1. This is a plaintiff's appeal arising out of a suit for pre-emption. The suit was instituted more than one year after the registration of the deed of sale, and the only question that arises for consideration in appeal is one of limitation.
2. The property sold consisted of a two pies undivided share out of a 4 pies share which constituted khewat No. 1 owned by Nathoo and Dasaiyan. Nathoo alone has sold his two pies share to the vendee. The interest sold is obviously a fractional undivided zamindari share. Such an undivided share cannot be owned and possessed separately and is therefore not capable of physical possession within the meaning of Article 10, Lim. Act.
3. This point is quite clear from the Full Bench case of Batul Begam v. Mansur Ali (1) which was affirmed by their Lordships of the Privy Council by a judgment reported in Batul Begam v. Mansur Ali (2). The same view has been followed in Umrao Beg v. Mukhtar Beg (3). The learned advocate for the appellant argues that because the two pie share had been leased for five years to a lessee Har Prasad, who was collecting rents for the shares from the tenants separately, the property became capable of physical possession.
4. We are unable to accept this contention as it is difficult to understand how the undivided share, which was incapable of physical possession would become one capable of physical possession merely because a lease of it for a fixed period has been granted.
5. It is unnecessary to consider in this case the further question whether interest in the property capable of physical possession when once leased out become incapable of physical possession.
6. The appeal is dismissed with costs including in this court-fess on the higher scale.
V.B/R.K
7. Appeal dismissed.