Sir John Wallis. -

In this case Puran Singh, Lekhraj Singh, Amar Singh and Pirthi Singh, who were cosharers in the village of Bighepur, filed a suit for pre-emption of certain land which the defendant Muhammad Wajid Khan, who is the present appellant, had purchased in the village. The sole question in the case was whether the custom of pre-emption obtained in the village, and the Additional Subordinate Judge of Aligarh having found this issue in favour of the plaintiffs gave them a decree for possession on their depositing the pre-emption money in Court. They duly deposited the money and obtained possession in execution of the decree.

It was suggested for the first time before the Board that plaintiff 4, Pirthi Singh, who actually deposited the money in Court and obtained possession was the only plaintiff who executed the decree, and that the right of the other decree-holders and their legal representatives to execute had become barred by limitation. In their Lordships' opinion there is no foundation for this contention. The application for execution of the decree, which was signed by all the four decree-holders, stated that the money had been deposited by them and prayed that possession might be given to them. The execution proceeded upon this basis and in reply to objections subsequently raised by the defendant Pirthi Singh himself stated that the decree-holders had obtained possession. It is clear, therefore, that the deposit was made and possession obtained on behalf of all the decree-holders.

The defendant appealed to the High Court at Allahabad, making all the plaintiffs parties to the appeal. When the appeal came on for hearing Amar Singh, plaintiff 3 had been dead for about a year and his legal representatives had not been brought in the record. These facts were not brought to the notice of the Court, and the appeal was allowed to proceed on the footing that he was before the Court, and the appellate decree recites that he had been duly represented at the hearing, whereas in fact he had died and the authority to represent him had determined. Their Lordships are not in a position to say how this regrettable omission came about and will only observe generally that it cannot be too clearly understood that a practitioner who appears for several respondents, one of whom dies before the hearing of the appeal, owes a clear duty to the Court to bring to its notice if he is aware of it the fact that one of the respondents for whom he has entered appearance is dead and no longer represented by him. Had the Court been apprised of the fact, as it should have been, the questions now before the Board could have been decided at the hearing of the appeal and this subsequent litigation would have been unnecessary.

As it was, the surviving respondents allowed the appeal to be heard without objection in the absence of plaintiff 3 and his legal representatives, thus taking the chance of succeeding on the merits; and when they had failed and the decree of the lower Court had been reversed and the suit dismissed and the defendant had obtained formal restitution of possession in execution of the appellate decree, they joined with the representatives of the deceased, plaintiff 3, in putting in the application to the Subordinate Judge, which is the subject of this appeal to His Majesty-in-Council, objecting that the whole appeal had abated by reason of the representatives of plaintiff 3 not having been brought on the record within the time limited by law and that the appellate decree was a nullity and did not entitle the defendant to restoration of possession. They accordingly prayed that the order which the defendant had obtained without notice to them might be set aside and that they might be put in possession again.

On this application the Subordinate Judge ruled that the three surviving plaintiffs had no locus standi, as under the provisions of the Civil Procedure Code the appeal had only abated as to the deceased plaintiff, and the survivors were bound by the appellate decree. As against the representatives of the deceased plaintiff he held that by reason of the abatement the appellate decree was not binding on them and that they were entitled to possession in execution of the decree of the first Court, if the other plaintiffs acquiesced in the pre-emption money, which was still in Court, being paid to the defendant, which they did by their counsel at the hearing of the appeal from this order as stated in the judgment of Mukerji, J. In other words, he held that the defendant was not entitled to restoration of possession as against them if they were prepared to pre-empt him.

The defendant and the surviving plaintiffs both preferred appeals against this order and the defendant also applied to the High Court under O. 47, Civil P. C., for a review of the appellate judgment, and an order that the abatement should be set aside and the appeal re-heard in the presence of the representatives of the deceased respondent. The Court rejected the grounds for review put forward by the defendant and held that the allegation that there had been a conspiracy to conceal the death of the third plaintiff from the appellant was not made out, and that he knew of the death and had been guilty of laches. They accordingly refused to set aside the abatement and dismissed the application for a review of judgment.

Consequently, as regards the deceased plaintiff, the abatement stands and cannot be now questioned.

The appeals from the order of the Subordinate Judge subsequently came on for hearing when the two learned Judges differed, Mukerji, J. being of opinion that under provisions of the Code of Civil Procedure the appeal had abated as regards the deceased third plaintiff and no further, and that by virtue of the abatement his representatives were entitled to a one-fourth share of the property ; while Dalai, J. held that the whole appeal had abated and that the surviving plaintiffs also were entitled to be restored to possession. In consequence of this difference of opinion there was a reference under S. 98, sub-S. 2, Civil P. C. to another Bench, which held that the whole appeal had abated and that the appellate decree was incapable of execution.

In accordance with this answer to the reference the defendant's appeal, No. 202 of 1923, was dismissed, and the appeal of the surviving plaintiffs, No. 281 of 1923, was allowed, and they were restored to possession.

The defendant then obtained leave to appeal to his Majesty-in-Council from the order of the High Court dismissing his appeal No. 202 of 1923.

In dealing with the questions which arise in this appeal it is desirable in their Lordships' opinion to refer in the first place to the scope and nature of the present suit. Where the custom of pre-emption obtains in a village every cosharer has a right to pre-empt a stranger purchasing land in the village. When several cosharers desire to exercise this right, and there are differences between them as to their shares or priorities, they may join as plaintiffs in a suit for pre-emption against the stranger-purchaser, and may obtain in that suit a decision, not only as to their right to pre-empt, but also as to their rival claims and a decree, as provided in O. 20, Civil P.C., R. 14, sub-S. 2, in accordance with which each pre-empting plaintiff will be entitled in default of the others to pre-empt alone. On the other hand, two or more cosharers may simply sue the stranger-purchaser for preemption, as in the present ease, without asking the Court to adjudicate on their rival claims and may obtain a decree for possession on depositing the pre-emption money in Court. In their Lordships' opinion the effect of that decree is to establish, as against the defendant, the right of each of the plaintiff cosharers to pre-empt him and to entitle them to possession on depositing the pre-emption money, leaving them to adjust their shares and priorities among themselves, these feeing matters in which the defendant has no concern so long as the pre-emption money is secured to him.

This being the nature of the suit and the effect of a decree for the plaintiffs, if the defendant files an appeal from such a decree making all the plaintiffs-respondents, and one of the respondents dies before the hearing of the appeal and the appeal abates as against him, under the express provisions of O. 22, Civil P. C. Rule 4, sub-S. 3, read with R. 11, because his legal representatives have not been brought on the record within the time limited by law, and the appeal is heard in the absence of the legal representatives of the deceased respondent, and the decree of the first Court is reversed and the suit dismissed as against all the plaintiffs, it is clear that the legal representatives of the deceased respondent against whom the appeal has abated cannot be bound by the appellate decree and are entitled to exercise the right of pre-emption which the decree of the first Court established in his favour against the defendant, that is a right to pre-empt the whole. A stranger-purchaser cannot be required to submit to a partial pre-emption nor is he entitled to demand it ; and their Lordships are therefore unable to accept the view of Mukerji, J., in the High Court that in the circumstances of this case the representatives of the deceased plaintiff only became entitled to pre-empt one-fourth of the suit property, leaving the defendant in possession of the remainder. They do not find any satisfactory grounds on which such a limited right can be based.

These were substantially the grounds on which the Subordinate Judge ruled against the defendant, and their Lordships prefer this view to that taken by the majority of the learned Judges in the High Court that in this suit the abatement against the deceased plaintiff made it impossible to proceed effectively with the hearing of the appeal as against the surviving plaintiffs, and rendered the judgment and decree of the appellate Court passed in the absence of the representatives of the deceased plaintiff a complete nullity so that the surviving plaintiffs were entitled to be restored to possession in accordance with the decree of the first Court along with the representatives of the deceased plaintiff. With this view their Lordships are unable to agree.

In their Lordships' opinion the order of the Subordinate Judge was right, and the decree of the High Court dated 11th July 1924 ought to be set aside and in lieu thereof it ought to be declared that the representatives of the third plaintiff - fourth and fifth respondents here - are entitled to re-delivery of possession, on condition that the money deposited in Court should be made over to the appellant with the consent of all the other respondents within three months of the date of the order herein, otherwise the suit is to be dismissed ; but that there ought to be no costs either in the High Court or of this appeal, and any costs paid under the decree ought to be returned. Their Lordships will humbly advise His Majesty accordingly.

Decree modified.