GOVIND SINGH Vs. MANGLU

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption of property transferred under a sale-deed dated 3 August 1925. The suit was instituted on 1 July 1926. During the pendency of the suit the Vendees obtained a share in the village from the vendor Sukhdeo under a deed which was ostensibly one of gift and was dated 3 September 1926. A second suit for pre-emption was instituted to pre-empt the gifted property on the allegation that the transaction was really one of sale. The connected appeal arises out of that suit.

(2.) The first Court found that the ostensible gift was a colourable transaction, but at the same time it decreed the claim for pre-emption. The appellate Court has found that the gift was a transaction of gift and was neither fictitious nor was it a transaction of sale. We are bound by the finding of fact of the lower appellate Court. It has dismissed the suit on the ground that the vendee had become a cosharer on the same footing as the plaintiff by virtue of this gift.

(3.) In appeal it is contended before us that the gift was made by Sukhdeo of a share in his ancestral property when he had sons alive and was therefore invalid. It is accordingly contended that the defendants had not acquired such title as to enable them to defeat the plaintiff's claim. In a case where the purchaser has acquired an interest in the mahal prior to the institution of the pre-emption suit it is incumbent on him to establish that he has acquired an indefeasible interest (S. 20). The Full Bench in the case of Ram Saran Das V/s. Bhagwat Prasad has held that 8. 20 does not apply to a case where the gift is taken after the institution of the suit; but that the same result follows by virtue of the provision of Section 19, and a purchaser who has become a cosharer by virtue of a gift taken during the pendency of the suit can successfully resist the plaintiff's claim for pre-emption. In view of this pronouncement it seems to us that such purchaser also must show that he has acquired an indefeasible interest otherwise an illogical result will follow, viz., that a purchaser who takes a gift before the suit would not be entitled to defeat the claim unless the interest taken is indefeasible, but a purchaser taking a gift during the suit need not show that he has acquired an indefeasible right. We have therefore to see whether the interest acquired by the purchaser is an indefeasible interest or whether it is defeasible.