we allow the appeal and set aside the decrees of both the Courts below and decree the plaintiff's suit for pre-emption of the whole property sold on payment of the whole amount of Rs. 1,250. In the special circumstances of the case we direct that the parties should bear their own costs throughout. We fix the period of 60 days from this date for payment. If the amount is not paid within the time allowed the suit will stand dismissed with costs in all Courts.