Wali Ullah, J.
1. This is an appeal by the plaintiff against the decree of the lower appellate Court by which the plaintiff's suit for pre-emption was dismissed. It appears that on 19th October 1948, a sale deed in respect of anna 0-1-3 and odd share of zamindari in Mauza Mundela Misir was executed by defendant 2, in favour of defendant 1. The sale consideration mentioned in the deed was Rs. 2 500. Subsequently, defendant S, who is the own brother of defendant 2, and also a co-sharer in the property sold, managed to secure a sale deed from defendant 1, in lien of the same consideration, viz., Rs. 3,500. The plaintiff instituted a suit for pre-emption with the allegation that the second transfer executed by defendant I, the vendee under the sale deed of 19th October 1948, in favour of defendant 3, was made without obtaining the necessary permission of the Assistant Collector under Section 24, United Provinces Regulation of Agricultural Credit Act (XIV [14] of 1940) The plaintiff went on to assert that by reason of the provisions of Section 25 of that Act the second sale deed would have the effect in law only of a mortgage and thus it would not adversely affect his right of pre-emption so far as the sale deed dated 19th October 1943, was concerned. The suit was contested only by defendant 3, who inter alia contended that the sale deed in his favour put an end to the right of the plaintiff to claim pre-emption. He claimed to have obtained a re-conveyance of the property to him in enforcement of a preferential right of pre-emption available to him but out of Court. It was claimed that the plaintiff's suit for preemption was consequently not maintainable. The learned Munsif found in favour of the plaintiff so far as the other issues were concerned, but on the issue, whether the plaintiff's claim for preemption could be maintained, he held that defendant 3, having obtained the property in exercise of a right superior to that of the plaintiff, the plaintiff's claim as against him could not stand. In this view of the matter, the suit was dismissed. On appeal, the learned Civil Judge held that the plaintiff had no subsisting right of pre-emption inasmuch as the second sale deed dated 19th February 1944, by defendant l, in favour of defendant 3, was good as a sale deed in the eye of law. In this view of the matter the decree of the Court of first instance was affirmed and the appeal was dismissed.
2. The plaintiff has flow come up in second appeal to this Court and learned counsel for the appellant has contended that the Courts below have taken a wrong view of the law in holding that the sale-deed dated 19th February 1944, executed by defendant l in favour of defendant 3, was valid and was not a 'voluntary alienation' within the meaning of that expression as given in Section 12 of the Act. On the strength of the provisions of Sections 24 and 25, U. P. Regulation of Agricultural Credit Act, 1940, learned counsel has contended that the sale-deed dated 19th February 1944, would have the effect of only creating a possessory mortgage of the character dealt with by Section 13, Clause (a) of the Act with the result that the proprietary right obtained by defendant 1 from defendant 2 under the sale, deed dated 19th October 1943, would still remain vested in defendant 1. I have heard Mr. Kedar Nath Singh, learned counsel for the respondents. He has contended that in the circumstances of the case the transfer made by defendant 1 in favour of defendant 3 on 19th February 1944, was not really a 'voluntary alienation' of 'protected land'. His contention is that it was an alienation effected by defendant 1 under a sense of necessity inasmuch as defendant 3 bad a right superior to that of the plaintiff and also to that of defendant l to purchase the property. In these circumstances, defendant 1 executed the sale deed in February 1944, and thereby virtually re-conveyed the property not to his vendor but to his vendor's brother, viz., defendant 3, simply to avoid a suit for pre-emption to which he could have no possible defence. Learned, counsel has contended that in these circumstances the second sale-deed, viz., the sale-deed' executed on 19th February 1944, should not be considered to be a 'voluntary alienation' in any sense of that term. If that view is correct, so contends the learned counsel, Sections 12, 24 and 25 would have no application with the result that the sale-deed of 19th February 1944, would remain intact and the plaintiff would thus be deprived of his right of pre-emption on the simple ground that he had no subsisting right of pre-emption ' at the date of the decree.
3. The relevant provisions of the Act maybe briefly noted here. 'Permanent alienation' is defined in Section 2 (9) of the Act :
' 'Permanent alienation' means a transfer by sale, exchange, or gift bat does not include a transfer by gift for a charitable purpose or a transfer by will;'
Section 2 (12) of the Act defines ''protected land' thus:
' 'Protected land' means
(a) with reference to a proprietor liable to pay local rate not exceeding twenty-five rupees per annum, all his land ......'
Section 12, which occurs in chap. IV headed 'Voluntary Alienation of Protected Land', reads thus :
'No proprietor shall mortgage or lease or make a permanent alienation of the whole or any part of his protected land or alienate or charge the produce of such land otherwise than in accordance with the provisions of this Act.'
Section 24 indicates the procedure for obtaining permission for a 'permanent alienation' of the whole or any part of the protected land. It reads thus :
' (1) A proprietor who wishes to make a permanent alienation of the whole or any part of this protected land shall apply for permission to the assistant collector in charge of the nub-division in which his protected land or that part of it which is assessed to the largest amount of local rate, is situated.
(2) The assistant collector shall make such inquiry as appears necessary and shall decide the application in accordance with rules made by the Provincial Government in this hr half.
(3) An order under Sub-section (2) granting permission to alienate shall be in writing and shall specify the period during which such permission shall remain operative
(4) An order sanctioning a permanent alienation of protected land shall not affect an; question of title or any question relating to reversionary right or right of pre-emption.'
Section 25 deals with the effect of 'permanent alienation' made otherwise than in accordance with the Act. In the present case, it is common ground that the land sold by Sita Ram Kasaundhan, defendant 2, under the sale-deed dated 19th October 1943, was 'protected land'. Similarly, it is common ground that this land in the hands of Shivadin Kasaundhan, defendant 1, also had that character. It follows, therefore, that the relevant provisions of the U. P. Regulation of Agricultural Credit Act (1940) would apply to the land sold under the second sale-deed executed on 19th February 1944.
4. The sole question, however, is whether this alienation is of a character which can be described as 'involuntary' that is, an alienation other than a voluntary alienation of 'protected land' dealt with in chap. IV of the Act. As mentioned above, learned counsel for the respondents has contended with great earnestness that the second transfer, i. e., the sale-deed dated 19th February 1944, was executed under a sense of compelling necessity. The argument of the learned counsel is that defendant 3 having a good right of pre-emption to which defendant 1, could have no valid defence, defendant 1, in executing this sale-deed, was really not a free agent. He was compelled by force of circumstance to execute the sale-deed in favour of defendant 3. In short, the contention is that such a alienation cannot be characterised as a 'voluntary alienation'. On the other hand, learned counsel for the appellant has contended that a deed of sale, like the one executed on 19th February 1944, cannot but be described as a voluntary alienation of the kind dealt with in Sections. 12, 24 and 25 of the Act. Learned counsel has, in effect, contended that a 'voluntary alienation' of land dealt with in chap, iv, as also referred to in the first paragraph of the Preamble of the Act has to be contrasted with alienations such as take place in the case of execution of decrees through court sales. Learned counsel has, in this connection, invited my attention to the case of Sri Narain Dube v. Jang Bahadur, 1947 A. L. J. 196 : (A. i. R. (34) 1947 ALL. 43l). This is a decision by a Bench of two learned Judges of this Court to which I also was a party. In this case, a decree for specific performance of a contract to sell certain landed property was passed before 1st January 1941, that is, before the U. P. Regulation of Agricultural Credit Act came into force. An application for execution of the decree wag, however, made in February 1942. A question arose whether in execution of the decree for specific performance the Court could compel the judgment-debtor to execute a sale-deed when the landed property in respect of which the sale-deed had to be executed was ''protected land' within the meaning of this Act. It was held that Section 12 of the Act, which prohibits voluntary alienations of protected land, was applicable. It was further held that the execution of a deed of sale, even by the Court in the enforcement of a decree for specific performance, was a transfer on behalf of the party and not by the Court and that even such a transfer was a 'voluntary alienation' within the meaning of Section 12 of the Act.
5. It was made clear in that case that a 'voluntary transfer' means only a transfer brought about by act of parties as opposed to a sale made by the Court in execution of a decree in which case the Court sells the property. It was pointed out that such sales by the Court are dealt with in chap. III of the Act which is headed 'Execution of Decrees'. The transfer in the present case made on 19th February 1944, must therefore be considered to be a transfer of a voluntary character. As such it would be affected by Section 12 of the Act. It follows that under Section 24 it was necessary for the proprietor to obtain permission from the Assistant Collector concerned before effecting the permanent, alienation in question. Sub-clause (4) of Section 24 cannot help the transferee, who may have had a right of pre-emption. All that Sub-clause (4) means is that the order of sanction granted by the Assistant Collector would not adversely affect any question of title or any question relating to reversionary right or right of pre-emption. If we read Section 25 along with the provisions of Sections 12 and 24, it would be clear that in the net result the sale deed of 19th February 1944, would merely have the effect of creating a possessory mortgage of the kind indicated in Section 13 (1) (a) of the Act. This being the position, so far as the plaintiff's right of pre-emption in the present case is concerned, the position of defendant 1, the vendee, under the original sale-deed of 19th October 1943, would remain that of a vendee having ownership of the property. The only alteration in his position by reason of the second transaction of February 1944, would be that the property in his hands would be subject to an encumbrance of the nature of a usufructuary mortgage. The plaintiff's right of pre-emption cannot, in these circumstances, be defeated by reason of the second transfer of 19th February 1944. It seems to me, therefore, that the Courts below have taken an erroneous view of the law in holding that the sale deed dated 19th February 1944, was good in law as a sale deed and, therefore, the plaintiff had no subsisting right of pre-emption on the date of the decree. The findings on all other issues being in favour of the plaintiff, his claim must be decreed.
6. The result, therefore, is that I allow the appeal with costs, set aside the decrees of the Courts below and decree the plaintiff's suit for pre-emption. The plaintiff pre-emptor must deposit the sale consideration of RS. 2,500 within three months of today. In case of default in making the deposit plaintiff's suit shall stand dismissed with costs in all Courts.