1. This is a plaintiff's appeal arising out of a suit for pre-emption. The suit was instituted more than one year after the registration of the deed of sale and the only question that arises for consideration in appeal is one of limitation. The property sold consisted of a two-pies undivided share out of a 4-pies share which constituted Khewat. No. 1 owned by Nathoo and Dasaiyan. Nathoo alone has sold his two-pies share to the vendee. The interest sold is obviously a fractional undivided zemindari share. Such an undivided share cannot be owned and possessed separately and is, therefore, not capable of physical possession within the meaning of Article 10 of the Limitation Act.
2. This point is quite clear from the Full Bench case of Batul Begam v. Mansur Ali 20 A. 315 : A.W.N. (1898) 61 (F.B.) which was affirmed by their Lordships of the Privy Council by a judgment reported as Batul Begam v. Mansur Ali Khan 24 A. 17 : 28 I.A. 248 : 5 C.W.N. 888 : 8 Sar. 133 : 3 Bom. L.R. 707 (P.C.), The same view has been followed in Umrao Beg v. Mukhtar Beg 50 Ind. Cas. 80 : 17 A.L.J. 269. The learned Advocate for the appellant argues that because the 2-pie share had been leased for five years to a lessee Har Prasad, who was collecting rents for the shares from the tenants separately, the property became capable of physical possession. We are unable to accept this contention as it is difficult to understand how the undivided share, which was incapable of physical possession, would become one capable of physical possession merely because a lease of it for a fixed period has been granted. It is unnecessary to consider in this case the further question whether interest in the property capable of physical possession when once leased out becomes incapable of physical possession.
3. The appeal is dismissed with costs including in this Court fees on the higher scale.