JUDGMENT
1. We think the judgments of both the Courts below in this case are wrong. The suit was a suit for pre-emption and the transfer in respect of which the right of pre-emption was claimed was described as being a transfer by way of sale. Both the Courts below were of opinion that this transfer was “tantamount to a sale” and, therefore, preemption was allowed.
2. The facts may be stated very shortly as follows: By an arrangement which was made under a compromise decree one Jagarnath became liable to transfer a one pie-share of property which was coming to him, to one Puran to whom the other party to the decree in that compromise suit owed a sum of Rs. 545.
3. Jagarnath, having got the property and being in a position to transfer this one pie share to Puran, as he was bound to do under the terms of the compromise decree just referred to, failed to convey it to Puran. Puran then resorted for help to three men, Paras Ram, Achhru and Phundi Lal and it was arranged between them that a suit should be brought against Jagarnath’s representatives (Jagarnath having died in the meantime) in order to make them hand over the one pie share which Jagarnath had been under an obligation to convey. And so there was a suit between Puran and his three associates on the one side ranged as plaintiffs and Jugul Kishore and Har Das the representatives of Jagarnath who were arrayed as defendants The result of this case was a compromise upon which a decree was passed and the effect of the decree was that the two defendants, the representatives of Jagarnath, were under the duty of handing over a 12 krants share to Puran and the other three plaintiffs.
4. The decree passed on this compromise hears date, the 29th October 1923, and the plaintiff Neksai comes into Court and says that he is entitled to pre-empt the transfer which has been sanctioned by this compromise. As we have said, the Court of first instance said that this transfer under the compromise decree was “tantamount to a sale” and that Neksai was, therefore, entitled to pre-empt. This view has also been accepted by the lower appellate Court. We do not agree. In the first place, it is clear that under the Agra Pre-emption Act which governs the present case, a right of pre-emption can only be claimed in respect of sale or foreclosure. This is made clear by a reference to Section 10, which defines when a right to bring a suit for pre-emption arises.
5. The transfers which are pre-emptible being confined to sales and foreclosures we have to consider what the meaning of the term “sale” is in this Act (Act 11 of 1922). There is a definition of sale in Section 4 (10), of the Act and it says that “sale” means a sale as defined in the Transfer of Property Act, 1882. The definition of “sale” in this latter Act is contained in Section 54 and bearing in mind that any transfer under the Transfer of Property Act must be an act such as is described in Section 5 of that Act, “transfer” means an Act by which a living person conveys property in present or in future, to one or more living persons, or to himself or one or more other living persons, and “to transfer property” is to perform such act. It seems to us to be impossible to apply this definition of “transfer” and of. “sale” in the Transfer of Property Act to a decree of a Court and we cannot, therefore, allow the contention that a transfer which is effected under the sanction of a decree of Court can be treated as a sale and can be pre-empted under the Agra Pre-emption Act. There are two Bench rulings of this Court which are referred to in the judgment of the lower appellate Court. One is Intizar Husain v. Jamna Prasad [1904] 1 A.L.J. 247. In that case it was distinctly held by a Bench of this Court that a right of pre-emption does not arise upon a transfer effected by virtue of a decree though the decree is passed upon compromise. In this judgment the learned Judges followed another judgment of theirs reported in Abdur Razzaq v. Mumtaz Ali [1903] 25 All. 334. The learned Judge of the lower appellate Court has affected to distinguish these rulings from the present case, but no valid distinction can be drawn. It is perfectly true that these judgments were delivered before the coming into force of the Agra Pre-emption Act, but that fact cannot make any difference. We are definitely of opinion that a sale which is pre-emptible in this Act must be strictly a sale as defined in the Transfer of Property Act, 1882, and that a transfer of property which is brought about by a decree of Court cannot for purposes of preemption be treated as a sale in the Act.
6. The result, therefore, is that the plaintiff had no right of suit. We allow this appeal, set aside the decrees of the Courts below and direct that the plaintiff’s suit do stand dismissed with costs to the contesting defendants in all three Courts.
