Boys, J.:— The following question has been referred to the Full Bench:—

“Whether on a true interpretation of sections 19 and 20 of the Agra Pre-emption Act of 1922 the defendant vendee can defeat the plaintiff's right of pre-emption, which undoubtedly existed at the date of the institution of the suit, by acquisition of an interest equal or superior to the plaintiff's in the mahal after the institution of the suit but prior to the passing of the decree by the first court?”

The reference to section 19 in the question is inserted in manuscript after the referring order was typed. This subsequent insertion we note only because the discussion of the question in the referring order is confined to the effect of section 20 of the Act, and no opinion has been expressed in that referring order in regard to the effect of section 19. We have, however, manifestly to consider both sections.

In the present case the facts are that Ram Sarup on the 26th of March, 1924, sold a zamindary house to the defendant Ram Saran Das, who at the time of the sale was not a co-sharer.

On the 25th of March, 1925, Bhagwat Prasad by virtue of his right as a co-sharer brought a suit for preemption against Ram Saran Das, the vendee, and Ram Sarup the vendor. On the 7th of April, 1925, that is subsequent to the filing of the suit, but prior to the decree, Ram Saran Das, the defendant vendee, obtained a gift of a share in the mahal. It will be noted that this suit was brought under the Agra Pre-emption Act of 1922, and one of the questions, in fact the main question, with which we are concerned is whether the Act altered the law as it is admitted to have previously existed.

Both courts decreed the plaintiff's suit, repelling the defendant's contention that he could defeat it because he had become a co-sharer before the decree by virtue of the gift to him.

The defendant has appealed and on his behalf it has been contended that by virtue of section 20 of the Act of 1922 a subsequent gift to him after the filing of the suit but before the decree defeated the plaintiff's right and the suit should have been dismissed. Reliance appears to have been placed on behalf of the defendant on section 20 throughout, and his counsel did not apparently intend to rely at all on section 19, until reference to that section was made by the Court at the hearing before us. This will no doubt also account for the fact that the applicability of section 19 is not discussed in the referring order, and that mention of that section only finds subsequent place in the question referred. The explanation of this is probably to be found in the fact that section 20 was interpreted in a sense to some extent favourable to the defendant in Qudrat-un-nissa Bibi v. Abdul Rashid . No attention appears to have been directed to the fact that case is also authority for the proposition that section 19 must also be interpreted in a sense favourable to the defendant, even if section 20 would not help.

As the case now is before us for judgment we have to consider the effect of both sections. It is admitted on all sides that according to the previously existing law a gift to the vendee, though subsequent to the date of suit, would, if prior to the decree, defeat the right of the plaintiff pre-emptor and his suit would have to be dismissed. That is how the law undoubtedly stood before the passing of the Act of 1922. A reference has been made in the referring order to the view expressed by me in Haji Sultan v. Masitu . In that judgment I referred to the fact that the cursus curiae in defendant's favour involved a departure from the ordinary principle that a plaintiff's right should be determined by the state of affairs existing at the date of suit. I said: “There is obviously something to be said in support of this departure from the ordinary rule of regarding the date of suit as the crucial date, but it is a dangerous departure. I think that its extension to further cases is one to which I should be very loath to assent without full consideration. These observations are only necessary because I want to guard against the suggestion that anything and everything that occurs subsequent to the date of a suit may similarly be taken into consideration. I agree with the order proposed.” I have quoted this passage in full because the remarks are referred to in the referring order as throwing doubt on the cursus curiae. It is, however, apparent from the passage that I have quoted that though I disliked, and, I may add, would not have been a willing party to the establishment of such a cursus curiae, I acknowledged that it already existed and agreed to follow it. It is quite a different matter that we have got to consider. The case before the court in Haji Sultan v. Masitu was a case prior to the Act of 1922, and we had not got to consider in that, nor did I consider in that, the effect of the new Act of 1922 which was not applicable to the case then before us, or the question whether that Act amended the law or codified it as already existing.

To turn now to the Act itself. The defendant relied, as I have said, on section 20. He contended that there was nothing to show that section 20 was intended to alter the law, and that it covered not only acquisitions prior to the suit but also acquisitions subsequent to the date of the suit. Section 20 reads, so far as is material for the present case:—“No suit for preemption shall lie where the purchaser… has acquired an indefeasible interest in the mahal which, if existing at the date of the sale or foreclosure, would have barred the suit.” It was contended that because the words “prior to the institution of such suit” did not appear in the second portion of the section and did find place in the first portion subsequent to the word “has” where it first occurs, therefore it must be taken that the omission of those words in the second portion indicates that the second portion was intended to protect the vendee even though the interest he had acquired was acquired subsequent to the date of the suit. In Qudrat-un-nissa Bibi v. Abdul Rashid the contention that section 20 permits a defence only when prior to the institution of the suit a purchaser has transferred property or has acquired an indefeasible interest in the mahal was rejected. It is, however, in my opinion, manifest that the words “No suit for pre-emption shall lie” are sufficient and clear indication that judgment upon the rights of the parties must be passed on the basis of the facts existing at the date of the suit. That the section might, grammatically speaking, have been more happily worded is beyond doubt but it is equally beyond doubt that as worded it will only entitle the defendant to rely on an acquisition made prior to the date of suit.

Counsel for the defendant appellant then, practically upon the insistence of the Court that he could not succeed relying upon section 20 but might possibly succeed relying upon section 19, fell back upon that section. The next question, then, is whether section 19 has altered the law as it existed before the Act of 1922, or whether it still permits the defendant to fall back upon the acquisition of an interest between the suit and the decree as defeating the pre-emptor's right. The material words in section 19 are “No decree for preemption shall be passed in favour of any person unless he has a subsisting right of pre-emption at the time of the decree.” Prior to the passing of the Act it is admitted that the plaintiff pre-emptor would in face of the authorities have had no “subsisting right.” It is clear that the Act was an Act intended “to consolidate and amend the law” (see the preamble). But it is also beyond doubt that if the law was clearly established in one sense by a well-known cursus curiae, we cannot conclude that there was any intention to alter the law unless that intention was clearly expressed. If the law has not been altered then the plaintiff pre-emptor had no “subsisting right” at the date of the decree; his right had been defeated by the gift to the vendee prior to the decree. How then can he be said to have lost his “subsisting right” by anything appearing from the, Act?” I suggested to the plaintiff respondent's counsel, and he of course accepted the argument, that possible inference might be drawn from the wording of section 20. That section makes it clear that the acquisition of an interest prior to the date of suit barred the plaintiff pre-emptor's right. It might not unreasonably be argued that the failure to embody in that section the defeat of the plaintiff pre-emptor's right by an acquisition subsequent to the date of suit, embodying the law as previously existing, suggests an inference that the legislature did not intend to embody that portion of the law previously existing that subsequent acquisition would defeat the plaintiff pre-emptor's right, and by the omission intended to indicate that the rights of the parties should be governed by the general principle that judgment must be passed on their rights as existing on the date of suit. There is something to be said for this contention, but I agree that it is too slight a foundation on which to base the conclusion that the legislature intended to amend the law, and that the plaintiff pre-emptor's subsisting right must be held to have been defeated. Similarly there is an apparent want of proper sequence in the rights of parties at the date of suit being declared in a section which follows that declaring the rights of parties at the date of the decree; and from this it is suggested that an inference may be drawn that section 19 was intended to deal with the loss of rights by a change in the position of the pre-emptor and section 20 with the loss of the pre-emptor's rights by a change in the position of the vendee. But here again the foundation is too slight upon which to found, even with the aid of the inference with which I have just above dealt, the conclusion that the legislature intended to alter the law. It appears to me therefore that, though I still unwillingly subscribe to the view that a plaintiff's right can be defeated by something done subsequently to the date of suit, by the vendee, I must hold that the legislature knew what the law was prior to the Act as established by the cursus curiae, and that if it had intended to amend that law it would have done so in express words.

As the law stands, a plaintiff may go into court with absolute honesty and stating absolutely the whole true facts and may have an undoubted right to a decree, and then after he has incurred possibly much trouble and expenditure, the defendant by securing a gift to himself of a small share in the mahal may render the bona fide expenditure of time and money incurred by the plaintiff fruitless. That is, however, a question of what is expedient and proper and not an answer to the question how the law stands.

I would hold, therefore, that section 20 is not concerned with the effect of acquisitions subsequent to the date of the suit, but that the law as laid down in section 19 of Act No. XI of 1922 is that a defendant vendee can, by obtaining a gift to himself of a share in the mahal subsequent to the date of suit and prior to the decree defeat the plaintiff pre-emptor's right. “With this answer I would return the reference.

I may add that since writing this judgement I have Trad the advantage of seeing the judgement of Mr. Justice King and I agree with him in the view expressed therein as to the right of the court to consider in the case of this Act, at any rate, the marginal notes to the sections.

King, J.:— I agree with Mr. Justice Boys that the plaintiff's right to a decree for pre-emption has been defeated by the provisions of section 19 of the Agra Preemption Act, 1922, and not by the provisions of section 20. As the reasons which lead me to the same conclusion are not precisely identical with his, I think it desirable to state my views.

In this case the plaintiff had a right of pre-emption up to the date of the institution of the suit. After the institution of the suit, but before the passing of the decree, the purchaser (defendant No. 1) acquired in the mahal an indefeasible interest which gave him a right of pre-emption equal or superior to that of the plaintiff. The question is whether in these circumstances the plaintiff's right to a decree for pre-emption was defeated under section 19 or section 20 of the Act.

The object of the Act, as stated in the preamble, was to consolidate and amend the law relating to preemption. It is important, therefore, to bear in mind the previous law when we have to construe the provisions of the Act.

It is admitted that under the law administered before the commencement of the Act no plaintiff in a preemption suit could obtain a decree unless he could show a subsisting right of pre-emption, firstly at the date of the sale, secondly, at the date of the institution of the suit, and thirdly at the date of the decree. In the present case the plaintiff had a right of pre-emption up to the date of the institution of the suit, but he had no subsisting right of pre-emption, in the sense in which that expression was understood in the previous law, at the date of the decree, because the purchaser had by that time acquired a pre-emptive status equal or superior to that of the plaintiff. The plaintiff therefore would not have been entitled to a decree under the previous law.

The appellant (the purchaser) contends that the same rule of law holds good under the present Act. I think his contention is correct, but the ground upon which he bases his contention is wrong. In the courts below the purchaser relied entirely on section 20 of the Act in support of his contention. His learned counsel adopted the same attitude before the Division Bench which made this reference. The result was that in the referring order there is no discussion of the question whether section 19 does not govern the decision of the appeal. It was assumed that section 20 was the only section applicable. It is difficult to understand why the appellant's learned counsel failed to rely upon section 19 when he could have quoted the most recent rulings of this Court in support of his contention. In any case, it is clearly necessary for us to consider the effect of section 19 as well as of section 20.

I agree with the view expressed by Mr. Justice Boys and by the referring Bench that section 20 does not help the appellant. The relevant words of that section read as follows:—“No suit for pre-emption shall lie where the purchaser… has acquired an indefeasible interest in the mahal which, if existing at the date of the sale, would have barred the suit.”

The mere fact that the words “prior to the institution of such suit,” which occur in the first portion of the section, cannot grammatically be read into the second portion does not, in my opinion, affect the result, although I agree that the meaning might have been better expressed. I think the section enacts the old rule that the plaintiff must have a subsisting right of pre-emption at the date of the institution of the suit. The section mentions certain events which would bar the institution of the suit and I take it as referring necessarily only to events that have taken place before the institution. I do not see how the institution of the suit can be said to be barred by an event that has not taken place before the institution. To my mind the language of the section clearly applies only to the acquisition of an interest before the institution of the suit.

If any doubt remains, it should be set at rest by a reference to the marginal note. The question whether a marginal note can be referred to for an exposition of the meaning of a section depends upon whether the note has been inserted by, or under the authority of, the legislature. This principle is apparent from the reasons given in the leading case of Claydon v. Green , which lays down the old rule observed by the courts in England, that marginal notes ought not to be relied on in interpreting an Act of Parliament. “At the time when that Act (the Alehouse Act, 1828, 9 Geo. IV c. 61) passed, the Parliament roll had no marginal notes or punctuation, nor were the statutes separated into sections. We cannot, therefore, look at the marginal note for an exposition of the meaning of the section. Indeed it is difficult to see how the marginal notes could ever be used in the construction of Acts of Parliament, seeing they are not put there by the legislature or assented to by them.”

It seems that since 1849 marginal notes do appear on the rolls of Parliament, and there has been some conflict of judicial opinion whether marginal notes may be referred to when the true meaning of a section of an English statute enacted after 1849 is in doubt. The conflict of opinion, however, arises solely from the uncertainty existing in the minds of the Judges on the point whether the marginal notes can be considered to have been inserted with the assent of the legislature. All the English rulings which I have seen referred to on this point clearly imply, or expressly hold, that marginal notes can be referred to for the purpose of interpretation if they can be regarded as inserted, or assented to, by the legislature. It would indeed be quite unreasonable, in my opinion, to take the contrary view.

The question then arises how far the marginal notes in the Agra Pre-emption Act can be regarded as inserted, or assented to, by the legislature. The answer depends upon the practice followed by the United Provinces Legislative Council in matters of legislation at the time when the Act was passed. On this point I am able to speak from personal knowledge, having been a member of the United Provinces Legislative Council in the capacity of Legal Remembrancer or Deputy Secretary or Secretary of the Legislative department for several years, including the period when this Act was passed.

I speak of the practice followed during the term of office of the first President of the reformed Council.

In the first place, every Bill is drafted with marginal notes. The practice of inserting marginal notes is expressly required by the instructions issued by the Government of India for statutory drafting, and has been in force in this province for many years. Every Bill is therefore introduced in the Council with a marginal note annexed to each clause. Even at the first stage, when the general principles of a Bill are under discussion, I have known a non-official member of the Council to criticize severely the drafting of a Bill owing to a mistake in a marginal note. I merely mention this fact as showing that the members of the Council do not consider marginal notes to be outside the sphere of their criticism.

When the Bill is referred to a select committee of the Council, the committee invariably consider the marginal notes along with the clauses and make such amendments in the marginal notes as they think fit. The practice of the Council differs in this respect from the practice of the House of Commons.

Finally, when the Bill is taken into consideration in the Council the marginal notes are not ordinarily read out and formally passed by the Council along with the clauses, but amendments to marginal notes, and the insertion of new marginal notes, form the subject of formal motions and resolutions. I would lay stress upon this fact as showing that the marginal notes are considered, and are assented to expressly or tacitly, by the Council.

The following extracts from the official report of the Proceedings of the United Provinces Legislative Council will serve to prove that the practice, during the period under consideration, was as I have stated. Two of the extracts relate to the Agra Pre-emption Bill itself, and two to a more recent Bill.

“Mr. C.M King:— I propose substituting ‘Exclusion of pre-emption in respect of certain alienations’ for the present marginal note (of clause 8 of the Agra Pre-emption Bill).

The amendment was put and adopted. The motion that clause 8 of the Bill as amended do stand part of the Bill was put and adopted.”

(Volume IX, page 496, 1 November, 1922).

“Mr. C.M King:—I further move that in the marginal note to clause 5 (of the Agra Pre-emption Bill) after the word “mahals” the words “or villages” be inserted, simply because we have provided for the right of pre-emption in villages as well as in mahals.

The motion was put and adopted. The motion that clause 5 as amended do stand part of the Bill was put and adopted.”

(Volume XI, page 153, 14 December, 1922).

“Mr. C.M King:—Thirdly I move that in the marginal note (to clause 44 of the Oudh Courts Bill) after the words ‘Sub-ordinate Judge’ the words ‘or Munsif’ be inserted.

Amendments agreed to. Clause 44, as amended, ordered to stand part of the Bill.”

(Volume XXII, page 485, 6 March, 1925).

“Mr. J.R.W Bennett:—I move that the following marginal notes be inserted against the first and second paragraphs respectively of clause 48 (of the Oudh Courts Bill) ‘Bar of redemption suits when mortgage executed before the 13th February, 1844’ and ‘Redemption suits not barred where fixed term for redemption had not expired before 13th February, 1856’

Amendment agreed ‘to. Clause 48 as amended, ordered to stand part of the Bill.”

(Volume XXII, page 506, 7 March, 1925).

Further examples may be found in Volume XXII, at pages 479 and 505.

The practice of the legislature in respect of marginal notes being as shown above, I think it is clear that the marginal notes of the Agra Pre-emption Act must be regarded as inserted in the Act with the assent and authority of the Legislative Council. I think they may be treated as parts of the Act to the same extent as the headings of Chapters, or the headings of groups of sections. They can, therefore, properly be regarded as giving a contemporanea expositio of the meaning of a section, when the language of the section is obscure or ambiguous. I do not think that this view conflicts with the dictum of their Lordships of the Privy Council in the case of Balraj Kunwar v. Jagatpal Singh :—“It is well settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian Statute any greater authority than the marginal notes in an English Act of Parliament.”

I take this to mean that no reason had been shown to their Lordships for ascribing to the marginal notes of an Indian statute any greater authority than could be ascribed to the marginal notes of an Act of Parliament, and therefore they were not prepared to ascribe any greater authority to the former. Very likely no such, reason could have been given. The Indian statute under consideration in that case was the Oudh Estates Act, which was passed by the Governor-General in Council in 1869. Their Lordships could not be expected to attach any authority to the marginal notes of that Act unless they were satisfied that the notes had been inserted with the assent of the legislature. Apparently no at tempt was made to prove this proposition. It may be that the proposition was not even true. I find no trace in the arguments or judgment of any statement or explanation of the procedure followed by the Indian legislature in the year 1869 in respect of marginal notes. In the circumstances, therefore, it was only to be expected that their Lordships would not attach any authority to such notes.

I see no reason, however, for supposing that their Lordships would exclude all reference to the marginal notes of the Agra Pre-emption Act, 1922, even if they were satisfied, by reference to the official report of the Proceedings of the Legislative Council of the United Provinces, that such notes must be regarded as inserted with the authority and assent of the legislature. That would be a good reason for differentiating between the marginal notes of that Act and the marginal notes of an Act of Parliament.

The marginal note to section 20 reads as follows:—“Sale of property to pre-emptor or acquisition of right by the original purchaser prior to suit.” I may observe in passing that the word “pre-emptor” must be taken as equivalent to “person having a right of pre-emption,” but the important point is that the note clearly indicates that the events mentioned must have taken place “prior to suit.” This confirms the conclusion, to which I have arrived on other grounds, that section 20 has no application to the present case, where the purchaser acquired his interest after the institution of the suit. I am unable to agree to the interpretation put upon section 20 in the case of Qudrat-un-nissa Bibi v. Abdul Rashid .

The next question is whether section 19 defeats the plaintiff's right to a decree. I think it clearly does. At the time of passing the decree the plaintiff had no subsisting right of pre-emption, because the purchaser had by that time acquired a pre-emptive status equal or superior to that of the plaintiff. To my mind it is clear that section 19 enacts the old rule that the plaintiff cannot get a decree unless he shows a subsisting right of pre-emption at the date of the decree. I think the expression “subsisting right, of pre-emption” must be understood in the sense in which it was understood before the passing of this Act. The plaintiff may lose his right in a variety of ways, and one way is by the purchaser's acquisition of an interest which puts him on the same level as the plaintiff in respect of the right of pre-emption. It may be considered hard that the plaintiff should be defeated by the purchaser acquiring such an interest after the institution of the suit, but this was the old rule, and I have no doubt but that section 19 enacts the same rule. I express no opinion on its justice or expediency. I am in full agreement with the interpretation put upon section 19 in the case of Qudrat-un-nissa Bibi v. Abdul Rashid which has been followed in the case of Ram Khelawan v. Bankey Bihari and Deo Narain Singh v. Ajudhia Prasad .

I agree that the reference should be answered in the affirmative in respect of section 19 and in the negative in respect of section 20.

Kendall, J.:— I agree with my learned brothers in their interpretation of sections 19 and 20 of the Act, and need add nothing to what they have said on the point. As regards the use of marginal notes lean support from my own experience as Legal Remembrancer and Judicial Secretary the remarks of Mr. Justice King on the procedure in the reformed Legislative Council; and the conclusion at which I arrive is the same as his, namely that the marginal notes of the Agra Pre-emption Act, 1922, may properly be referred to by the court in order to interpret the meaning of that statute.

By the Court:—Let the reference be returned with the answer that in the circumstances named the plaintiff's right of pre-emption is not defeated by the provisions of section 20 but is defeated by the provisions of section 19.