SHEO BALAK CHAUDHARI Vs. RAM SARAN CHAUDHARY

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for pre-emption. On 29th August 1927, a sale-deed was executed by one Jaisiri in favour of Sheo Balak and Ram Sunder. On 1 September 1928, a suit was brought by the plaintiff- respondents, plaintiffs 1 and 2 as well as by plaintiff 3, Hari Shankar, on the ground that they were co-sharers in the mahal; whereas the vendees were perfect strangers. At that stage there was no necessity for them to allege that there was any preferential right in the first two plaintiffs on account of relationship. During the pendency of the suit, namely, on 11 September 1928, the: vendees obtained some share in the mahal under an exchange which put them on the same footing as co-sharers with the plaintiffs. On this Ha ri Shankar applied to withdraw from the suit, and the other plaintiffs applied for the amendment of the plaint so as to base their claim on their preferential right, as they alleged them selves to be descended from the common ancestor of the vendor and were within four degrees of him. The plaint: was amended and Hari Shankar also. withdrew from the suit. The first Court decided the case on 8 April 1929, dismissing the claim. The lower appellate Court decreed the claim of the plaintiffs on 10 April 1930. In the meantime the Amending Act (Act 9 of 1929) had come into force on 27the January 1930 when the assent of the Governor-General was received.

(2.) The lower appellate Court has come to the conclusion that the withdrawal of Hari Shankar did not in any way affect the rights of the other plaintiffs and that by joining Hari Shanker in the suit they had under Section 21, Agra Pre-emption Act, reduced their old status and could not be regarded as more than mere co-sharers with the vendor. But the learned Judge has gone on to hold that the result of the amendment of Section 20 is that the defendants cannot claim to have acquired an interest sufficient to defeat the plaintiffs claim.

(3.) Before the amendment it was held by a Full Bench of this Court that although Section 20 was applicable only to transfers and acquisitions before the institution of the suit, Section 19 was applicable to acquisitions made during the pendency of the suit, and that accordingly if a vendee acquired the status of a co-sharer equal to that of the plaintiff after the institution of the suit and before the decree came to be passed, he could successfully defeat the plaintiff's claim. In the present case the defendants on 11 September 1928, became co-sharers and were on the same footing as Hari Shanker,, and inasmuch as the other plaintiffs had joined him in the suit, they were entitled to defeat the claim of all the plaintiffs. This right acquired by the vendees was a substantive right and extinguished the preferential right as against them.