Roy, J. - (1.) This is a second appeal by the Plaintiffs arising out of a suit for pre -emption under the Mohamedan law. Connected with this second appeal is a civil revision by Mushtaq Ali Defendant No. 1, the vendee, who had put in an application u/O. 21, R. 97 of the Code of Civil Procedure and which was dismissed by the learned Munsif on 12 -12 -1950.
(2.) The facts are not disputed. The Plaintiffs and the Defendants Nos. 2, 3 and 4 belonged to one family. Defendant No. 2 Smt. Bashiran is the wife of one Nabi Bux. Nabi Bux and Smt. Bashiran have a daughter Mahmodi Begum, who is Plaintiff No. 1, and three sons Mohammad Nabi, Aley Nabi and Haidar Bux. Smt. Aisha Begum Defendant No. 3 is the wife of Mohammad Nabi. Smt. Sarwari Begum Defendant No. 4 is the wife of Aley Nabi. Smt. Sultani Plaintiff No. 2 is the daughter of Haidar Bux. On 24 8 -1945, Defendants Nos. 2, 3 and 4 executed a sale -deed in favour of Defendant No. 1 with respect to two houses in the city of Moradabad for a consideration of Rs. 2,000. One of the houses belonged in its entirety to Defendants Nos. 2, 3 and 4. In regard to the other house it was asserted on behalf of the Plaintiffs that 5/6th of it belonged to them in their own right and the remaining 1 /6th of it belonged to the vendors. The Plaintiffs came to court upon the allegation that the sale of 5/6th of the house which belonged to them in their own right was void and inoprative and they claimed a declaration to that effect. With regard to the remaining l/6th share in that house and also with regard to the whole of the other house, the Plaintiffs contended that they as shafi -i -jar and shafi -i -khalit were entitled to pre -empt upon payment of the proportionate price. They further contended that the necessary talabs had been made. The suit was resisted by Defendant No. 1 on the ground that the Plaintiffs were not the owners of 5/6th share in one of these houses; that the suit was bad for partial pre -emption and that the necessary talabs had not been made. The trial court held that the Plaintiffs were owners of 5/6 share in one of these houses in their own right and they were entitled to the declaration asked for by them; that the suit was bad for partial pre -emption and that since the necessary talabs had not been made, the Plaintiffs were not entitled to a decree for pre -emption. In that court the counsel for the parties gave an agreed statement to the effect that house No. 1 was valued at Rs. 1,300 and house No. 2 was valued at Rs. 700. An appeal and a cross -objection were taken before the lower appellate court. The lower appellate court affirmed the finding of the trial court to the effect that the Plaintiffs had 5/6th share in one of the houses and the sale -deed was void to that extent. The lower appellate court further held that the necessary demand had been made; that the suit was not bad for partial pre -emption and that the Plaintiffs were entitled to a decree for pre -emption of l/6th share in one of the houses and of the whole of the other house on payment of a sum of Rs. 2,000. From the decision of the lower appellate court an appeal has been brought to this Court by the Plaintiffs, and a cross objection by Defendant No. 1. The two came up for hearing before a learned single Judge of this Court. The learned single Judge has referred it to a Bench as in his opinion the matter involved certain important questions of law.
(3.) Three points have been stressed before us by Learned Counsel for the parties, namely, (1) What, if any, is the share of the Plaintiffs in the house covered by relief A of the plaint. (2) Where, under one and the same deed of sale property as to which the pre -emptor has a right of pre -emption under the Mohammedan law is sold along with other property as to which he has no right of pre -emption under that law, can he sue for pre -emption of property which he is entitled to pre -empt, or would his suit fail by reason of his having excluded property which he is not entitled to pre -empt under law. And (3) was the suit bad for partial pre -emption ?;