Nawal Kishore, J.
1. This is a second appeal by the plaintiffs and arises out of a suit instituted by them for possession by pre-emption.
2. The property in dispute is a house marked A in the plan Ex. P. W. 1 on the record. It was sold by Partap Mal on 13-10-1944 to Mohammed Bux and the latter sold it again on 28.9 1945 to Bhanwar Lal; and his three sons Madan Lal, Paras Mal and Prakash Chand and his daughter Mt. Sunder Bai. In the meanwhile, Bhanwar Lal purchased house marked C in the plan in his own name and that of his sons Madan Lal, Paras Mal and Parkash Chand adjoining the house marked A from Bansi Lal on 23-5-1945. There is another house marked B in the plan which had been purchased by Bhanwas Lal in the name of his wife Mt. Mansukhi Bai. Thus, on 1 10-1945, when the plaintiffs Suraj Mal, Shikhar Chand and Nauratan Mal instituted the suit to pre-empt the sale of house marked A in the plan, Bhanwar Lal was already the owner of houses marked B and C as well. Accordingly, it was pleaded by him that since these two houses adjoined the house marked A on two sides and the area of these houses touching house A was much larger than that of the plaintiffs' house, he had a right of pre-emption superior to that of the plaintiffs. A reference to the plan will show that the defendants' house touched the house at G, H, J, K, L and M while the plaintiffs' house touched it only at B and F. The plaintiffs filed a replication stating that the houses B and C had been purchased after the Sale of house A and, therefore, the vendees having improved their position after the sale of the disputed house could not be said to have a superior right of pre-emption. It was further pleaded that Mt. Sunder Bai, daughter of Bhanwar Lal, who was associated in the purchase of the house in dispute was a stranger so far as ownership of houses B and c was concerned and accordingly the vendees on account of the introduction of a stranger had given up their preferential right of pre-emption in dispute. The trial Court decreed the plaintiffs' suit bat the learned District Judge on appeal dismissed it holding that it was open to the vendees to improve their position at any time before the date of the suit and further that Mt. Sunder Bai was only a minor and since the purchase had been mad) by Bhanwar Lal with his own money, the transaction in the name of Sunder Bai was merely Benami and, therefore, did not affect the defendants' superior title.
3. In this appeal the learned counsel for the appellants has contested the finding of the learned District Judge on both the points. So far as the first question is concerned, we have held in Mohan Lal v. Rasula, civil Appeal No. 5 of 1949: (A. I. R. (38) 1951 Raj. 117) after a review and discussion of the various authorities cited at the bar that there was nothing fundamentally wrong in a vendee improving his status subsequent to the sale in order to ward off a pre-emptor. Reference may be made to Hans Nath v. Ragho Prasad Singh A. I. R. (19) 1932 P. C. 67 : (54 ALL. 189) where the above proposition was enunciated. The learned counsel for the appellants relied upon Amirul Mulk v. Mir Sayad, A. I. R. (29) 1942 Pesh. 45: (201 I.C. 230) but we have already discussed this judgment in the case referred to above and have taken a view which is in consorance with the authorities of all the High Courts. Under the Marwar Pre-emption Act as well, according to Section 7, it is open to the plaintiff to enforce the right of pre-emption only if it is in existence at the date of the suit. In the circumstances, if the right is lost because the vendee has improved his position, the suit must fail.
4. The learned counsel for the appellants next argued that since the property in dispute had been purchased in the name of Mt. Sunder Bai, she must be deemed to be the owner of it and, there. fore, stranger to property marked B and C on the plan, On this point the learned District Judge has come to the conclusion after reference to the evidence on record that the property had been purchased by Bhanwar Lal with his own money and that accordingly the name of Sunder Bai was mentioned only as benami. Apart from the statement of Bhanwar Lal, there are also statements of Madan Lal and Paras Mal which support the fact that Bhanwar Lal had paid the money and was alone the actual purchaser of the property. The learned counsel, however, urges that even though the money had been paid by the father, if the transfer is in favour of the child, an intention to benefit the latter must be presumed. This is however, not in accordance with the law prevailing in India, as held in Sahdeo Karan Singh v. Usman Ali, A. I. R. (26) 1939 pat. 462 : (184 I. C. 113). In England if the transfer is in favour of the wife or child of the person who provided the consideration, the law presumes an intention to benefit the wife or the child. In India, however, where the property is purchased by the father in the name of his son and the latter claims it as his own by alleging that the father intended to make a gift of the property to him, the onus rests upon him to establish such a gift. The presumption in India, therefore, is in favour of the transaction being benami as held in Jai Kishen v. Parmeshri Was, A. I. R. (24) 1937 Lah. 471 ; (171 I. C. 856).
5. Under the circumstances, we agree with the view taken by the learned District Judge and hereby dismiss the appeal with costs.
6. I agree.