1. This is a defendants' appeal arising out of a suit for pre-emption. On 29th August 1927, a sale-deed was executed by one Jaisiri in favour of Sheo Balak and Ram Sunder. On 1st September 1928, a suit was brought by the plaintiff-respondents, plaintiffs 1 and 2 as well as by plaintiff 3, Hari Shankar, on the ground that they were co-sharers in the mahal; whereas the vendees were perfect strangers. At that stage there was no necessity for them to allege that there was any preferential right in the first two plaintiffs on account of relationship. During the pendency of the suit, namely, on 11th September 1928, the: vendees obtained some share in the mahal under an exchange which put them on the same footing as co-sharers with the plaintiffs. On this Ha ri Shankar applied to withdraw from the suit, and the other plaintiffs applied for the amendment of the plaint so as to base their claim on their preferential right, as they alleged them selves to be descended from the common ancestor of the vendor and were within four degrees of him. The plaint: was amended and Hari Shankar also. withdrew from the suit. The first Court decided the case on 8th April 1929, dismissing the' claim. The lower appellate Court decreed the claim of the plaintiffs on 10th April 1930. In the meantime the Amending Act (Act 9 of 1929) had come into force on 27the January 1930 when the assent of the Governor-General was received.
2. The lower appellate Court has come to the conclusion that the withdrawal of Hari Shankar did not in any way affect the rights of the other plaintiffs and that by joining Hari Shanker in the suit they had under Section 21, Agra Pre-emption Act, reduced their old status and could not be regarded as more than mere co-sharers with the vendor. But the learned Judge has gone on to hold that the result of the amendment of Section 20 is that the defendants cannot claim to have acquired an interest sufficient to defeat the plaintiffs' claim.
3. Before the amendment it was held by a Full Bench of this Court that although Section 20 was applicable only to transfers and acquisitions before the institution of the suit, Section 19 was applicable to acquisitions made during the pendency of the suit, and that accordingly if a vendee acquired the status of a co-sharer equal to that of the plaintiff after the institution of the suit and before the decree came to be passed, he could successfully defeat the plaintiff's claim. In the present case the defendants on 11th September 1928, became co-sharers and were on the same footing as Hari Shanker,, and inasmuch as the other plaintiffs had joined him in the suit, they were entitled to defeat the claim of all the plaintiffs. This right acquired by the vendees was a substantive right and extinguished the preferential right as against them.
4. It is however urged that Section 21 cannot apply to a case where one plaintiff, although belonging to the same class as the other plaintiffs has an inferior right, because he is not a relation within four degrees from the common ancestor. We think that Section 21 is intended to lay down (as is also suggested by the marginal note appended thereto) that where a pre-emptor possessing a superior right sues jointly with a pre-emptor possessing an inferior right he shall have no higher right than the person with whom he sues. The word 'class' referred to in this section does not necessarily mean one of the five classes mentioned in Section 12, Sub-section (1) but must also include relations who have a preferential claim under Section 12, Sub-section (3). The principle underlying this section is that if a person possessing a superior right is not prepared to pre-empt the sale on payment of the whole price but finds it necessary to join with him a person who Las an inferior right, so that they may share in the pre-emption money to be deposited, he by his conduct gives up his superior right and lowers himself to the status of the person whom he joins. Having done so, his superior right is altogether lost, and the mere fact that at some subsequent stage the person joined is prepared to withdraw would not suffice for restoring to the former his superior right. Even before the amendment it used to be held that a defect of this kind cannot be cured by a subsequent amendment of the plaint.
5. Hari Shanker, although a member of the plaintiffs' family, was not within four degrees of the common ancestor of the vendor; whereas the other two plaintiffs were. At the time when the suit was brought the vendee was a stranger, and all the three plaintiffs being co-sharers had a preferential right as against the vendees. But the right based on relationship could not be enforced, because Hari Shanker did not possess any such right. It was on. account of the fact that Hari Shanker could not claim such a right that the vendees presumably obtained a deed of exchange so as to put themselves on the same footing as the plaintiffs. The mere fact that Hari Shanker subsequently withdrew would not help the other plaintiffs so as to enable them to claim now a preferential right based on their mere relationship with the venvor. We are therefore of opinion that the effect of obtaining the exchange-in September 1928 was to put the defendants on the same footing as the three plaintiffs on that date, and a subsequent withdrawal of Hari Shanker or the passing of the Amending Act-would not improve the position of the plaintiffs.
6. In the result, we allow the appeal and setting aside the decree of the lower appellate Court dismiss the plaintiffs' claim for pre-emption. As the exchanges were obtained during the pendency of the suit, we direct that the plaintiffs should have their costs of the first Court from the defendants-vendees, but that they must pay the costs of the defendants-vendees, in the other two Courts.