JUDGMENT
Nawal Kishore, J.
1. This is a first appeal by the pltf Mohanlal of Ladnun & arises out of a suit for pre-emption which was dismissed by the learned Dist J., Nagaur.
2. On 16-3-1943 Ganpatia & others mtged by conditional sale the house in dispute situated at Ladnun in favour of Rasula & his son Hasan for Rs. 1000/- at Rs. 1/9/- per cent per mensem on account of interest. It was stipulated in the mtge deed that in case the mtgors failed to redeem the mtge by repaying the mtge money within two years, the house will be deemed as having been sold to the mtgees. This period of two years expired on 16-3-1945 but nothing seems to have transpired on that day or thereafter till 6-6-1947 when the mtgees obtained a patta for the house in dispute. On 12-8-1947 Mohan Lal sued for possession of this house by pre-emption on the ground that it touched his house towards the north. The deft Rasula for himself & as the guardian of his son Hasan resisted the suit & pleaded that he had a superior right of pre-emption as while the pltf’s house touched the house in dispute on the back, his house touched it both on the west & the south. He also pleaded that the suit was barred by limitation. The two important issues arising out of these pleadings were issues 1 & 2. The learned Dist J. found that though the suit was within limitation, the defts had a superior right of pre-emption. He therefore dismissed the suit.
3. The defts’ plea as regards their having a superior right of pre-emption was based on the allegation that they had purchased a house from Chhagana, Maliya & Sadasukh on 27-1-1944 & that this house touched the house in dispute towards the west & the south. Three important questions were agitated in connection with this allegation in the Ct below: (1) That execution of the sale-deed Ex. D-l by Chhagna & others in favour of Rasula & his son had not been proved on the record. (2) That even if the execution of the aforementioned sale-deed was held to have been proved, the house purchased by the defts did not adjoin the house in dispute. (3) That in any case, the vendees were not competent in law to improve their position after the date of the sale of the house in dispute.
4. Lengthy arguments have been addressed at the Bar in connection with the above mentioned questions & a large number of authorities cited on the last mentioned point. While the first two questions are questions of fact, we propose to deal with the third question first. It raises an interesting point of law but the correct position does not appear to be in doubt at this time of the day. At one time the view was that where a case for pre-emption is well founded with reference to the state of things which existed at the time of sale, that cause of action viewed as a valid ground of claim cannot be lost or affected by reason of a new circumstance coming into existence after the sale. There was an F. B. judgment incorporating the above view reported as Dhanna Singh v. Carbaksh Singh’, 91 P R 1909 (F B). Rattigan J. however wrote a dissenting judgment. This view was contrary to the view which prevailed in ‘Darchan Khan v. Sohaura Mal’, 124 P R 1907: (3 P L R 1907), where it was held that a vendee can better his position, as for instance, (by other acquisitions which give him an equal right with the pre-emptor between the date of the sale in dispute & the institution of the pre-emption suit. So far as the Lahore H. C. is concerned, there is no point in pursuing the history of this matter as an authoritative pronouncement is contained in F. B. judgment of that Ct reported as ‘Madho Singh v. James R. R. Skinner’, A I R (28) 1941 Lah 433: (I L R (1942 Lah 155 P B). In this judgment, ‘Dhanna Singh v. Gurbaksh Singh’, 91 P R 1909 (P B) was expressly overruled & it was held that it cannot be said that the date of sale is the only crucial date for the purpose of determining the right of the pre-emptor to oust the vendee or that it prohibits a vendee from defeating the right of a pre-emptor in any legal manner that may be available to him at any later period. The Allahabad view as reported in ‘Nihalsingh v. Chanda Kunwar’, 47 All 424: (A I R (12) 1925 All 358) & ‘Qudrat-un-Nissa Bibi v. Abdul Rashid’, 48 All 616: (A I R (13) 1926 All 661) has consistently been on the same lines as that taken in the F. B. judgment of the Lahore H. C. The principle of law on which it is based is that the pltf must have a subsisting right of pre-emption not only on the date of the sale but also on the date of the suit & if before institution of the suit, the vendee acquires an interest which puts him on an equal footing with the pltf he can defeat the pltf’s right & the suit cannot be decreed. It was recognized that a right of pre-emption could be defeated by legitimate methods known to law & one of these methods was to obtain a preferential or equal right by acquisition of some interest in the property in dispute or of some other property. To the same effect are also ‘Salamat Ali v. Nur Muhammad’, A I R (21) 1934 Oudh 303: (9 Luck 475) & ‘Yashoda Devi v. Parasmal’, 1947 M L R 45. This view was approved by their Lordships of P. C. in ‘Harts Nath v. Ragho Prasad Singh’, A I R (19) 1932 PC 57: (54 All 189). In the case before them, it was contested that the vendee was at the time of the suit a co-sharer in the village & that the acquisition of the share after the preemption sale but before the institution of the suit was effective to defeat the claim for preemption. Their Lordships went on to hold further that the same reasoning should be applicable in the case of a share acquired at any time before the adjudication of the suit. The only authority cited by the learned counsel for the applt in favour of the proposition that the crucial date in such matters is the date of the sale, is reported as ‘Amirul Mulk v. Mir Sayed’, A I R (29) 1942 Pesh 45: (201 IC 230) & it was sought to be supported on the ground inter alia that if any other date than the date of the sale were to be taken, the whole law of pre-emption could be made a nullify. While this view is contrary to the mass of authorities of all the H. Cs., it may be pointed out with respect that it is open to the vendee in law to take advantage of every weapon available to him to defeat a person whose sole object is, in the words of ‘Madho Singh v. James R. R. Skinner’, A I R (28) 1941 Lah 433: (I L R (1942) Lah 155 PB), to unsettle a transaction legally entered into. The further observation in this judgment is that their Lordships of the P. C. did not declare in ‘Hans Nath v. Ragho Prasad’, AIR (19) 1932 PC 57: (54 All 189), that there was anything fundamentally wrong in a vendee improving his status subsequent to the sale in order to ward off a pre-emptor. In view of the above, there seems to be no escape from the conclusion that the pltf-pre-emptor can lose his rights by the deterioration of his own right & the appreciation of the vendee’s rights before the suit is brought. Under the Marwar Preemption Act, there can hardly be any doubt or difficulty inasmuch as according to Section 7, the pltf can enforce his right of pre-emption only if it is in existence at the date of the suit as is clear from the following words with which the section begins: “Any person entitled to a right of pre-emption may bring suit to enforce such right”. This clearly signifies that the right must exist when the suit is instituted. In the circumstances, the contention of the learned counsel for the applt that since Rasula purchased his house from Chhagna on 27-1-1944 which is after the date of the sale of the preempted property, he should not be deemed to have a superior right of pre-emption must be rejected as without any force.
5. The next point which has been argued is that the sale-deed Ex. D-1 had not been proved to have been executed, & accordingly the question whether the vendee had come to acquire a superior right of pre-emption to that of the pltf was of academic importance. It may be pointed out that Ex. D-1, the sale-deed in favour of Rasula & his son purports to have been executed by Chhagna, his son Maliya & one Sadasukh. The deft Rasula has not gone in the witness-box nor have the vendors or the attesting witnesses been produced. D. W. 4 Sonia is the only witness who refers to this matter & all he stated is that he was present when Chhagna executed the sale-deed in favour of Rasula. The learned Dist J was under the impression that D. W. 3 Ganpat had also identified Chhagna’s signature on the sale-deed but that is incorrect. Even the statement of D. W. Sonia does not carry matters very far. The learned Dist J. held the execution of this document proved principally on the ground that it had been duly registered & that the registration of a document was sufficient proof of its execution. The learned counsel for the applt has questioned the correctness of this view & urged that the endorsement by the Registrar of a document is legally insufficient proof of the execution of that document & cited Bulakidas Hardas v. Chotu Paikan’, A I R (29) 1942 Nag 84: (I L R (1942) Nag 661) in support of this view. As is clear from a note in Monir’s Commentary on the Evidence Act (Edn 3, p. 552) several other Cts have also taken the same view, but the P. C. has definitely held that the evidence of due registration may itself be evidence of the execution of a document. See in this connection ‘Gangamoyi Debi v. Trilukhya Nath’, 33 Cal 537: (33 I A 60 P C). The learned counsel for the applt when faced with this view urged that before the Registrar only Chhagna appeared & admitted execution of the document but not Sadasukh. We do not know who this ‘ Sadasukh is but it is clear that Chhagna & Sadasukh were co-owners in this property & in the absence of partition, their ownership extended to every portion of the house. Accordingly, even if the registration off the document may be held to be proof of its. execution only qua Chhagna, so far as this case is concerned it will not make any difference & Rasula will still be held to have acquired a superior right to pre-emption provided, of course, this house adjoined the house in dispute.
6. The last question which has been argued in this appeal is that the house purchased by Rasula did not adjoin the house in dispute.
7. It has been found by the Ct below that the house purchased from Chhagna & others touched the house in dispute towards the west & the south. The learned counsel for the resp has placed on the record a plan showing the situation of the house purchased by Rasula after the sale of the house in dispute & its correctness has been admitted by the learned counsel for the applts in the petn preferred by him during the pendency of this appeal. A comparison of the measurements (mentioned in the plan with those stated in the sale deed shows that the finding of the Ct below that the house purchased by Rasula touched the house in dispute towards me west & the south is correct. In the circumstances the contention of the learned counsel for the applt to the contrary has not been substantiated.
8. The learned counsel for the resp wanted to support the decree passed in his favour by arguing that the pltf’s suit was barred by time. It was a case of a mtge by conditioaal sale which came into existence on 16-3-1943. According to a stipulation in the mtge-deed, the property was to be deemed to have been sold to the mtgees if it was not redeemed within two years. The period of two years expired on 16-3-1945. It was accordingly urged that since the suit had not been filed within one year from this date according to Article 10 & was actually filed on 12-8-1947 it was barred by time. The learned counsel contended that the condition should be deemed to have become absolute automatically on 16-3-1945 when the period of two years stipulated in the mtge deed expired. This, however, is not a correct view inasmuch as in order to convert the mtge into a sale, it is incumbent on the mtgee to resort to some overt acts in the nature of a suit etc. & until this is done, the mtge cannot definitely be said to have terminated & until that happens, the period of limitation for the institution of a suit for pre-emption will not start running. In this case, the overt act on the part of the mtgee to which the mtgors seem to have submitted was the obtaining of a Patta on 6-6-1947 & counting the period of limitation from that date, the suit is within time. To such a case it is Article 120, Limitation Act, which will apply & not Article 10 as held by the learned Dist J. Accordingly, in our opinion, the suit has rightly been held to be within time.
9. As a result of the view taken by us, since the vendees had acquired a superior right of pre-emption before the institution of the suit, this appeal fails & is hereby dismissed with costs.
Bapna, J.
10. I agree.