Nawal Kishore, J.:— This is a first appeal by the plaintiff Mohanlal of Ladnu and arises out of a suit for pre-emption which was dismissed by the learned District Judge, Nagaur.

2. On 16th of March, 1943 Ganpatia and others mortgaged by conditional sale the house in dispute situated at Ladnun in favour of Rasula and his son Hasan for Rs. 1000/- at Rs. 1/9/- per cent per mensem on account of interest. It was stipulated in the mortgage deed that in case the mortgagors failed to redeem the mortgage by repaying the mortgage money within two years, the house will be deemed as having been sold to the mortgagees. This period of two years expired on 16th of March 1945 but nothing seems to have transpired on that day or thereafter till 6th of June 1947 when the mortgagees obtained a Patta for the house in dispute. On 12th of August 1947, Mohan Lal sued for possession of this house by pre-emption on the ground that it touched his house towards the north. The defendant Rasula for himself and as the guardian of his son Hasan resisted the suit and pleaded that he had a superior right of pre-emption as while the plaintiff's house touched the house in dispute on the back, his house touched it both on the west and the south. He also pleaded that the suit was barred by limitation. The two important issues arising out of these pleadings were issues Nos. 1 and 2. The learned District Judge found that though the suit was within limitation, the defendants had a superior right of pre-emption. He accordingly dismissed the suit.

3. The defendants' plea as regards their having a superior right of preemption was based on the allegation that they had purchased a house from Chhagana, Malia and Sadasukh on 27th of January 1944 and that this house touched the house in dispute towards the west and the south. Three important questions were agitated in connection with this allegation in the Court below:—

(1) That execution of the sale-deed Ex. D-1 by Chhagana and others in favour of Rasula and his son had not been proved on the record.

(2) That even if the execution of the aforementioned sale-deed was held to have been proved, the house purchased by the defendants did not adjoin the house in dispute.

(3) That in any case, the vendees were not competent in law to improve their position after the date of the sale of the house in dispute.

4. Lengthy arguments have been addressed at the Bar in connection with the above mentioned questions and a large number of authorities cited on the last mentioned point. While the first two questions are questions of fact, we propose to deal with the third question first. It raises an interesting point of law but the correct position does not appear to be in doubt at this time of the day. At one time the view was that where a case for pre-emption is well-founded with reference to the state of things which existed at the time of sale, that cause of action viewed as a valid ground of claim cannot be lost or affected by reason of a new circumstance coming into existence after the sale. There was a Full Bench judgment incorporating the above view reported as 91 P.R 1909 1.. Rattigan, J. however wrote a dissenting judgment. This view was contrary to the view which prevailed in 124 P.R 1907 2., where it was held that a vendee can better his position, as for instance, by other acquisitions which give him an equal right with the pre-emptor between the date of the sale in dispute and the institution of the pre-emption suit. So far as the Lahore High Court is concerned, there is no point in pursuing the history of this matter as an authoritative pronouncement is contained in a Full Bench judgment of that Court reported as 1941 Lah. 433 3.. In this judgment, 91, P.R 1909 was expressly over-ruled and it was held that it cannot be said that the date of sale is the only crucial date for the purpose of determining the right of the pre-emptor to oust the vendee or that it prohibits a vendee from defeating the right of a pre-emptor in any legal manner that may be available to him at any later period. The Allahabad view as reported in 47 All. 424 and 48 4. All. 616 5. has consistently been on the same lines as that taken in the Full Bench judgment of the Lahore High Court. The principle of law on which it is based is that the plaintiff must have a subsisting right of pre-emption not only on the date of the sale but also on the date of the suit and if before institution of the suit, the vendee acquires an interest which puts him on an equal footing with the plaintiff, he can defeat the plaintiff's right and the suit cannot be decreed. It was recognized that a right of pre-emption could be defeated by legitimate methods known to law and one of these methods was to obtain a preferential or equal right by acquisition of some interest in the property in dispute or of some other property. To the same effect are also 1934 Oudh 803 and 1947 6. M.L.R 45 7.. This view was approved by their Lordships of Privy Council in 1932 P.C 57 8.. In the case before them, it was contested that the vendee was at the time of the suit a co-sharer in the village and that the acquisition of the share after the pre-emption sale but before the institution of the suit was effective to defeat the claim for pre-emption. Their Lordships went on to hold further that the same reasoning should be applicable in the case of a share-acquired at any time before the ad judication of the suit. The only authority cited by the learned counsel for the appellant in favour of the proposition that the crucial date in such matters is the date of the sale, is reported as 1942 Pesh. 45 9. and it was sought to be supported on the ground inter alia that if any other date than the date of the sale were to be taken, the whole law of pre-emption could be made a nullity. While this view is contrary to the mass of authorities of all the High Courts, it may be pointed out with respect that it is open to the vendee in law to take advantage of every weapon available to him to defeat a person whole sole object is, in the words of 1941 Lah, 433 (1) to unsettle a transaction legally entered into. The further observation in this judgment is that their Lordships of the Privy Council did not declare in 1932 P.G 57 (6) that there was anything fundamentally wrong in a vendee improving his status subsequent to the sale in order to ward off a pre-emptor. In view of the above, there seems to be no escape from the conclusion that the plaintiff-pre-emptor can lose his rights by the deterioration of his own right and the appreciation of the vendee's rights before the suit is brought. Under the Marwar preemption Act, there can hardly be any doubt or difficulty inasmuch as according to section 7, the plaintiff can enforce his right of pre-emption only if it is in existence at the date of the suit as is clear from the following words with which the section begins:—

“Any person entitled to a right of pre-emption may bring a suit to enforce such right.”

This clearly signifies that the right must exist when the suit is instituted. In the circumstances, the contention of the learned counsel for the appellant that since Rasula purchased his house from Chhagna on 27th of January 1944 which is after the date of the sale of the pre-empted property, he should not be deemed to have a superior right of pre-emption must be rejected as without any force.

5. The next question which has been argued is that the sale-deed, Ex. D. 1, had not been proved to have been executed, and accordingly the question whether the vendee had come to acquire a superior right of pre-emption to that of the plaintiff was of academic importance. It may be pointed out that Ex. D-1, the sale-deed in favour of Rasula and his son purports to have been executed by Chhagna, his son Maliya and one Sadasukh. The defendant Rasula has not gone in the witness-box nor have the vendors or the attesting witnesses been produced. D.W 4 Sonia is the only witness who refers to this matter & all he stated is that he was present when Chhagna executed the sale-deed in favour of Rasula. The learned District Judge was under the impression that D.W 3 Ganpat had also identified Chhagna's signature on the sale-deed but that is incorrect. Even the statement of D.W Sonia does not carry matters very far. The learned District Judge held the execution of this document proved principally on the ground that it had been duly registered and that the registration of a document was sufficient proof of its execution. The learned counsel for the appellant has questioned the correctness of this view and urged that the endorsement by the Registrar of a document is legally insufficient proof of the execution of that document and cited 1942 Nag. 84 10. in support of this view. As is clear from a note in Monir's Commentary on the Evidence Act (3rd Ed. page 552) several other courts have also taken the same view, but the Privy Council has definitely held that the evidence of due registration may itself be evidence of the execution of a document. See in this connection 33 Cal. 537 11. (P.C). The learned counsel for the appellant when faced with this view urged that before the Registrar only Chhagna appeared and admitted execution of the document but not Sadasukh. We do not know who this Sadasukh is but it is clear that Chhagna and Sadasukh were co-owners in this property and in the absence of partition, their ownership extended to every portion of the house. Accordingly, even if the registration of the document may be held to be proof of its execution only qua Chhagna, so far as this case is concerned it will not make any difference and Rasula will still be held to have acquired a superior right of pre-emption provided, of course, this house adjoined the house in dispute.

6. The last question which has been argued in this appeal is that the house purchased by Rasula did not adjoin the house in dispute.

7. It has been found by the court below that the house purchased from Chhagna and others touched the house in dispute towards the west and the south. The learned counsel for the respondent has placed on the record a plan showing the situation of the house purchased by Rasula after the sale of the house in dispute and its correctness has been admitted by the learned counsel for the appellants in the petition preferred by him during the pendency of this appeal. A comparison of the measurements mentioned in the plan with those stated in the sale deed shows that the finding of the court below that the house purchased by Rasula touched the house in dispute towards the west and the south is correct. In the circumstances the contention of the learned counsel for the appellant to the contrary has not been substantiated.

8. The learned counsel for the respondent wanted to support the decree passed in his favour by arguing that the plaintiff's suit was barred by time. It was a case of a mortgage by conditional sale which came into existence on 16th of March 1943. According to a stipulation in the mortgage-deed, the property was to be deemed to have been sold to the mortgagees if it was not redeemed within two years. The period of two years expired on 16th of March 1945. It was accordingly urged that since the suit had not been filed within One year from this date according to Article 10 and was actually filed on 12th of August 1947 it was barred by time. The learned counsel contended that the condition should be deemed to have become absolute automatically on 16th of March 1945 when the period of two years stipulated in the mortgage deed expired. This, however, is not a correct view inasmuch as in order to convert the mortgage into a sale, it is incumbent on the mortgagee to resort to some overt acts in the nature of a suit etc. and until this is done, the mortgage cannot definitely be said to have terminated and until that happens, the period of limitation for the institution of a suit for pre-emption will not start running. In this case, the overt act on the part of the mortgagee to which the mortgagors seem to have submitted was the obtaining of a Patta on 6th of June 1947 and counting the period of limitation from the date, the suit is within time. To such a case it is Article 120 of the Limitation Act which will supply and not Article 10 as held by the learned District Judge. Accordingly, in our opinion, the suit has rightly been held to be within time.

9. As a result of the view taken by us, since the vendees had acquired a superior right of pre-emption before the institution of the suit, this appeal fails and is hereby dismissed with costs.