Badri Pandey vs Parsotam Singh and Others

This is a defendant''s appeal arising out of a suit for pre-emption. A sale-deed was executed by defendant 1 in favour of defendants 2 and 3. Defendant 3 was a recorded cosharer. Defendant 2 is his brother, but not recorded as a cosharer. Perhaps to avoid future complication defendant 2 executed a deed of sale of his interest in favour of defendant 3. This was prior to the institution of the present suit.

The Court of first instance dismissed the suit, holding that at the time the suit was brought the plaintiff had no preferential right as against defendant 3, who had by that time acquired the entire interest.

The lower appellate Court has reversed that decree, holding that defendant 3, a cosharer, having joined with him a person who was not a cosharer, has irrevocably lost his right to resist the claim. We are unable to accept this view.

Section 20, which re-affirms the previous rule, makes it quite clear that if on the date the suit was brought the property has been transferred to a person as against whom the plaintiff has no preference, the claim cannot be decreed.

The result, therefore, is that the decree of the lower appellate Court is set aside and that of the Court of first instance restored with costs in all Courts.