MT QUDRAT-UN-NISSA BIBI Vs. ABDUL RASHID

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for pre-emption. On the 23rd November 1923, the sale sought to be pre-empted took place. The case is accordingly governed by the New Pre-emption Act of 1922, which came into force on the 17 February, 1923. The suit for pre-emption was filed on the 22nd November 1924. While that suit was pending in the first Court, the defendant obtained a deed of gift on the 8 April 1925 of another share in the property in the same mahal, and pleaded that the plaintiff had actually lost his right of preference over her. The Court of first instance held that under Section 19 of the Agra Pre-emption Act the plaintiff had lost his right, and accordingly dismissed the suit. On appeal the appellate Court has taken a contrary view. It has come to the conclusion that the interpretation of Secs.19 and 20 of the Agra Pre-emption Act is that the defendant cannot resist the plaintiff's claim unless she had acquired an indefeasible right in the mahal prior to the suit. On the question of fact the appellate Court has recorded a clear and categorical finding that the transaction of the 8 April 1925, was in reality a gift in its nature and not a sale. This finding must be accepted.

(2.) The question that we have to consider is whether by virtue of having obtained a share in the village by gift during the pendency of suit and before the decree, the defendant-vendee can defeat the plaintiff.

(3.) Undoubtedly, before the Pre-emption Act was passed, the law as interpreted by the Special Pre-emption Bench was that the plaintiff must have a subsisting right of pre-emption not only on the date of the sale and the suit, but also at the time of the decree. The result used to be that if, prior to the passing of the decree, the defendant acquired an interest by way of gift, which put him on an equal footing with the plaintiff the suit could not be decreed. We may refer to the case of Bihari Lal V/s. Mohan Singh AIR 1920 All 159. As the whole object of the constitution of the Special Bench had been to ensure a uniformity of decisions, the principle that the last crucial data was the date of the first Court's decree was followed in the case of Baldeo Misr V/s. Bamlagan Shukul AIR 1924 All 82. Though one of us there pointed out that: a possible view to take might have been that nothing which happens after the institution of a suit can alter the position of the parties.