1. This is a defendant vendee's appeal arising out of a suit for pre-emption. One of his defences to the suit was that prior to the institution thereof and after the sale deed in dispute he acquired a share in the mahal by a deed of gift which made him a co-sharer in the mahal on the same footing as the plaintiff and, therefore, the plaintiff had no right of pre-emption as against him. He produced the deed of gift of the 29th of June 1916. The only exception taken by the plaintiff to this document was that it was not really a deed of gift but a deed of sale. No objection was taken that this document had not been duly attested as a deed of. gift ought to be attested. One of the attesting witnesses was sailed to prove the deed. He proved its execution and stated that he had attested it at the request of the donor. Not a question was put to him as to whether the attestations of the witnesses were made at the time the document was executed and in the presence of the executant or whether the witnesses signed the document subsequently on an acknowledgment by the executant of his signature thereon. The point was not raised. The Munsif held on the basis of the decision in Bhagwan Das v. Mohan Lal 25 A. 421 : A.W.N. (1903) 83 that the defendant vendee having become a co-sharer with equal rights with the plaintiff, the latter was not entitled to preempt in respect of the sale in question. 'The plaintiff, appealed. The Court below held that the evidence on the record did not establish the due attestation of the document and that, therefore, the deed of gift was invalid and the defence failed. It accordingly decreed the plaintiff's claim.
2. On behalf of the defendant it is urged before us that he was taken entirely by surprise by this plea of the plaintiff in the Appellate Court; if any such objection had been raised, he could easily have proved the due attestation of the document, the genuineness and validity of the document were not challenged in the first Court. Furthermore it is pleaded that the gift was a gift by a Muhammadan, and as such under Section 129 of the Transfer of Property Act, the Muhammadan Law applied to the gift and no document was even necessary. We think that the pleas raised on behalf of the appellant have force and must prevail. The gift, being a gift by a Muhammadan, required no reduction to writing or if it was reduced there is nothing to show that it was not duly attested. The validity and the genuineness were practically admitted in the Court of first instance and we do not think it was fair for the lower Appellate Court to allow the point to he raised without giving the defendant further opportunity of proving the due attestation of the document. We must allow this appeal. The defendant having become a co-sharer with equal rights with the plaintiff prior to the institution of the suit, the plaintiff had no right of pre-emption as against him on the day on which he instituted the suit. We set aside the decree of the lower Appellate Court and restore that of the Court of first instance. The appellant will have his costs in all Courts.