GRILLE, C.J. - (1.)THIS is a second appeal by the defendant, whose first appeal has failed, arising out of a suit for pre-emption. The usual points which arise in such suits, and which arose in this, as to the fair price and as to previous notice of intending purchase being given, are not now in dispute, and the point for decision is whether one of the two original plaintiffs having been found to be a stranger to the right of pre-emption the other plaintiff, who is entitled to that right, has forfeited it by associating with him in the suit for pre-emption the person who has been found to be a stranger. The trial Court found that the association entailed no such forfeiture and decreed the claim, and this was upheld in appeal. It is against this decision that the second appeal has been filed by the defendant.
(2.)THE recorded co-occupant who has a right of pre-emption, since Fakira the defendant was admittedly a stranger to the survey number, was Narayandas, plaintiff 2. Associated with him in the plaint was his natural father Shrikisan. Narayandas has been given in adoption to another family Fakirchand, and the reason given for associating his natural father with him in the plaint was that the purchase money for the field came from the natural father and that unless he were made a party to the suit the question of benami would be raised and might operate against Narayandas. The finding that Narayandas was a recorded co-occupant and that his father Shrikisan was a stranger has not been disputed. It is to be noted that in the plaint it was prayed that a decree might be passed in the names of both jointly or in the name of either of them, and later on in the suit, prior to judgment, an application was made asking that Shrikisan be allowed to withdraw from the suit and it be continued in the name of Narayandas alone, This application for amendment was not granted on the ground that it was vague. I have seen the amendment and can see no vagueness in it, and it is not clear why the learned Judge who took the view that he did, in the judgment declined to accede to the request for amendment.
It is strongly urged before me that the decisions in the Allahabad High Court, which are numerous and in agreement, are to the effect that a mere association of a stranger with a person having a right to pre-empt in a suit for pre-emption, even if the claim of the stranger is withdrawn, is sufficient to nullify entirely the claim of the pre-emptor. This view prevailed in the Allahabad High Court even before the enactment of Section 21 in the Agra Pre-emption Act which runs: Where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right; and where a pre-emptor of a higher class sues jointly with a pre-emptor of a lower class, he shall have no higher right than the person with whom he so sues. The Punjab Chief Court also in a long series of decisions has taken the opposite view, and besides permitting the withdrawal of a stranger's claim has also drawn a distinction between a stranger purchaser sheltering behind a co-owner when the sale is challenged in a suit for preemption and a suit for pre-emption in which a stranger is associated with the person having such a right. In this connection, Sharaf v. Pir Baksh 83 P.R. 1893 p. 338, Hira Lal v. Ibrahim 102 P.R. 1894 p. 376, Murad v. Mine Khan 94 P.R. 1895 and Mt. Mangli v. Sobha Singh (1914) 15 P.L.R. 1 may be cited.

(3.)THE right of pre-emption under the Berar Land Revenue Code must be determined by that Code and not by the Mahomedan Law of Pre-emption Order by any other law prevailing in other provinces. This has been laid down by Bose J. in Namdeo v. Kesheo A.I.R. (25) 1938 Nag. 59 and has had my respectful concurrence on more than one occasion. It is also there stated that the Mahomedan law may be sought in assistance on any matter relating to pre-emption on which the Code is silent. Now the Berar Land Revenue Code is certainly silent on the question of the effect of a stranger joining in a suit for pre-emption, and also on the question (which is also dealt with in the Agra Pre-emption Act) of the liability of property for pre-emption which is jointly purchased by two persons against one of whom only the right of pre-emption exists. With the provisions of the Agra Pre-emption Act before them, the Legislature, in enacting the Berar Land Revenue Code six years later, did not consider it necessary to insert any such provision; and so far as the view of the Mahomedan law of pre-emption is concerned the Allahabad High Court and the Punjab Chief Court have taken opposite views. The object of the law of pre-emption as contained in the Berar Land Revenue. Code is to avoid fragmentation of holdings and to keep out strangers who have no previous association with the holding. In the case of stranger purchasers associating themselves with co-occupants in the purchase, this can only be achieved by provision being made for setting aside the sale, but no such drastic remedy is necessary where a stranger associates himself with one having a right of pre-emption in a suit for pre-emption and the decree is passed in favour only of the person who has the right of pre-emption and is denied to the stranger. A fortiori is the drastic action of denying a pre-emptor's right in toto unjustifiable when the stranger's claim is withdrawn or sought to be withdrawn. I am in agreement with the quotation from Sharaf and Makhan v. Pir Baksh and Khoda Baksh 83 P.R. 1893 p. 338 ciled by Diwan Bahadur Brahma in his commentary on the Berar Land Revenue Code, that it may be quite just to say to a pre-emptor that he alone had a preferential right to purchase but he and a stranger together had not, but that it is quite unjust to say to him that he has a preferential right to sue the defendant but has forfeited it by the erroneous belief that his co-plaintiff had an equal right. It may be urged that danger lies: in giving a decree in favour of one who has a right to pre-empt and denying it to a stranger in the same suit since there arises the apprehension that the result of the claim may be utilised in transferring the right to the land to the stranger subsequently. Any such transfer would of course be open to challenge by another co-occupant, and moreover in this case that danger will not arise since the natural father, Shrikisan, is now dead and has been struck off the record on the application of the appellant-defendant who has stated in the application that he has willed all his property to his natural son, the plaintiff co-occupant Narayandas. The matter has also been discussed by Dr. Kathalay in his work on the Law of Pre-emption and I appreciate the learned author's reasoning in respect of the inconclusiveness of the argument of estoppel and equitable acquiescence in the case of the joining of a stranger in a pre-emption suit. The passage in question runs as follows: The analogy between a purchaser joining a stranger with him in the purchase and a pre-emptor as plaintiff joining with him a stranger as co-plaintiff is not so complete as necessarily to entail the same consequences. In the former case, the pre-emptor purchases in violation of the rules regulating pre-emption and his act is incapable of being undone, but in the case of a joinder of a stranger in the suit, the error is only in the form of the claim made in Court and can be remedied with out infringing the right of any person. That passage appears to me to epitomise the Punjab view which provides sufficient safeguards in upholding the purposes of the Berar Land Revenue Code and which I prefer to the highly technical rule which prevails in the Allahabad High Court and which, with respect, I consider must work with undue harshness.