1. This is a defendant-vendee's appeal arising out of a suit for pre emption brought by three plaintiffs, Oudh Behari Lal, Tapeshri Prasad and Mahadeo Prasad. The first two are own brothers and presumably members of a joint Hindu family. According to the allegations in the plaint plaintiff 3 is a cosharer with a distinct and separate share of his own. The sale deed was executed on 6th March 1925. The connected appeal arises out of a suit to pre-empt a transaction which according to the plaintiffs, was evidenced by a deed of gift of 19th December 1925 and a sale-deed of 21st December 1925, both of which ware registered on the same day. The claim was resisted on the ground that the defendant had become a cosharer by virtue of this deed of gift and also on the ground that the plaintiffs had refused to purchase the property. The lower appellate Court has overruled both these objections and decreed the claim.
2. It has held that the two deeds of December 1925 were part and parcel of one transaction viz., of sale and that one single consideration was paid for both these transfers. This in our opinion is a finding of fact which must be accepted in second appeal.
3. In order to prove the refusal on the part of the plaintiffs the defendants produced oral evidence, as also a letter (Ex. D) written by Oudh Behari Lal, plaintiff 1, to the vendee Suraj Prasad. As to the oral evidence the lower appellate Court has found it unsatisfactory and has agreed with the Court of first instance that it should be rejected. As to Ex. D it is of the opinion that it did not amount to a final refusal to purchase the property on the part of the plaintiff. This finding is challenged in appeal before us.
4. The letter makes it quite clear that previously the vendor had offered to sell his share to the plaintiff. Oudh Behari Lal at Rs. 4 per cent but the plaintiff refused to take it and told him that he would take the property if sold at the rate of Rs. 4-8-0 per cent. He further informed the vendee that it was utterly useless to take the property at any rate higher than Rs. 4-8-0 per cent and that if the vendor sold the property at Es. 4-8-0 per cent he the plaintiff himself would take it. A perusal of this letter makes it quite clear that there has been a refusal on the part of Oudh Behari Lal to take the property from the vendor at the rate of Rs. 4 per cent and further that he clearly intimated to the vendee that he would not take the property at 'any price higher than that calculated at the rate of Rs. 4-8-0 per cent.
5. In the present case the income 'of the property transferred according to the sole testimony of the vendor comes to Rs. 63-2-7- which works out at an annual rate of less than Rs. 4 which would make the price higher than what was offered by the plaintiff. We are therefore clearly of opinion that Oudh Behari Lal is estopped from pre-empting this sale.
6. Plaintiff 2 is a member of a joint Hindu family and is his younger brother. Presumably the elder brother was the karta of the family and we think that both these plaintiffs are equally bound by the refusal of the manager to take the property.
7. The case of plaintiff 3 stands on a different footing as according to the allegation in the plaint he holds a separate and distinct share. The learned advocate for the respondents has relied on the case of Lal Behari Misra v. Eqeen Mohammed Hajjam : AIR1926All722 for the proposition that the mere 'fact that a co-pre-emptor is found to have acquiesced in a sale before the suit and is consequently estopped from pre-empting does not disqualify the other pre-emptor who has not acquiesced in the same way. On behalf of the appellant it is urged that on the principle embodied in Section 15, Agra Pre-emption Act, the right to preempt was extinguished' by virtue of this refusal and that accordingly Oudh Behari Lal had no right of pre-emption at the time when the suit was filed with the result that under Section 21 of the Act plaintiff 3 had also lost his right.
8. It is not necessary for us to consider the effect of the statutory provision of Section 15 of the Act as to the extinction of the right of pre-emption on failure to reply to 'a notice served under Section 14. But as to estoppel under Section 115, Evidence Act, it seems to us that such an estoppel merely operates as a bar to the suit and does not necessarily extinguish the right. The right of pre-emption existed but the remedy was barred. In the case quoted above the Bench took the view that the expression 'persons having a right to pre-empt' applies to that class of proprietors who are ref-erred to in Section 11 and Section 12 of the Act as being entitled to exercise the right] of pre-emption and would not necessarily] include a person who could not enforce his right on account of the principle of estoppel.
9. We see no reason to take a contrary view particularly as this view is in accordance with the rule which was in force previous to the Act. The result therefore is that the suit, of the plaintiffs Oudh Behari Lal and Tapeshri Prasad stands dismissed with costs in all Courts in favour of the defendant. But the claim of the plaintiff Mahadeo Prasad for the entire property stands decreed with costs in all Courts. In either event the costs will include fees on the higher scale.
10. In case there is any doubt as to any portion of the amount already deposited having belonged to the two plaintiffs whose suit stands dismissed we allow one month's time from this date to Mahadeo Prasad to make the deficiency good by the deposit of the additional amount necessary.