MT ZAINAB BIBI Vs. UMAR HAYAT KHAN

JUDGEMENT

(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/8 share in the zamindari properties and l/4 share in the two houses. On 15 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/s. 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/s. 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/s. 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.