JUDGMENT
V. Bhargava, J.
1. This second appeal arises out of a suit for pre-emption brought by the plaintiff-appellant against the defendants-respondents in respect of a permanent lease executed by respondent 3 in favour of respondents 1 and 2 on 1st October 1942.
2. The pre-emption was sought on the allegation that the document mentioned above was in fact not a lease but either a sale of under-proprietary rights or a sale-deed creating under-proprietary rights in favour of strangers in the village while the appellant being a member of the under-proprietary village community had preferential right. The suit for pre-emption was decreed by the trial Court on a finding that the document in suit, though not a transfer of under-proprietary rights, amounted to a transfer of heritable and transferable tenure and such a deed could be the subject-matter of pre-emption. The lower appellate Court held that since the deed did not create or transfer under-proprietary right it could not be subjected to pre-emption even though it may have created transferable and heritable rights. It is against this finding of the lower Court that the present appeal has been filed.
3. In his argument before me the learned counsel, for appellant himself, conceded that, since this case the transferor was himself an under proprietor, the deed in suit could not operate to transfer or create under-proprietary rights. The case of Bindeshwari Prasad v. Krishna Murari, 11 O. W. N. 430: (A. I. R. (21) 1934 Oudh 145) is a clear authority for the proposition that, if there is already an under-proprietor and he makes a transfer in which he reserves the malikhana rights to himself, the transferee cannot become an under-proprietor. Under Section 9, Oudh Laws Act, only proprietary or under-proprietary tenures can be the subject of pre-emption. It is true that the right of pre-emption vests in members of village communities who may hold not only proprietary or under-proprietary rights but also in cases which are referred to in Section 40, Oudh Land Revenue Act, 1876 but the actual right that can be pre-empted is only the proprietary or under-proprietary tenure and not any of the rights mentioned in Section 40, Oudh Land Revenue Act. In this case, the right created by the deed of transfer dated 1st October 1948, is a heritable and transferable right and would be covered by Section 40, Oudh Land Revenue Act, but it cannot operate to create any under-proprietary right since there has been no transfer of any proprietary or under-proprietary rights, No claim for pre emption lies. The decision of the lower Court is, therefore, quite correct.
4. The appeal is dismissed with costs.
