JUDGMENT
Henry Richards, C.J. and Tudball, J.
1. This appeal arises out of a suit for pre-emption. Portion of the property was situate in one mahal and portion in another. The plaintiff claimed preemption of the whole of the property in Harballampur but only a portion of the property in Mirganj. He said that the vendor was only entitled to a much smaller share in Mirganj than that which he purported to sell. He added to his plaint a, statement that if the court found that the vendor was really entitled to all the property in Mirganj which he purported to sell, then he was willing to pre-empt that also. Both the courts below have dismissed the plaintiff’s suit on the ground that he did not seek preemption of the entire property. In our opinion this decision was correct. A pre-emptor is not entitled in a pre-emption suit to put the vendor on proof of his title to the property which he purports to sell. The principle of pre-emption is substitution. A pre-emptor is, therefore, bound to take the title which the vendee was ready to take. He is not entitled to say to the vendor, I will take all the property to which you prove you have a title but I will not take property which you fail to prove belongs to yourself. We need hardly say, that we do not decide that a vendor is entitled fraudulently to insert property, to which he has no title, in the sale deed for the purpose of inflating the price or otherwise fraudulently to defeat pre-emption. In the present case it is perfectly clear from what took place in the court below that the vendor has (or bona fide thinks he has) some title not necessarily a perfect title, to the property which the plaintiff in the present suit claims belongs to his son, We dismiss the appeal with costs.
