Henderson, J. (Burkitt, J., concurring):— In this case it appears that on the 21st July, 1842, one Rai Singh sold certain land for Rs. 351. The sale-deed, after reciting that the price had been paid and possession given to the vendee, contained the following provision:—“If the said vendee should on another occasion sell the said property, then for the same price he shall sell to me the vendor, and in case of my refusal he shall sell to any other person.”
[339] On the 15th December, 1892, the representatives of the vendee, who had in the meantime died, sold a one-sixth share of the land to the defendants for Rs. 1,000 without giving the persons claiming to be the representatives of the vendor, who had also died, the option of purchasing the share.
In 1893 the plaintiffs, who are the daughter's daughter of the vendor 2 and her son, claiming to be the heirs of the original vendor, sued the defendants, the purchasers of the 1/6th share, to recover that share on payment of Rs. 58-8-0, that sum being a one-sixth of the original price.
The lower appellate Court dismissed the suit, and on an appeal preferred to this Court, it was held by another Bench that the provision in the deed to which we have referred amounted to a covenant running with the land and was binding upon any purchaser. It was also hold that the benefit of the covenant inured to the heirs of the original vendor, and that they would be entitled to sue upon the covenant, and the case was remanded to the lower Court for re-trial.
On remand the lower appellate Court found that the plaintiffs are both heirs of the original vendor, and has given them a decree for possession of the land on payment of Rs. 58-8-0.
The defendants have now appealed to this Court. The questions whether the plaintiffs (or either of them) are entitled to the benefit of the provision which has been held by another Bench of this Court to be a covenant running with the land, and whether that is provision binding upon the defendants, are not now before us, and we therefore refrain from expressing any opinion upon those questions.
The only points which are now open to us are whether the plaintiffs are the heirs of the original vendor, and whether, on the construction of the deed of sale, the price to be paid on a re-sale was the original price, or the price which an intending purchaser was prepared to give.
As to the first point, we think it is clear, on the authorities which have been quoted before us, and the learned vakil for the appellant at the end of the argument on the other side was forced to admit, that in the absence of preferential male heirs the plaintiff Ganeshi is heir to her maternal grandfather, the original [340] vendor. It has been found by the lower appellate Court, and the finding has not been challenged, that there are no preferential male heirs.
The other point as to the construction of the deed is not free from difficulty. On the whole, however, we are of opinion that the contract between the original vendor and vendee was that the price to be paid on a re-sale was the original price mentioned in the deed of sale. We therefore dismiss this appeal and affirm the decree of the lower appellate Court as far as the female plaintiff is concerned.
The added plaintiff, the son of the female plaintiff, has no title during his mother's life time, and is not entitled to a decree jointly with her. His suit must be dismissed, but, under the circumstances, without costs. Musammat Ganeshi is entitled to her costs in this Court.
Decree modified.