JUDGMENT Kaul, J. - This is a Plaintiff's appeal in a suit for| pre-emption. 2. The material facts are as follows. On the 22nd August, 1938, Mst. Dhamola sold certain plots of land in village Kuria (Hardoi district) whereof she was in possession as a Hindu widow to Mst. Rukmin Devi for a consideration of Rs. 450. Tnakur Jhammaa Singh brought a suit for pre-emption of the sale. He was admittedly a co-sharer in the mohal in which the land sold lay, while the vendee Mst. Rakmin Devi, was a stranger. of a number of defences which were raised to this suit only two are material for the purpose of this appeal. 1. That the vendor was in possession of the property sold as a Hindu widow and a sale by her did not give rise to a right of pre-emption, and 2. That the price entered in the sale deed was fictitious. 3. The trial Court held that the alienation in question was made by Mst. Dhamola for legal necessity and gave rise to a right of pre-emption. On the question whether the price mentioned in the sale deed was fictitious or not, the finding was against the Defendants. The lower appellate Court differing from the trial Court held that only part of the sale consideration was proved to be required for legal necessity and relying on the cases of Raja Ram Singh v. Mst. Ganesha (1913) 32 I.C. 225, and Swami Dayal Ramadhar (1931) 8 O.W.N. 566, held that in these circumstances no right to preempt the sale arose. Dissatisfied with this decision Jhamman Singh filed this second appeal. He died since the appeal was filed and is now represented by Mohan Singh, Virendra Singh, Rameshwar Singh, minor, his three sons, and Mst. Savitri Davi his widow. 4. The question for consideration is whether a sale by a Hindu widow which, though not challenged by the reversioners and not proved to be made wholly for legal necessity, gives rise to a right of pre-emption under the Oudh Laws Act. The answer to this question must depend upon the proper construction of certain provisions contained in Chapter II of Act XVIII of 1876. u/s 6 the right of pre-emption is a right of the persons hereinafter mentioned or referred to to acquire, in the cases hereinafter specified, immoveable property in preference to all other persons. The answer to this question must depend upon the proper construction of certain provisions contained in Chapter II of Act XVIII of 1876. u/s 6 the right of pre-emption is a right of the persons hereinafter mentioned or referred to to acquire, in the cases hereinafter specified, immoveable property in preference to all other persons. u/s 7 in the absence of a custom or contract to the contrary, there arises a presumption that the right of pre-emption exists in all village communities, however, constituted, whether proprietary or under-proprietary. Section 9 reads as follows: If the property to be sold or foreclosed is a proprietary or under-proprietary tenure, or a share of such a tenure, the right to buy or redeem such property belongs, in the absence of a custom to the contrary 1st to co-sharers of the sub-division (if any) of the tenure in which the property is comprised, in order of their relationship to the vendor or mortgagor ; 2nclly to co-sharers of the whole mahal in the same order; 3rdly to any member of the village community ; and 4thly, if the property be an under-proprietary tenure, to the proprietor. Where two or more persons are equally entitled to such right, the person to exercise the same shall be determined by lot. 5. It will thus be seen that if the property to be sold is a proprietary or under-proprietary tenure, or a share of such tenure, the sale gives rise to a right of pre-emption. In the present case it was not disputed that Mst. Dhamola's husband was the proprietor of the plots which she sold to Mst. Rukmin Devi. Obviously, therefore, there was a sale of property which was a proprietary tenure. "Tenure" means the mode of holding property. As already stated, Mst. Dhamola's husband held this property on a proprietary tenure. Does it become any the less the sale of a proprietary tenure because the vendor was a Hindu widow who was in possession of the property sold as the heir of her husband ? It is difficult to see on what principle this sale is distinguishable from a sale if it had been made by Damola's husband, so far as the question of pre-emption is concerned. It is well settled that a sale by a Hindu widow is not void: it is only voidable at the option of the reversioners. It is difficult to see on what principle this sale is distinguishable from a sale if it had been made by Damola's husband, so far as the question of pre-emption is concerned. It is well settled that a sale by a Hindu widow is not void: it is only voidable at the option of the reversioners. Nor can it be disputed that the full estate owned by a Hindu vests in his widow when she succeeds him as his heir. No doubt the estate taken by her is limited to her life and restrictions are placed on her power of alienation, but the nature of the estate taken by her, if her husband owned a proprietary interest, is the same as was held by him. The provisions of the Oudh Laws Act contained in Section 9 make no reference to the term for which the proprietary or under-proprietary tenure is held. All that is required is that the property sold should be a proprietary or under-proprietary tenure. With the greatest respect for the learned Judge who decided the case of Raja Rampal Singh v. Mst. Ganesha (1913) 32 I.C. 225 it is not clear on what principle it was laid down that a sale made without legal necessity by a Hindu widow, governed by the Mitakshara Law, of her estate as a Hindu widow in a proprietary share is not a sale of full proprietary estate within the meaning of Section 9. I have carefully gone through the report of the case and I find no reason assigned for the view taken except the observation that after considering the meaning of the words, "proprietary tenure or a share of a proprietary teuure" the learned Judge came to the conclusion which formed the basis of that decision. It may be pointed out that the words "full proprietary estate" are not found in Section 9. It mentions only "a proprietary or under-proprietary tenure, or a share of such a tenure" without any qualification. I am with the greatest respect unable to concur in that view. No doubt this case was referred to in the case of Swami Dayal v. Ramadhar (1931) 8 O.W.N. 566 : (I.L.R. 6 Luc 715 at 729) apparently with approval. It mentions only "a proprietary or under-proprietary tenure, or a share of such a tenure" without any qualification. I am with the greatest respect unable to concur in that view. No doubt this case was referred to in the case of Swami Dayal v. Ramadhar (1931) 8 O.W.N. 566 : (I.L.R. 6 Luc 715 at 729) apparently with approval. An examination of the report of that case however, shows that the observations made with reference to this case were obiter and not necessary for the decision of the matter before their Lordships. 6. The lower Court was influenced materially in the consideration of the case before it by the decision of the Judicial Commissioner's Court in 32 I.C. 225 and the reference to it in 8 O.W.N. 566. Were I not of opinion that the observation of their Lordships in Swami Dayal v. Ramadhar were obiter, it would be my duty to follow them. I am clear, however, that all such questions, whether there was or was not legal necessity for the sale, are foreign to a suit for pre-emption. "Preemption" as was held by Mahmood J. in Govind Dayal v. Inayatullah (1885) 7 All. 775 is not a right of repurchase either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in repect of all the rights and obligations arising from the sale under which he has derived is title. Nor is it in my opinion open to a purchaser against whom a suit for preemption is brought to contend that the sale which he has taken was of a character which may in future prove to be invalid. In view of the Law as it is laid down in Chapter II of the Oudh Laws Act, if there is a sale of a proprietary or under-proprietary tenure, there comes into existence a right of pre-emption. The question whether it is a sale of a proprietary tenure or not, must, be determined primarily upon the construction of the deed of transfer. Certainty it is open to a vendee to show that the transfer which he has taken was not the sale of a proprietary or under-proprietary right. The question whether it is a sale of a proprietary tenure or not, must, be determined primarily upon the construction of the deed of transfer. Certainty it is open to a vendee to show that the transfer which he has taken was not the sale of a proprietary or under-proprietary right. But to say that the transfer is one that might be avoided by a third party in certain contingencies can be no defence to a suit for preemption. Whether the sale shall or shall not stand if challenged by the reversioners is the preemptor's lookout. He takes the risk and is prepared to accept the property as it is. 7. For the reasons given above I am of opinion that the lower appellate Court was in error in taking the view that thare was no right of preemption in respect of the sale ejected by Mst. Dhamola because the whole or the bulk of the sale consideration was not proved to have been required for legal necessity. All such questions are as already observed foreign to the scope of a pre-emption suit. Nor is it proper that such questions should be determined in the absence of persons to whom alone it is open to challenge the alienation, namely the reversioners. 8. The appeal is allowed. The decree of the lower appellate Court is set aside. The claim for pre-emption is decreed with costs in all the Courts on payment of Rs. 450. The Appellants are allowed three months' time to deposit the preemption money. In case of default the suit shall stand dismissed with costs.