JUDGMENT
1. This is a plaintiff's appeal arising out of a suit for pre-emption. The plaintiff's husband, Ammdad Khan, was the owner of a half share in three villages and the owner of two houses which were situated in one of the three villages. The plaintiff on his death claimed to be entitled to a l/8th share in the zamindari properties and l/4th share in the two houses. On 15th June 1930, the three sisters of the plaintiff's husband executed a sale-deed of their shares in the zamindari properties and in the two houses in favour of the defendants, who were admittedly strangers. Before the institution of the suit the plaintiff executed a deed of gift in respect of the house properties, but she alleged that that gift was invalid and ineffective as it had not been given effect to. She brought a suit for pre-emption of the entire property sold under the sale-deed and offered to pay the entire consideration which might really have been paid by the vendee, but put forward the case that the amount of sale consideration had been inflated. The defendants took the plea that the deed of gift was valid and the plaintiff had lost her right of preemption in respect of the house properties; and they further pleaded that she had in consequence lost her right to preempt even the zamindari properties. Both the Courts below have dismissed the claim. So far as the plaintiff's claim to pre-empt the houses under the Mohammedan law is concerned, it must fail. The Courts below have found that she had parted with her interest in the house properties validly under the deed of gift, and that the deed of gift was not fictitious and ineffective. There is a further finding that she has failed to perform the necessary demands as required by the Mahomedan law. It has, however, been found that the vendee is on an equal footing with the pre-emptor as regards the shares in two villages, and that the plaintiff has no preference as against him in those two villages. The appeal is accordingly confined to Kote Mustaqil.
2. The only question which remains for consideration is whether in consequence of the failure of the plaintiff's claim to pre-empt the shares in the two houses, her claim to pre-empt the zamindari property in Kote Mustaqil as well must fail. No doubt it is a well settled principle that a pre-emptor cannot be allowed to pick and choose and pre-empt only as much property as he considers convenient to get. In that sense partial pre-emption cannot be allowed. On the other hand, it has been equally well settled in this Court that the mere fact that the vendee has included in the sale-deed some property as to which the pre-emptor has no right of pre-emption at all, would not deprive the pre-emptor of his right to preempt that property as to which he has a right. There has so far been no conflict of opinion on this point in this Court, and thousands of cases have been decided in which the pre-emptor has been allowed to claim pre-emption in respect of that portion to which he is entitled, leaving out the portion to which he was not entitled although the same was included in the sale-deed. In such cases an apportionment of the price has been allowed, and in many cases issues have been sent down to the Court below for making such an apportionment. So far as the Mahomedan law is concerned, there is no doubt that where several properties are sold in portions of which a pre-emptor has the right of pre-emption, he is entitled to preempt that portion only on payment of a proportionate price. On this point there was a consensus of opinion among the three Imams as quoted in the Fatawa Alamgiri, referred to in Oomur Khan v. Moorad Khan (1865) NWP Rep 173. The same rule of law was applied to a customary right of pre-emption by a Full Bench of this Court in Salig Ram v. Debi Prasad (1875) 7 NWPHCR 38 where although the sale-deed had included shares in two thoks together with a bungalow, garden and factory, the claim for pre-emption was allowed in respect of a share in one thok to the exclusion of another thok, and the claim for pre-empting the bungalow, garden and factory was also disallowed. The Court directed that it was necessary to ascertain separately the value of the several properties sold. The same rule was laid down in Durga Prasad v. Munsi (1884) 6 All 423 where it was pointed out that there was a general rule that:
Every suit for pre-emption must include the whole of the property, subject to the plaintiff's pre-emption conveyed by one bargain of sale to one stranger; and that a suit by a plaintiff pre-emptor, which does not include within its scope the whole of such pre-emptional property, is unmaintainable as being inconsistent with the nature and essence of the pre-emptive right.
3. It was pointed out that there was a clear exception in the case where under one and the same deed of sale, property subject to pre-emption is sold along with other property not subject to the right, the plaintiff pre-emptor cannot, ex necessitate rei sue for the whole property conveyed by the sale; but only for so much as is subject to his pre-emptive right.
4. The learned Counsel for the respondent concedes that this rule has been invariably followed in numerous cases by this Court. We may only refer to a recent case, Mohindra Man Singh v. Mahraj Singh 1923 20 ALJ 810, where it was held that:
It is the duty of the pre-emptor to claim preemption in respect of the whole of that part of the property sold as to which he has a right, failing which his whole claim must fail. If the vendee has included properties in which the plaintiff has no right to pre-empt, the pre-emptor is entitled to exclude them, but he must nevertheless claim pre-emption in respect of the whole of that part with regard to which he has the right.
5. The origin of the customary law in this province obviously was the rules of Mahomedan law which ware found prevalent in these parts, and the custom grew up somewhat on those lines. Apparently the idea was that if a pre-emptor has a right to pre-empt certain properties, the vendee cannot, by taking a sale-deed of that property along with other property, whether moveable or immoveable, deprive the pre-emptor of his right to pre-empt that property as to which he has a right. If this were not the law, then a vendee by taking a sale-deed of pre-emptible property along with any moveable property would prevent pre-emption altogether. Similarly the vendee may include shares in some villages in which he is a cosharer, and, therefore, on the same footing with the preemptor. In such a case the integrity of the bargaining will have to be broken and the claim decreed for the pre-emptible part only. Of course, in such cases the proportionate price has to be ascertained and paid. This position could not be disputed prior to the coming into force of the Pre-emption Act of 1922. This Act has, to a great extent, consolidated the old law, though undoubtedly in some particulars it has amended the old law also. The question is whether under the provisions of the new Act a different rule should now prevail. Prima facie the Pre-emption Act is quite comprehensive and exhaustive, and ordinarily it would not be necessary to import into it general principles which are not embodied therein. Section 11 confers a right of pre-emption on sale or foreclosure of any proprietary interest in land to persons mentioned in Section 12. If that section stood by itself, then a right of pre-emption would accrue in respect of the sale of all and every item of land sold; but Section 16 lays down certain restrictions and in essence embodies the principle of the prevention of partial pre-emption. The latter portion of it says:
No suit shall lie for enforcing a right of preemption in respect of a portion only of the property which the plaintiff is entitled to pre-empt under the Act.
6. A pre-emptor is, therefore, bound to enforce his right of pre-emption in respect of the entire property which he is entitled to pre-empt under the Pre-emption Act. Section 16 contains a prohibition which must be understood to be quite comprehensive, and any case which is not covered by this prohibition should be considered to be permissible. It would follow that where there is property which the pre-emptor is not entitled to preempt under the Act he can leave it out and his suit would not fail by reason of his having left out that property. It is only incumbent upon him to include in his claim all such property as he is entitled to pre-empt under the Act.
7. Before 1929 the words "under the Act" were no part of this section. The language then was far more ambiguous, and it was somewhat doubtful whether a pre-emptor was not bound to include in his claim all properties as to which he had a right of pre-emption whether under the Agra Preemption Act or under the Mahomedan law, or any contract or custom. Abdul Khan v. Shakira Bibi 1928 25 ALJ 1061 was a case where the pre-emptor had on account of his failure to perform the necessary demands disqualified himself from preempting the share in a certain house, and it was held that his claim to pre-empt the zamindari property also must fail in view of the provisions of Section 16 as it then stood. No doubt at p. 1063 there was an observation that even if the words like "in accordance with the provisions of this Act," or "preempt under the Act" were taken to be understood at the end of Section 16, it would make no difference because the right under the Mahomedan law was maintained under Section 5 of the Act, and, therefore, it could be said in one sense that the pre-emption of the house under the Mahomedan law was "in accordance with the provisions of Section 3." The observation was in the nature of an obiter dictum and was stated to be incorrect in Amjad Ali Khan v. Saadat Begum 1931 ALJ 269. In that case also the question of the applicability of Section 16, as it stood before the amendment, i.e., before the addition of the words "under the Act" arose. Referring to the case Abdul Khan v. Shakira Bibi 1928 25 ALJ 1061 the Bench observed:
At another place in the judgment it was remarked that the enforcement of such a right under the Mahomedan law would also be a pre-emption under the Act. This last expression was certainly inaccurate, but that was a case to which the Act in its entirety was applicable.
8. In the latter case the house as to which the plaintiff had lost his right was situated in the city of Moradabad, and it was held that by the mere fact that the plaintiff did not properly exercise his right under the Mahomedan law in respect of the house in the city of Moradabad, to which the Act is not applicable, he had not lost his right to pre-empt the property in the village to which the Act applied. The great hardship which might arise was pointed out by the Bench in Abdul Khan's case (5) at pp. 1062-3. Soon after the difficulty had been pointed out the Legislature amended Section 16 and added the words "under the Act." The additional words must have a special significance. The obvious intention is that a pre-emptor is no longer compelled to include in his claim properties to which he may be entitled under some law or custom outside the Agra Pre-emption Act and all that is now necessary is that he must bring his suit for pre-emption in respect of the property which he is entitled to pre-empt under the Agra Preemption Act.
9. The question is whether a right to preempt a house under the Mahomedan law can be said to be a right to which a pre-emptor is entitled under the Act. It has been strongly contended on behalf of the respondents that the proviso to Section 3, Agra Pre-emption Act makes it clear that the Mahomedan law has been made applicable by this Act to certain class of oases, and that accordingly when such a right is exercised, the right must be deemed to be exercised under the Agra Pre-emption Act. We are unable to accept this contention. If Section 3 had not been there, then the right of pre-emption under the Mahomedan law, or, for the matter of that, under the customary law or under special contracts, would have remained intact. The substantive portion of Section 3 takes away all such right in respect of interest in land in any area to which this Act applies; but the abolition 'of customary and other rights of this kind is subject to the proviso that where there is no right of pre-emption under Section 5 of (the Act, the provisions of Mahomedan (law of pre-emption shall not be affected in case the vendor and pre-emptor are both Muhammadans. It follows that the Mahomedan law has not been taken away by Section 3 in the case where there is no right of pre-emption under Section 5 and the vendor and the pre-emptor are both Muhammadans. The proviso must be read as part and parcel of Section 3 and the effect of the whole section is that in that particular case the Mahomedan law has remained untouched and has not been abrogated. The position is similar to the reservation in regard to other rights of pre-emption under special laws mentioned in Sections 6 and 7, Agra Pre-emption Act. The right of pre-emption under the Act mentioned therein has been preserved and not affected by the Agra Pre-emption Act. When such a right is enforced it cannot be said that the right is being enforced under the Agra Pre-emption Act, and not under those enactments. It is, therefore, difficult, to hold that a right of pre-emption in respect of a house exercised under the Mahomedan law can be said to be a right to which the plaintiff is entitled under the Pre-emption Act.
10. The learned Counsel for the respondents has relied very strongly on the recent pronouncement of their Lordships of the Privy Council in Birendra Bikram Singh v. Brija Mohan Panda 1934 ALJ 732. That was a case under the Oudh Laws Act of 1876. There a single mahal of taluqdari consisted of 163 villages and was sold as one property for a large sum of five lacks and 40 thousand rupees. The pre-emptor was not a co-sharer or a superior proprietor in any of these villages at all; but he was an under-proprietor in one out of the 163 villages, and claimed a right of pre-emption under Section 9, Oudh Laws Act, on the ground that he was a member of the village community and came within the third class specified therein. Two questions arose for consideration. The first was whether the under-proprietor who had an interest in one village only had a right to pre-empt that village; and the second was whether he could come within the meaning of the words 'member of the village community.' Their Lordships quoted the relevant Sections 6 to 13 in extenso in order to consider whether under the provisions of that special enactment the plaintiff's claim could be decreed. Now under the Oudh Laws Act, Section 10 made it obligatory on the vendor to give notice to the persons concerned of the price at which he is willing to sell the property, and also made it necessary that such notice should be given through the Court within the local limits of whose jurisdiction the property or any part thereof was situated. Under Section 14, Agra Pre-emption Act, however sending of the notice is by no means obligatory but is purely discretionary. It is also a fact that in the Oudh Laws Act there is no special section like Section 16 embodying the rule of partial pre-emption. On an examination of the provisions of that Act their Lordships, overruling the cases of the Oudh Court, came to the conclusion that an under-proprietor who had an interest in one village only which was a part of a whole mahal of 163 villages which had been sold as one property had no right to pre-empt one part of the entire mahal, as there was no duty on the vendor to name any properties other than the full price of 5 lacs 50 thousand rupees, which, of course, the under-proprietor would not be prepared to pay for one village only. We are not concerned with the other question which was decided in that case. Obviously that case was decided on the language of the sections in the Oudh Laws Act. In Oudh the right of pre-emption was purely a creature of statute. The provisions of the Agra Pre-emption Act embody the previous customary law of this province and are not identical with those of the Oudh Laws Act; in particular Section 16 has been specially enacted, which prima facie is intended to be comprehensive and to include the whole rule of partial pre-emption.
11. We have to interpret that section in this case. It therefore seems to us that the ruling of the Privy Council under the Oudh Laws cannot be said to have overruled the long series of decisions of this Court arising under the customary law, or under the Agra Pre-emption Act. We are accordingly of the opinion that if the pre-emptor was not entitled to pre-empt the house under the Agra Pre-emption Act, then neither the omission to preempt them nor her disqualification in preempting the same is fatal to her claim as regards the properties which she is entitled to pre-empt under the Agra Preemption Act. As stated above, the plaintiff's husband was entitled to a half share in the site and the entire houses standing thereon. It is very difficult to say that the two houses should be considered to be attached to or permanently fastened to anything attached to the half-share in the land which was sold. If the husband had been the owner of the entire site on which the houses stood, the position would have been different. Following the interpretation of the definition of the word 'land' in Section 4(3) as laid down in Mohindra Man Singh v. Mahraj Singh 1923 20 ALJ 810 we must hold that the houses were not land within the meaning of the Agra Pre-emption Act. Accordingly we allow the appeal and decree the plaintiff's claim for pre-emption of the share in Kote Mustaqil on payment of the proportionate price. We therefore send down the following issue to the Court below for determination: What was the proportionate price of the share pre-empted in village Kote Mustaqil? The parties will be at liberty to produce fresh evidence, if necessary. The finding should be returned within three months from this date. The usual ten days will be allowed for objections.