Alston, J.:— This appeal arises out of suit for preemption. The sale which gave rise to the alleged right took place on the nth of September, 1903. The present suit was instituted on the 10th of September, 1904. The court of first instance dismissed the plaintiff's suit on the 22nd of December, 1904, on the sole ground that the court-fee paid was insufficient. The District Judge confirmed this decree of the court of first instance on 11th April, 1905. On the 25th of March, 1907, the High Court set aside the decrees of both the lower courts holding that the court-fee was sufficient, and remanded the case to be disposed of on the merits. The only evidence of the custom of pre-emption was an extract from the wajib-ul-arz which provided that if any cosharer wanted to dispose of his share, he must in the first instance offer it to a co-sharer, and then he might sell it to a stranger. For the purposes of this appeal we must consider that at the time of the sale and of the institution the suit, and also at the dates of the decrees of the Subordinate Judge and the District Judge mentioned above, the plaintiff was a co-sharer and the defendant vendee a stranger. It however appears that on the 7th of January, 1906, the defendant vendee became a co-sharer in the village, and in the sense of the wajib-ul-arz was no longer a stranger. When therefore the case came back to the Subordinate Judge for decision on the merits the defendant vendee filed an amended written statement in which he set forth the sale to him of the 7th of January, 1906, and submitted that by virtue thereof he was not now a stranger and that the plaintiff's suit should be dismissed. This contention having found favour with both the courts below the plaintiff comes here in second appeal. From the the facts which we have stated, it will appear that the plaintiff had a good cause of action not only at the time of the sale and at the institution of the suit, but also at the time when decrees in his favour ought to have been made by the court of first instance and by the court of first appeal.
2. It is contended on behalf of the respondents that the present case is concluded by the ruling in Ram Gopal…(Defendant); v. Piari Lal…(Plaintiff).*(1). In that case however proceedings for partition were pending before the plaintiff's suit was filed, and the partition proceedings were completed before the court came to make its decree; with the result that the plaintiff had no longer the status which would entitle him to pre-empt the property. The court therefore dismissed his suit. It is necessary to point out that the facts of that case very materially differed from the facts of the present case. The plaintiff in the case cited had by virtue of the partition, which bound all persons in the village, lost his rights, and those partition proceedings had been instituted before the pre-emption suit was started. In the present case the plaintiff's position is just the same as it was when he instituted his suit. He was a co-sharer then and he is a co-sharer uow. It is the defendant vendee's position which has been altered. He has become a co-sharer, a status which he did not occupy at the date of the sale, nor at the date of the institution of the suit, nor at the date when a decree in favour of the plaintiff ought to have been made. The decision in Ram Gopal…(Defendant); v. Piari Lal…(Plaintiff).* was given on the 14th of June, 1899, and on the 15th of May of the same year a Full Bench of this court had before it much the same question in the case of Janki Prasad v. Ishar Das. In that case it was held that a person in order to enforce a right of pre-emption must fulfil the conditions, and the custom must subsist, not only at the time of the sale but also at the time when the suit is instituted. The Court however expressly declined to consider what the result would be where the plaintiff had fulfilled the conditions at the time of the institution of the suit, but was unable to fulfil them at the date of the decree. That being so, we think it extremely unlikely that a Bench of two Judges could have intended to decide the question which the Full Bench had left undecided, and in a case in which that question did not strictly arise. With the exception of the observations in the case of Ram Gopal…(Defendant); v. Piari Lal…(Plaintiff).* the decisions all seem to show that it has been the opinion of this Court that the date of institution of the suit was the crucial date; and that if the plaintiff was able at that time to fulfil the conditions necessary to entitle him to a decree a decree ought to be made in his favour. See the cases of Bhagwan Das v. Mohan Lal(2) Ram Hit Singh v. Narain Rai(3), Narain Singh v. Parbat Singh(4), Ghasitey v. Gobind Das(5), Serh Mal v. Hukam Singh(6), Nasir Ali v. Natho Bibi(7), Nabihan Bibi v. Kaleshar Rai(8). Even if we assume however that the plaintiff must fulfil the conditions of custom or contract at the date of the decree, the plaintiff in the present case did fulfil the conditions at the date on which a decree in his favour ought to have been made, namely on the 22nd December, 1904; and he continued to fulfil the conditions when the case came before the court of first appeal. We think that it would be contrary to all Justice to hold that because the court of first instance and the court of first appeal made an erroneous decision the plaintiff should be denied a decree which, it must be admitted, for the purposes of this appeal, he was entitled to. The learned counsel on behalf of the respondents has been obliged to admit that if the Subordinate Judge on the 22nd December, 1904, had made a decree in the the plaintiff's favour, no subsequent purchase of a share in the village by the defendant vendee could have interfered with the plaintiff's rights. We think that even if the date of the decree were to be considered as regulating the rights of the plaintiff pre-emptor, it must be the date on which a decree in the plaintiff's favour would have been made, but for the error of the court and not the date on which, the error having been corrected, the case came back to the court to be dealt with on the merits. Under the circumstances of the case we think it unnecessary to express an opinion as to what would have been the result if the plaintiff had lost his right of pre-emption by not fulfilling the conditions after the institution of the suit and before the case came back to the court for disposal in the ordinary course. We allow the appeal, set aside the decrees of both the courts below, and remand the case to the first court through the lower appellate court with directions to re-admit it to its original number in the register and to dispose of it on the merits. The appellant will have his costs in this court including fees on the higher scale. Other costs will abide the result.
3. Appeal allowed.