1. These are three appeals which arise out of two suits for pre-emption of a property situated in Chowkri Bisheshwarji Rasta Gopalji Jaipur City sold by Hanuman prashad defendant in favour of Mina Lal (hereinafter to be called the vendee) as per sale-deed, dated 7th December 1942 and registered on 16th June, 1943. One of the suits namely 149 of St. 2,000 was filed by Prabhoo Dayal who hereinafter will be referred to as the first pre-emptor and the other that is 150 of St. 2000 was filed by Gopichand who will hereinafter be referred to as the second pre-emptor. Both the suits were filed in the Court of City Sub-Judge, Jaipur on the 1st July, 1944. The sale consideration was Rs. 2,599/- and the property sold is represented by letters A & B on the ground floor and letters Y and X on the second and third floor respectively in the sketch map Ex. A 3 filed in the suit No. 150 and is coloured red. It is the part of a big Haveli.
2. The claim of each of the pre-emptors is that he has preferential right as compared to the vendee on account of being co-sharer in the property, participator in immunities and appendages and owners of adjoining immoveable property.
3. The vendee denied both the pre-emptors' right to pre-empt and asserted that he himself had the preferential right as compared to the pre-emptors.
4. The learned Sub-Judge dismissed the suits of both the pre-emptors so far as properties X and Y are concerned holding that the vendee had his houses adjoining these two properties on the north and the walls between these two disputed properties on one side and the property of the vendee on the other were joint. This property of the vendee is shown in Ex. A 3 in yellow colour and is marked M & N. He also gave an additional ground for dismissal of the suit with respect to property Y that property K adjoining towards south belonged to the vendee and had a joint wall and stair case with property Y. He however, decreed first pre-emptor's suit with respect to property A and the second pre-emptor's suit with respect to property B to the extent of one-half each on the ground that they had their properties adjacent to these properties and the wails between them were joint. He dismissed the suits with respect to there two properties to the extent of other half holding that property C shown in Ex. A 3 had been purchased by the vendee after the sale-deed in dispute and the said property had joint walls with properties A & B.
5. Against this decree of the learned Sub-Judge the vendee filed 2 appeals contending that the two pre-emptors ought not to have been given a decree to the extent of half in the properties A & B. Each of the pre-emptors also filed an appeal contending that his suit should have been decreed in full. The learned District Judge, after hearing all these appeals disposed them of by one judgment, dated 23rd March, 1948. He dismissed both the appeals of the vendee and partly allowed the appeals of the pre-emptors inasmuch as the 1st pre-emptor was given a decree for the whole of the property A on payment of an additional sum of Rs. 137/9/- and the second pre-emptor was given a decree for the whole of property B on payment of an additional sum of Rs. 281/4/. The reason for this modification of the decree as given by the learned District Judge is that the purchase of property C by the vendee after the disputed sale conferred upon him no right of pre-emption.
6. The second pre-emptor and the vendee have come in second appeal to this Court. Two appeals Nos. 44 and 45 of 1949 have been filed by the vendee in suits Nos. 149 and 150 respectively while the second pre-emptor has filed appeal No. 24 of 1949 in suit No. 150 of St. 2000. We have heard all the 3 appeals and they can be disposed of by one single judgment.
7. Taking up the appeal of the second pre-emptor first, his learned counsel did not challenge the lower Court's finding so far as property X was concerned. His only argument was that this pre-emptor should have been given decree with respect to property Y to the extent of one-half. It was argued that if the vendee had his property M adjacent to property Y, this pre-emptor has his property L beneath this very property. Both had, therefore, equal rights and the pre-emptor was entitled to a decree to the extent of one-half. It was argued that property K was not in the ownership of the vendee but was in his possession only as a mortgagee which could give him no right of pre-emption. If the decision were to turn on the ownership of properly it would have been necessary to give effect to this contention because it is the ownership in a property which gives rise to right of pre-emption and not only possession as a mortgagee. At the most the vendee has been able to prove that he has been in possession of property K as a mortgagee but this cannot give him a right of pre-emption. The judgment of the lower appellate court however, shows that it is not based on any right of the vendee in property K. It is based upon the fact that the wall between property M and property Y is a joint wall and therefore the vendee can be said to be a ''Sharik' in property Y. The finding that the wall between M & Y is joint has been concurrently arrived at by both the Courts below. It cannot therefore be interfered with in second appeal. Second pre-emptor's appeal therefore fails.
8. Coming to the 2 appeals of the vendee there can be no doubt that he purchased property C after he purchased the disputed property. This sale was effected on 31st March, 1944. By virtue of this the vendee became owner of property C and this sale was never pre-empted. He had therefore become an owner of this property not only before the date of the decree of the first Court which was passed on 24th of April, 1946 but also before the date of 2 suits which were filed on 1st July, 1944. The wall between the disputed property B and the property C is joint and there is a common staircase leading to both. The vendee was therefore a co-sharer in the property in dispute before the suit was brought and the decree of the 1st Court was passed. He was therefore equally entitled to preemption with the second pre-emptor so far as property B is concerned as the second pre-emptor also had a joint wall between his property and the property B. Similarly both the first pre-emptor and the vendee had joint walls between their properties C & D, and the disputed property A. They were therefore equally entitled. It was argued on behalf of the pre-emptors that the acquisition of property C by the vendee after the sale of the property in dispute would not help the vendee as he should be entitled to pre-emption on the date of sale. The lower appellate Judge has favoured this view on the strength of the rulings reported in 'Sheo Narain v. Hira', 7 All 535 (F B), 'Sakhlha Bibi v. Amiran', 10 All 472, 'Mahomed Zafar v. Mt. Taj Bibi', A I R (23) 1936 Oudh 250 and 'Ratan v. Ram Niwaz', 36 Ind Cas 799 (Oudh). These authorities have no bearing on the facts of the present case which are easily distinguishable. In 7 All. 535 (F B) the plaintiff purchased after he date of sale in dispute the property on the basis of which he claimed pre-emption. It was therefore, held that he had no right of pre-emption. In 10 All 472 it was contended by the vendee that the property on the basis of which pre-emption was claimed had gone out of the pre-emptors' ownership and possession after the date of the 1st Court's decree. The right of pre-emption was therefore defeated. It was held that it could not be defeated as events after the 1st Court's decree had no relevancy. In AIR (23) 1936 Oudh 250 the plaintiff acquired right to pre-empt the disputed property after the date of sale. It was held that he could not takeadvantage of it. in 36 Ind Cas 799 (Oudh) theplaintiff acquired property by virtue of which he claimed pre-emption after the date of sa.e which was the subject of pre-emption suit. It was held that the plaintiff was not entitled to a decree.
9. In the present case the vendee has not brought a suit for pre-emption. On the contrary he is resisting suit for pre-emption brought by others. Eight of pre-emption is a very weak right and can be defeated by any legitimate means. The policy underlying this law is that no stranger should be allowed to thrust himself upon the co-sharers in a property against their will. If, therefore, before the 1st Court's decree the vendee becomes just as much a co-sharer as the pre-emptor the latter can have no complaint that a stranger has thrust himself upon the property. Even if the vendee be deprived of the property under pre-emption he would remain a co-sharer all the same by virtue of the other property acquired by him after the sale under pre-emption. There would therefore be no sense in depriving him of the property under pre-emption. It is on account of this that it has been held in a number of cases of different High Courts that if a vendee becomes a co-sharer of an equal degree with the pre-emptor in the property under pre-emption by virtue of another transfer effected before the 1st Court's decree the pre-emptor can have no preference over the vendee. It was so decided in 'Beharilal v. Mohan Singh', AIR (7) 1920 AH 159. Tudball and Rafique JJ. held that a plaintiff pre-emptor in order to succeed must be entitled to pre-empt not only on the date of the suit, but also upto the date of the decree. Where therefore a vendee was a stranger at the date of the transfer, but after the institution of a suit for pre-emption and before the date of the decree, he became a co-sharer in the village the plaintiff would have no right to pre-empt and a suit must fail. In 'Hetram v. Dalchand', AIR (20) 1933 Lah 481(2) it was held that the plaintiff should show that he has the right on three important dates that is (1) the date of sale (2) the date of institution of the suit and (3) the date of the first Court's decree. In 'Noori Miyan v. Ambika Singh', 44 Cal 47 the same thing was held. In 'Hans Nath v. Ragho Prashad' A I R (19) 1932 P C 57 it was held that when a sale has taken place to a stranger the vendees' acquisition by gift of a share in the village pending a co-sharer's suit for pre-emption instituted before the passing of the Agra Pre-emption Act 1922, defeats that co-sharer's claim for pre-emption. The decisive date as regards the rights of the co-sharer to pre-empt is the date of the decree. Their Lordships quoted with approval the following passage from the judgment of the Privy Council in 'Digambaraingh v. Ahmad Saeed Khan', 42 Tnd App 10 at p 18:
'In all cases the object of a custom of pre-emption is as far as possible to prevent strangers to a village from becoming sharers in the village.'
Their Lordships further observed that if this object would not be attained by a decree in favour of the plaintiff pre-emptor, it may not unreasonably be held that such a decree should not be passed.
10. There is no doubt that in all these rulings excepting that reported in 44 Cal 47 the pre-emption was claimed on the basis of a custom. But from the reports it would be found that the decisions did not turn on the ground that the custom laid down that the suit for pre-emption would be defeated if the vendee acquired equal status with the pre-emptor between the date of sale and the date of the 1st Court's decree. The decisions were based on general principles that the plaintiff having either lost his status as a co-sharer before the date of the 1st Court's decree or the vendee having become a pre-emptor ofequal status with the pre-emptor before the date of the decree, the plaintiff could not be given any preference over the vendee. So far as the case reported in 'Noori Miyan v. Ambika Singh', 44 Cal 47 is concerned, it was a case under Muham-madan Law and is therefore a clear authority for the proposition that the plaintiff to succeed in a pre-emption suit should establish not only that his right existed at the date of the sale, but also at the date of the institution of the suit and the date of the decree of the primary Court. No doubt it looks very unsavoury that a defendant by his unilateral and voluntary act should defeat the plaintiffs' suit which was perfectly justified when it was brought and it appears to prevent such an undesirable result that recently statutory provisions have been made in the Agra and Punjab Pre-emption Acts disentitling the vendee to defeat a suit for pre-emption by virtue of a voluntary transfer in his favour during the suit, but that is mother matter. In the absence of any such safeguards the general principle shall prevail that the pre-emptor in order to succeed in a suit should prove his subsisting right against the vendee not only on the date of sale but also on the dates of suit and on the date of the 1st Courts' decree. This principle finds support also from Wilson's Anglo Mohammedan Law 6th Edition para 356 A on page 394. The learned author says that the co-sharer-ship, 'Participation in appendages' or ownership of contiguous property, as the case may be, must, not only exist at the time of the sale which gives rise to the claim of pre-emption but must continue to exist down to the time when the suit is instituted, and (it seems) even down to the decree of the primary Court.
11. The result is that the appeal of Gopichandfirst pre-emptor is dismissed but the two appeals ofMina Lal vendee are allowed the decree of thelower appellate Court is modified and the decreeof the original Court is restored. The vendee MinaLal shall get the costs of all the 3 appeals fromthe contesting pre-emptors.