1. This is a defendants' appeal arising out of a suit for pre-emption of property transferred under a sale-deed dated 19th June 1923 Subsequently the vendee obtained a deed of gift from one Babu Lal of a share in this mahal. Two successive suits were instituted to pre-empt this transaction. The suit to pre-empt the gift on the ground that it was really a sale has failed on the finding that the transaction was a gift and not a sale; but the suit to pre-empt the sale transaction has been decreed by both the Courts. The plaintiff at the outset had alleged that the donor Babu Lal had no title to the property and had no right to make the gift. In the course of the trial when Babu Lal was examined it transpired that the property did not really belong to him but belonged to his wife who died ten years ago. Although Babu Lal's name had been entered in the revenue papers as a cosharer he has sons and grandsons who are heirs to his wife. One of the sons was examined as a witness and stated that he had no objection to the gift being made The learned Judge has held that Babu Lal had not acquired full proprietary title to the property and therefore the deed of gift executed by him was wholly ineffective to confer title on the vendee. He has further held that the mere fact that Babu Lal is recorded as a cosharer and is in possession of the property does not make him a cosharer, that is to say one entitled as proprietor to the share within the meaning of Section 4, Sub-clause (1). According to him the title there means actual proprietary title and not merely possessory title. We fully agree with this view.
2. The learned Judge has also repelled the defendants' contention that the plaintiff having himself instituted the suit to pre-empt the gift made by Babu Lal was estopped from contending that Babu Lal had no right to make the gift. There is no estoppel against the plaintiff particularly as it has been pointed out by the learned Judge that there is nothing to indicate that the plaintiff was aware of this fact before Babu Lal was examined. There is no force in this appeal and it is dismissed with costs.