1. Second Appeal No. 1754 of 1927 arises out of a suit for pre-emption and is connected with Second Appeal No. 1755 of 1927. It appears that on 15th and 18th June 1925, two sale deeds were executed by the vendors in favour of the vendees and two separate suits for pre-emption were instituted on 15th June 1926, by the present plaintiffs. There were certain other rival suits for pre-emption with which we are not now concerned. While these suits were pending the vendee on 19th November 1926, obtained a deed of gift of a plot of land from a Hindu widow and the deed described them as the gurus of her and her deceased husband. A plea was raised on the strength of this deed of gift that the plaintiffs had ceased to have preference as against the vendees. On 24th February 1927, the present plaintiffs instituted a third suit to pre-empt this last mentioned transaction alleging it to be a sale.
2. We may also mention that on 13th December 1926, a suit was instituted by the reversioners of the deceased husband of the Hindu widow, the donor but on 25th February 1927, it was dismissed on their statement that they did not want to proceed any further with the case. The suit brought to pre-empt the property covered by the deed of gift is still pending in the first Court because it has been stayed and the question whether the transaction was a sale or gift has not yet been decided in that suit.
3. Both the Courts below have dismissed the plaintiffs' suit holding that the deed of gift taken by the vendees from the Hindu widow who is still alive is good and not defeasible and therefore the plaintiffs cannot succeed as against the vendees. There is no clear finding whether the transaction of 19th November 1926, was in reality a sale or it was a genuine gift. The lower appellate Court has thought that it is not open to the plaintiffs in this suit to raise that point. There is also no clear finding whether the deed of gift made by the Hindu widow in favour of her alleged gurus was for the spiritual benefit of her deceased husband and was in respect of such a fractional share in the estate as to be binding on the reversioners. The lower appellate Court has dismissed the suit on the main ground that the vendees having taken the gift from a Hindu widow who is still alive have acquired an indefeasible right for the time being and can defeat the plaintiffs. The learned Judge relies on the case of Naurang Rai v. Ram Sumer Rai : AIR1926All680 . Thai case was distinguished in the subsequent case in Deo Narain Singh v. Ajodhya Prasad : AIR1927All575 .
4. The last mentioned case is a clear authority for the proposition that the word 'indefeasible' in Section 20, Pre-emption Act, does not merely mean liable to pre-emption but means liable to be defeated and that there seems to be no reason why the process by which the vendees attain this position should be different an the cases provided for in Sections 19 and 20 respectively. In this latter case it was supposed that the facts in Naurang Rai v. Ram Sumer Rai, were similar and that in that case it was held that the vendees could defeat the claim for pre-emption on having taken a gift from a Hindu widow. The facts of Naurang Rai's case, however, were not so strong as was supposed. It was a converse case in which the plaintiff was claiming preemption on the strength of his rights acquired under a deed of gift from a Hindu widow. The question which the Bench had to consider was whether he was a cosharer within the meaning of Section 4, Sub-clause 1 of the Act and not whether the transfer in his favour was defeasible or indefeasible under Section 19. Thus the question was entirely different and it was merely laid down that having acquired the rights and interest of a Hindu widow who was alive and having got himself entered as a proprietor he was a cosharer entitled as a proprietor to any share because the widow represented the estate for the time being and could validly transfer the proprietary interest to him during her lifetime. That case is not authority for the proposition that a vendee taking a gift from such a widow after his sale deed takes an indefeasible interest while the widow is alive so as to defeat a claim for pre-emption.
5. We think that in view of the definition of the word 'indefeasible' given in Deo Narain Singh's case mentioned above, if the gift is obviously liable to be defeated the vendee has not acquired an indefeasible right.
6. It does not, however, follow that every gift made by a Hindu widow is necessarily defeasible. If it is for the spiritual benefit of the soul of a deceased husband and is to an extent allowable under the Hindu Law, it may be good and binding on the reversioners and may therefore be indefeasible.
7. We also think that the learned Judge was not right in preventing the plaintiffs from raising the question that the transaction which is ostensibly one of gift was in reality one of sale. It may be that soon after the gift was made the plaintiffs were not in a position to assert that it was a transaction of sale and that they discovered the fraud subsequently. If that be the case it would be unfair to prevent them from raising the question.
8. The defendants rely on the fact that the suit brought by the reversioners for the cancellation of this gift was allowed to be dismissed and urge that the suit being a representative suit brought on behalf of and in the interest of the whole body of reversioners has the effect of a binding character on all the reversioners and the suit having been dismissed it is no longer open to any reversioner to say that the gift was not valid. The suit, however, was filed about the time when these pre-emption suits were pending and it was allowed to be dismissed without any evidence having been adduced. If the suit was of a collusive nature it would not bind the reversioner who happens to succeed to the estate.
9. We therefore think that we cannot dispose of the appeal finally without clear findings on the three following issues:
(1) Whether the deed of gift dated 19th November 1926, was really a sale transaction or a genuine gift?
(2) Were the proceedings in suit No. 866 of 1926, filed on 13th December 1926 and allowed to be dismissed on 25th February 1927, collusive with a view to create evidence in favour of the donees?
(3) Whether the gift made by the Hindu widow to the vendees was for the spiritual benefit of her deceased husband and whether it was of such a fractional share as is permissible under the Hindu law?
10. Parties will be at liberty to adduce fresh evidence on the issues remitted. The findings will be returned within three months and on return of the findings the usual 10 days will be allowed for objections.