1. This second appeal arises out of a suit for pre-emption filed originally in the Court of the Munsif, Ratangarh, against the appellant by the respondents. On 15-9-1947, the appellant Rameshwar purchased for Rs. 700 the divided share of Bhurandin son of Jivanshah Kazi of Ratangarh in a house situated at Holidhora in Ratangarh under a sale deed which was registered on 16-9-1947. On 22-12-47 one Mt. Nasiban widow of Jamaldin, who held a third share in the said house, jointly with one Piria who, she alleged, was her adopted son, filed a suit against the vendee defendant 1 and the vendor defendant 2 for pre-emption of the suit property on the ground of being proprietor of a share of the whole house and on the ground of having a common door. The defendant resisted the suit on the following among other grounds: (1) That Piriya plaintiff 2 was (not?) the adopted son of plaintiff 1, Mt. Nasiban: (2) That plaintiff 1, Mt Nasiban, had mortgaged by conditional sale her own divided one-third share of the entire house to defendant 1 for Rs. 99 on 18-9 1947; (3) That the purchase of the suit property took place with the consent and in the knowledge of Mt. Nasiban who could not, any more, claim any right of pre-emption; (4) That the suit was defective inasmuch as Piriya, plaintiff 2, who had no right of pre-emption had been joined as a co-plaintiff; (5) that the plaintiffs were not possessed of enough means to purchase the suit property; and (6) That Mt. Nasiban had waived her right of pre-emption.
2. On the abolition of the Court of the Munsif, Ratangarh and establishment of the Court of Sub-Judge at Ratangarh, the suit was transferred to the latter Court on 22-3-1948. It may be mentioned here that the plaintiffs had filed two other similar suits against two other brothers of defendant 2 who also had sold their share in the whole house to the appellant on the same date. In all these three suits some questions are raised and the evidence adduced by the parties is also the same and the trial Court has decided all the suits by the judgment.
3. The trial Court came to the conclusion that Piriya plaintiff 2 was not the adopted son of Mt. Nasiban plaintiff 1, and that Mt. Nasiban had relinquished her right of pre-emption and dismissed the suit on 28-1-48. The plaintiffs, thereupon, went up in appeal to the District Judge, Churu, who has, though rejected the claim of Piriya and dismissed the appeals so far as Piriya was concerned, accepted the appeals and decreed the suits in favour of Mt. Nasiban plaintiff 1, on 24-3-1948. Rameshwar defendant 1, who is the vendee, has now come up to this Court in second appeal.
4. Neither the respondents nor anybody on their behalf appeared and contested the appeals which were heard ex parte. The following two main contentions have been raised on behalf of the appellants: (1) That Mt. Nasiban who had a right of pre-emption, having joined as a co-plaintiff with her another person Piriya -a stranger, who had no right of pre-emption could not claim any right of pre-emption and the suit must have been dismissed; and (2) That Mt. Nasiban had relinquished her right of pre-emption and the suit must have been dismissed on that ground also.
5. The trial Court has very elaborately discussed the evidence produced by the parties on the question of Piriya's being an adopted son of Mt. Nasiban. It has held that his alleged adoption was not proved. The learned District Judge has not disagreed with this finding of the Sub-Judge and has dismissed the appeals so far as Piriya is concerned. It was also found by the trial Court that Piriya had, jointly with his natural father, Shamsuddin sold his interest in the entire house to one Somedutta and should not claim in himself any right of pre-emption in the suit property. Very evidently, under the circumstances mentioned above, he is a stranger for the purposes of the suit for pre-emption meaning of term 'stranger' in relation to 'pre-emptor' being a person who has not the right of pre-emption. The relief claimed in the plaint as well as in the appeal was a joint one and Mt. Nasiban could not have succeeded without amending the plaint and the appeal and striking out the name of Piriya which does not appear to have been done. The plea on which this contention is raised appears to have been taken in the written statement on behalf of the appellant. The contention further appears to have been raised before the lower appellate Court which has dismissed the appeal so far as Piriya is concerned and passed a decree in favour of Mt. Nasiban with out any application on her behalf for amendment of the plaint and the appeal by striking out the name of Piriya. In Bhopal Singh v. Mohan Singh, 19 ALL. 324 : (1897 A. W. N. 72), their Lordships Banerji and Aikman JJ. of the Allahabad High Court have held that
'the very fact of a person having the right of pre-emption joining with himself strangers, i. e. persons who have no right of pre-empton, is in itself sufficient to estop him from asserting his claim.'
On the above authority, it is cear, that Mt. Nasiban, in this case before me, has forfeited her right of pre-emption. No application to strike out the name of Piriya has been made either to the Court of first instance or even to the Court of first appeal. Piriya's right has been asserted to the last though as a last resort, counsel for the plaintiff's may have suggested to the lower appellate Court to reject the appeal so far as Piriya was concerned and to decree the claim of Mt. Nasiban. This was not to be allowed: vide another judgment of the same High Court reported in Umar Daraz v. Sri Ramdas, A. I. R. (12) 1925 ALL. 355 : (47 All. 450) where it has been held that the joinder of a stranger as co-plaintiff in a suit for pre-emption was a fatal defect which could not be cured by striking out the name of the stranger. In my opinion, this contention on behalf of the appellant has great force and must succeed. I might mention that the case would have probably been different if any application had been made for amendment of the plaint to the Court of first instance or for amendment of the plaint and the appeal to the Court of first appeal.
6. Now, coming to the second contention, it must be said that the judgment of the lower appellate Court is based upon a reasoning which has no basis. The learned Judge has entirely ignored the direct sworn testimony of reliable persons Roopchand the scribe and Kaluram and Shankarlal, witnesses who have attested the deed of mortgage by conditional sale executed by Mt. Nasiban in favour of Rameshwar appellant under which she has mortgaged her share in the entire house and relinquished her right of pre-emption by saying that she had no right of pre-emption in the property of Bhurandin etc. This direct evidence was corroborated by the evidence of a hand-writing expert who said that the thumb impression on the aforesaid mortgage deed, though not very clear, and the admitted thumb impression of Mt. Nasiban were quite similar and of one and the same person. The learned District Judge has based his judgment mainly on the suspicious circumstances that the ink of the first two lines and of the signature of the attesting witnesses was different from the ink in which the rest of the deed was written, that after nine lines of the deed had been written on the stamp paper, the scribe felt the remaining space to be insufficient and therefore wrote the deed in lines very close to each other, that the thumb mark of Mt. Nasiban appeared from the deed to have been affixed before the sentence embodying the statement that she had no right of pre-emption was written, that the expert had admitted that the disputed thumb impression was not very clear and that it was only from some points of similarity in the disputed and the admitted thumb impressions, that the expert had testified that the two impressions were of one and the same person though he had to admit that there could be found some points of similarity in the thumb impressions of two different persons. The fact of difference between the ink of the signatures of the attesting witnesses and that of the main body of the deed had been sufficiently explained by Kaluram D.W. 6. The fact of difference between the ink of the first two lines and that of the rest of the body of the deed had been explained by the scribe Roopchand D.W. 8. As regards the circumstance of the thumb impression appearing to have been affixed before the writing of the said sentence, it seems that the idea of having her right of pre-emption relinquished by Mt. Nasiban struck after she had put her thumb mark. Even a cursory examination of the document shows that the ink with which is written the said sentence under which Mt. Nasiban is said to have disowned her right of pre-emption on the suit property is the same with which the rest of the deed is written and this fact when considered in light of the sworn testimony of the witnesses mentioned above leaves no doubt that it was written at the same time when the deed was executed. Moreover, it is not the case that Mt. Nasiban has admitted the execution of the deed by her but denied to have agreed to forego her right of pre-emption. On the contrary, she has altogether denied the execution of the deed which has been proved to have been executed by her. The mortgage deed having been proved to have been executed by her, it is fair to presume that she had agreed to forgo her right of pre-emption. So far as the evidence of expert is concerned it is pertinent that he has not been asked the straight question whether or not the disputed thumb mark could be of a person different from the person with whose thumb mark the former had been compared. Nor has any question been put to him as to the points of similarity that could be found on the thumb marks of two different persons and as to the existence of those points in the thumb marks in question. Under the circumstances, it is difficult to agree with the finding of the appellate Court. Besides, there is sufficient positive evidence on the record coupled with the admission of Mt. Nasiban to show that she is, not only, not possessed of sufficient means to pay the price of the property in question, but is also indebted and it would be only reasonable to come to the conclusion that she had relinquished her right of pre-emption to enforce which she had no means. To me the finding of the trial Court, on this point, appears to be correct. I, therefore, hold that it was proved that Mt. Nasiban had relinquished her right of pre-emption as a condition of the mortgage.
7. The conclusion is that this appeal succeeds. I therefore, accept this appeal with costs throughout, set aside the judgment and decree of the lower appellate Court and restore that of the Court of first instance by which the respondent's suit for pre-emption had been dismissed.
8. Attention of the subordinate civil Courts in the territory of the former State of Bikaner is drawn to the mandatory provisions of Section 17, Bikaner State Pre-emption Act, I  of 1919 under which it has been made obligatory for the Court to require the plaintiff at or at any time before, the settlement of issues, to deposit in Court such sum as does not exceed one-fourth of the price paid by the vendee for the property according to the deed of sale, such sum being available for the discharge of costs. Both the trial Court as also the Court of first appeal have, in this case, failed to comply with the very salutary requirement of law.