ivil Appeal No 672 of 1962
Appeal by special leave from the judgment and order dated December 10 1958 of the Patna High Court in Appeal from Appellate Decree No 716 of 1954
SP Varma for the appellants
Sarjoo Prasad and Mohan Behari Lai for the respondents
107 October 10 1963
The Judgment of PB Gajendragadkar K Subba Rao KN Wanchoo and JC Shah JJ was delivered by Subba Rao J Raghubar Dayal J delivered a separate Opinion
SUBBA RAO J
This appeal by special leave is directed against the judgment of the High Court of  Judicature at Patna and raises mainly the question of the scope of the right of pre emption under the Mohamedan law as applied by custom in Bihar
The facts lie in a small compass
On June 17 1930 Chathilal Sah of Sahebganj who was the owner of a house and two golas bearing holdings Nos 184 and 185 situated in mahalla Sahebganj executed a will bequeathing the said property to his daughter Parbati Kuer and nephew Ram Swarup in equal shares
Under the said will Ram Swarup was to get the entire property in case Parbati Kuer died unmarried or issueless
On July 18 1940 Ram Swarup sold one half of the said property to the plaintiff respondent 1
On July 27 1942 the plaintiff respondent 1 acquired under a patta some lands adjoining the said property
On October 10 1949 defendant 3 respondent 3 herein alleging to be the husband of the said Parbati Kuer sold the remaining half of the disputed property to defendants 1 and 2
It may be mentioned at this stage that the land on which the said house and golas stand is Dih Basgit Lagani rent paying land
On December 10 1949 respondent 1 filed Title Suit No 214 of 1949 in the First Court of the Munsif at Chapra for a declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the said property to him
To that suit the first appellant and his two sons were made defendants 1 2 and 2A and their vendor was made defendant 3
The defendants contested the suit inter alia on the ground that the ceremonies of pre emption were not performed and that under the Mohamedan law the plaintiff was not entitled to pre emption as the land on which the said house and golas stood was rent paying land
The learned Munsif dismissed the suit
But on appeal the Subordinate 108 Judge of Chapra allowed the appeal and granted a decree for pre emption in favour of the plaintiff respondent 1
On appeal the High Court agreed with the Subordinate Judge and dismissed the appeal
Defendants 1 2 and 2A have preferred the present appeal by special leave against the Judgment of the High Court
Mr Varma learned counsel for the appellants raised before us the following four points 1 the right of pre emption infringes the fundamental right of a citizen under article 191 f of the Constitution and it is not saved by cl
5 thereof 2 the first respondent failed to establish his title and therefore his suit should have been dismissed on that ground 3 the ceremonies of pre emption were performed only on October 11 1949 whereas the sale deed in favour of the appellants was executed and registered on October 20 1949 and as the said performance of the ceremonies was premature they having been performed before the sale was completed the right of pre emption could not be enforced and 4 there is no right of pre emption in respect of leasehold interest and therefore there cannot be a right of pre emption in respect of a house standing on such land as Mohamedan law does not recognize a right of pre emption in mere super structure
Mr Sarjoo Prasad learned counsel for the respondents controverts the correctness of the said propositions
We shall deal with his arguments in the course of the judgment
To appreciate the first contention some dates may be recapitulated
Respondent 1 purchased one half share of the property by a sale deed dated July 18 1940
Appellants 1 and 2 purchased the other half of the property on October 10 1949
The suit was filed on December 10 1949
The Munsif dismissed the suit on April 14 1953
The Constitution came into force on January 26 1950
The appellants had no fundamental right on the date when they purchased the property
But it is said that under the law of pre emption a person who seeks the assistance of a court with a view to enforce the right of pre emption is bound to establish that the 109 right existed on the date of the sale on the date of the institution of the suit and also on the date of the decree of the primary court See Nuri Mian vs Ambica Singh1 and therefore the restriction on the appellants  fundamental right to acquire the property was not finally imposed before the Constitution but became crystallized into an irrevocable restriction only at the time of the passing of the decree which was subsequent to the coming into force of the Constitution
We need not express our opinion on this question as it has been held by this Court in Bhau Ram vs Baij Nath2 that a right of pre emption vis a vis co sharers was not an unreasonable restriction on the fundamental right of a person to acquire hold and dispose of property
But learned counsel contends that decision should be confined to a case of co sharers who are related to each other and should not be extended to co sharers who are not related to each other
Reliance is placed upon the following observations in that judgment found at p 1483 If an outsider is introduced as a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common
 This sentence does not in our view sustain the distinction sought to be made by the learned counsel between co sharers who are relatives and co sharers who are not relatives
The word outsider in the said passage can only mean a person who is not a co sharer
The judgment of this Court finally settled the question as between co sharers
Following the decision we hold that the law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 19 1 f of the Constitution
The second question namely that of the plaintiff s title does not call for consideration by us
It was not raised in the courts below and it being a pure question of fact we cannot allow it to be raised for the first time before us
We therefore disallow it
1 Cal
2  110 The next point raised by the learned counsel is that the ceremonies of pre emption performed in this case were premature as the sale was completed only on October 20 1949 whereas the ceremonies were performed on October 11 1949
This Court by a majority held in Ram Saran vs Domini Kuer1 that the registration under the Registration Act is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in section 61 of that Act
Learned counsel contends that a perusal of the sale deed dated October 10 1949 ex facie shows that it was copied only on October 20 1949
The question as to when a document was copied out in the concerned register is certainly a question of fact
The argument was not raised either before the trial court or before the first appellate court
No issue was framed on the point
It was raised for the first time before the High Court
The learned Judges of the High Court pointed out that if the appellants wanted to take advantage of the said point it was their duty to have raised it either in the trial court or in the first appellate court and to have adduced evidence by calling for the register from the registration department to show on what date the actual copying of the record was made under section 61 of the Registration Act
In the circumstances the learned Judges refused to allow the appellants to raise the point
The High Court in our opinion was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal
If the plea had been taken at the earliest point of time the respondents might have had many defences and might have explained the various dates found on the documents
We cannot allow the appellants to raise the said plea
Now we come to the substantial point raised in the appeal
The right of pre emption is sought to be enforced in respect of a rent paying land with a house thereon
Learned counsel for the appellants contends that the right of pre emption does not arise 1  111 on the sale of a leasehold interest in land and that in the absence of such a right there cannot be a right of pre emption in respect of the super structure alone
Learned counsel for the respondents on the other hand contends that under Mohamedan law the right of pre emption exists in the case of akar ie a house or mansion to enable the co sharer to have peaceful enjoyment thereof and that the fact that there is no right of pre emption in respect of a leasehold interest in land does not in any way detract from that right
He further contends that whatever might have been the strict incidents of the right of pre emption under Mohamedan law this Court cannot ignore the modern evolution of law recognizing the transferability and heritability of leasehold interest in land
Before we consider the problem thus presented for our decision it would be convenient at the outset to notice certain general principles relevant to the present enquiry
It has not been disputed that Hindus in the Province of Bihar came to adopt the Mohamedan law of pre emption as a custom
This was because under the Muslim rule the law of pre emption under the Mohamedan law was administered as a rule of common law of the land in those parts of the country which came under their domination
We must therefore
look to Mohamedan law to ascertain the incidents of the right of pre emption unless it is established in a particular case that by custom the said law has been modified to any extent
Being a customary law it is not permissible for courts to extend the custom beyond the limits within which upto now it has been recognized
The concept of rationalization is out of place in the ascertainment of the customary incidents of the right of pre emption
This Court in Bishan Singh vs Khazan Singh1 considered the law on the subject and laid down the propositions flowing from the discussion
The following propositions are relevant to the present enquiry 1 The right of pre emption is simply a right of sub 1 78
112 situation but not of re purchase ie the pre emptor takes the entire bargain and steps into the shoes of the original vendee 2 it is a right to acquire the whole of the property sold and not a share of it and 3 the right being a very weak right it can be defeated by all legitimate methods such as the vendee allowing the claimant of a superior or equal right being substituted in his place
It is therefore settled law that the pre emptor must take the entire bargain he cannot split up the bargain and claim to be substituted in respect of a portion of it either on the ground that he does not require a part of it or for the reason that he is entitled to claim pre emption only in respect of a part of it
Further the right being a weak one a court need not be astute to rationalize the doctrine so as to make it fit into modern trends of property law
Indeed it should be reluctant to extend it beyond the incidents clearly recognized by Mohamedan law or by custom
With this background let us now turn to the question that arises in this case
The subject can conveniently be considered under three heads the pre emptor ii the vendor and iii the property in respect of which the right is claimed
In Baillie s Digest of Moohummudan Law the following passage appears at p 478 When it is said that akar such as mansions vine yards and other kinds of land are proper objects of the right of pre emption it is by virtue of a right of milk or ownership that they are so
 Mahmood 3
in Gobind Dayal vs Inayatullah1 observed at p 779 thus pre emption is a right which the owner of certain immovable property possesses as such for the quiet enjoyment of that immovable property to obtain in substitution for the buyer proprietary possession of certain other immovable property not his own on such terms as these 113 on which such latter immovable property is sold to another person
 The same learned Judge in Sakina Bibi vs Amiran1 states that in the pre emptive tenement the tenement by the ownership of which the pre emptor wants to exercise his right of pre emption  the pre emptor should have vested ownership and not a mere expectancy of inheritance or a reversionary right or any other kind of contingent right or any interest which falls short of full ownership
Beaumont CJ in Dashrathlal vs Bai Dhondubai2 after considering the law on the subject accepted the view that the custom of preemption only exists as between free holders that is to say neighbouring lands in respect whereof the custom is claimed to apply must be freehold and that the land sought to be pre empted must also be free hold
This Court in Shri Audh Bihari Singh vs Gajadhar Jaipuria3 has laid down the correct legal position thus   the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself This legal requirement of the full ownership of the pre emptor may be traced either to the fact that in ancient times Mohamedan law did hot recognize leases although it recognized hire ofand for the purpose of user or to the circumstance that the right was conferred to enable the pre emptor to prevent an undesirable person from becoming his neighbour which would not be the case if he was only a temporary occupant of the property in respect whereof the right arose
Whatever may be the reason it may safely be held now that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption
1 1888ILR10 All 472 477
2 AIR 1941 Bom262
3   80 1 SCI64 8 114 The next question namely the quantum of interest which the vender shall possess in the land sought to be pre empted depends upon the doctrine of reciprocity
Unless the land in respect of which the custom is claimed and the land sought to be pre empted are freeholds the principle of reciprocity will be defeated
To illustrate A has full ownership in a land in respect of which he claims the right of pre emptionthe co sharer vendor has only a leasehold interest in respect of the land sought to be pre empted if the pre emptor had sold the land earlier the vendor having only a leasehold interest in his land could not have claimed the right of pre emption in respect of his land for he had no full ownership in the land
The absence of this reciprocity gives an advantage to one of the sharers which the Mohamedan law does not permit
This doctrine of reciprocity has been succinctly stated by Mahmood J in Gobind Dayal vs Inavatullah1 in the passage we have extracted earlier
In Mt Bibi Saleha vs Amiruddin2 the said doctrine was restated
It was held therein that a mukarraridar holding under a co sharer had no right to pre empt as against another co sharer and as a mukarraridar could not claim pre emption the co sharer on the doctrine of reciprocity which is well understood in the Mohamedan law could not claim pre emption against the mukarraridar
A Full Bench of the Bombay High Court in Deshrathlal vs Bai Dhondubai3 has given its approval to the said principle
This Court in Shri Audh Behari Singh vs Gajadhar Jaipuria4 succinctly put the legal position in the following words The crux of the whole thing is that the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself
 That leasehold interest is not subject to the law of pre emption has been well settled see Baboo Ram 1 All
2 1929 ISR 8 pat 251
2 AIR 1941 Bom
4  80 115 Golam Singh vs Nursingh Sabey1 Mohammad Jamil vs Khub Lal Raut2 Sakina Bibi vs Amiran3 Phul Mohammad Khan vs Qazi Kutubuddin4 Moorooly Ram vs Baboo Hari Ram5 Rameshwar Lal vs Ramdeo Jha6 and Nathuni Ram vs Gopinath7
Indeed this legal position has not been controverted by learned counsel for the respondents
Now let us address ourselves to the main contention of the respondents namely that the right of pre emption exists in the Mohamedan law in respect of akar which includes a building that the main purpose intended to be served by the said right is to prevent an undesirable person from becoming the sharer of the house and that therefore it would be unrealistic to negative that right in the case of a house on the ground that the land on which the house stands is a leasehold interest
Reliance is placed upon the following passage in Charles Hamilton s The Hedaya 2nd Edn at p 558 It is observed in the abridgment of Kadooree that Shaffa does not affect even a house or trees when sold separately from the ground on which they stand
This opinion which is also mentioned in the Mabsoot is approved for as buildings and trees are not of a permanent nature they are therefore of the class of movables
 Relying upon this passage it is contended that as in the present case the house was sold along with the ground the doctrine of Shaffa applies to the house
But this passage must be understood on the assumption that the right of pre emption exists in respect of the land on which the house stands
In Baillie s Digest of Moohummudan Law the legal position is made clear
Therein the author says at pp
479 480 When a person has purchased a palm tree to cut it down or when he has purchased it absolutely there is no right of pre emption in it
But 1 2 1921 5 Pat
LJ 740
31888 ILR 10 All 472 477
4 AIR 1937 Pat
5 1867 8 WR106
6 AIR 1957 Pat
7 AIR 1962 Pat
226 FB 116 if it be purchased with its roots and the ground on which it stands it is liable to the right
The rule is the same with regard to buildings purchased for removal and the same buildings purchased with their foundations and there is no preemption in the former case while there is in the latter
 This passage indicates that a building sold as a superstructure is not subject to the right of pre emption for it would be in effect a sale of a movable
Unless the house is sold with its foundations that is to say with the land on which it stands there is no right of pre emption in regard thereto
Though it may be said that in the present case the house was sold with its foundations the same principle will have to be applied for the right of pre emption cannot be invoked in the case of a leasehold interest
In effect and substance the right is sought to be invoked in the case of the building decors the foundations which the law does not permit
Reliance is placed upon the proposition found in para
370 of Wilson s Anglo Muhammadan Law which reads If a house is sold apart from the ground on which it stands with a view to being pulled down so that it is in fact a sale of the materials no right of pre emption arises with respect to it
If it is sold for occupation as a house then preemption can be claimed on the ground of vicinage by the owner of any adjoining land or house and perhaps by the owner of the site itself supposing him to be a different person from the vendor of the house even though he should happen to own no land except that covered by the house
 It is said that the words in the brackets conceding the right of the owner of a site to pre empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre emption in respect thereof the sale of the house can be pre empted
The opening word 117 of the passage namely perhaps shows that the author himself is not sure of the legal position
That apart the illustration only deals with a land in respect of which there can be a right of pre emption ie the owner of the land has a freehold interest therein
Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur vs Nur Ali1
There a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed but without the ownership of the site
It was held that the right of pre emption under the Mohamedan law attached to such house
The judgment is not a considered one
The learned Judges observed at p 100 thus The seller not only sold the materials of the house but such interest as he possessed as an occupier of the soil
The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed   The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site
This judgment no doubt supports the contention of learned counsel for the respondents but the learned Judges have not considered the well settled principle that there cannot be a right of pre emption in respect of a land over which the vendor has no full ownership
The decision suffers from the infirmity that the said well settled principle has escaped the attention of the court
Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh vs Bhagwati Pandey2
There the question was whether the pre emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre emption
The pre emptor was birtdar though he was described as a tenant in the Record of Rights for a particular purpose
The court held 1 1880ILR 2 All
2 AIR 1934 Pat
596 118 that he was a full owner
This decision does not really support the respondents
There is a direct decision of a Full Bench of the Patna High Court on the question now raised in Nathuni Ram vs Gopinath1
There as here a right of pre emption was claimed in respect of a house which stood on a leasehold land
After a full discussion of the subject Choudhary J speaking for the Full Bench came to the following decision at p 229 On a careful consideration of the authorities and the principle of law involved in the case my concluded opinion is thatin case of a sale of different properties the
right of pre emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently where the land is sold with a house thereon pre emption cannot be allowed
with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property
The sale of a house for inhabitation or occupation without the sale of its foundations and the land over which the foundations stand is inconceivable except as pointed out in Hedaya in case of the sale of the upper story of a house
 We agree with the conclusion
As this judgment has considered the earlier decisions on the subject we need not again refer to them
To summarize A right of pre emption is annexed to full ownership of property of co sharers
It is not attached to property held on subordinate tenure such as leases etc
It is an incident of the co sharer s property operating both as a right and as a burden in different situations
It is a right of substitution taking in the entire bargain
It must take the whole or nothing
It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the 1 AIR 1962 Pat 226 FB 119 property transferred
It is reciprocal in operation that is if the situation was reversed and the vendor became the pre emptor he should be in a position to pre empt the co sharer s whole bargain
The two doctrines which may for convenience be referred to as entire bargain and reciprocity cannot  operate unless both the co sharers are full owners of their respective properties
Akar or a house standing on a freehold land is subject to the right of preemption but a house on a leasehold land stands on a different footing
As there is no right of preemption in respect of a land held on a subordinate tenure the right of pre emption cannot be enforced against the house either as the pre emptor cannot be substituted for the entire bargain
The right must fall also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables
We therefore hold that the first respondent has no right to pre empt the sale executed in favour of the appellants
In the result the appeal is allowed the decrees of the Subordinate Judge s Court and the High Court are set aside and that of the trial Court is restored
The appellants will have their costs throughout
RAGHUBAR DAYAL J
I agree that the law of pre emption regarding co sharers does not infringe the fundamental right conferred under article 191g that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption that the vendor must have proprietary right in the property sold and sought to be pre empted that the sale of lease hold interest is not subject to the law of pre emption and that the sale of the super structure of a house is not pre emptible
I also agree that the pre emptor must pre empt for the entire property sold if that be pre emptible
I would however not like to express an opinion upon the point whether in certain circumstances the pre emptor can or cannot 120 pre empt part of the property sold
There have been cases where partial pre emption has been allowed
Some of the exceptional cases have been referred to at p 778 of Muslim Law as Administered in India  Pakistan  by KP Saksena IV Edition
In Zainab Bibi vs Umar Havat Khan1 the preemptor was allowed to pre empt that part of the property sold which was pre emptible and in support of the decision it was stated at p 457 So far as the Mohammedan 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 Omur Khan vs Mooras Khan 1865 NWP HCR 173 174 This Court did express an opinion in Bishan Singh vs Khazan Singh2 The general law of pre emption does not recognize any right to claim a share in the property sold when there are rival claimants
It is well established that the right of pre emption is a right to acquire the whole of the property sold in preference to other persons See Mool Chand vs Ganga Jal ILR 11 Lah
258 273  In that case the dispute lay between two rival preemptors and arose in these circumstances
One preemptor pre empted the entire sale and obtained the decree on condition that he would deposit a certain amount within a certain time
But before he could deposit the amount the rival pre emptor instituted another suit for the pre emption of the entire property sold and impleaded in that suit the first pre emptor
The rights of the two pre emptors were found to be equal
The entire property sold was clearly pre emptible
It was in this context that the observation 1 2  884
121 was made
It would be a matter for consideration at the appropriate time whether there can be any exception to this general rule that the entire property sold must be pre emptor by the pre emptor in his suit
I would therefore rest my decision on the facts that the sale of the lease hold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and that therefore the plaintiff pre emptor cannot pre empt the sale of the property sold
I therefore agree that the appeal be allowed the decrees of the Subordinate Judge and the High Court be set aside and that of the trial Court be restored and that the appellants would have their costs throughout
Appeal allowed


Summary:
One Chathilal Sah of Sahebganj Bihar was the owner of a house and two golas which stood on a rent paying land and he executed a will bequeathing the said property to his daughter and nephew in equal shares
In 1940 the nephew sold one half of the property to respondent No 1 who two years later acquired under a patta some adjoining lands
In 1949 respondent No 3 alleging to be the husband of the daughter sold the remaining half of the property to appellants 1 and 2
In December 1949 respondent filed a title suit for declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the same to him
The trial court dismissed the suit but in the appeal before the Subordinate Judge he succeeded and the High Court dismissed the appeal presented by the appellant
The present appeal is by special leave granted by this Court
Before this Court four contentions were raised by the appellants two of which being pure questions of fact and not having been raised in the courts below were not considered by this Court
The questions of law raised were a the right of pre emption infringes the fundamental right of a citizen under article 19 1 f of the Constitution and b there is no right of pre emption in respect of leasehold interest and therefore there cannot be a right of pre emption in respect of a house standing on such land
Held i The law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 191 f of the Constitution
Bahu Ram vs Baij Nath 1962 Supp 3 SCR 724 and Nuri Mian vs
Ambica Singh Cal
ii A right of pre emption is annexed to full ownership of property of co sharers
It is not attached to property held on subordinate tenure such as lease etc
It is an incident of the co sharer s property operating both as a right and as a burden in different situations
It is a right of substitution taking in the entire bargain
It must take the whole or nothing
It does not matter if the inability to take the house arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred
It is reciprocal in operation that is if the situation was reversed and the vendor became the pre emptor he should 106 be in a position to pre empt the co sharers  whole bargains
The two doctrines which may for convenience be referred to as entire bargain and reciprocity cannot operate unless both the co sharers are full owners of their respective properties
Akar or a house standing on a freehold land is subject to the right of preemption but a house on a leasehold land stands on a different footing
As there is no right of pre emption in respect of a land on subordinate tenure the right of pre emption cannot be enforced against the house either as the pre emptor cannot be substituted for the entire bargain
The right must fail also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables
Case law reviewed
Bishan Singh vs Khazan Singh   Goblad Dayal vs Inayatullah All 775 Sakina Bibi vs Amiran All 472 Dashrathlal vs Bai Dhondubai AIR 1941 Bom
262 Shri Audh Behari Singh vs Gajadhar Jaipuria   Mr Bibi Saleha vs Amiruddin1929ILR 8 Pat 251 Baboo Ram Golam Singh vs Nursingh Sabey Mohammad Jamil vs Khub Lal Raut  Phul Mohammad Khan vs Qazi Kutubuddin AIR 1937 Pat
578 Mooroof ly Ram vs Baboo Hari Ram  Rameshwar Lal vs Ramdeo Jha AIR 1957 Pat
695 Nathuni Ram vs Gopinath AIR 1962 Pat 226 FB Zahur vs Nur Ali All 99 and Chariter Dusadh vs Bhagwati Pandey AIR 1934 Pat
Per Raghubar Dayal J While agreeing with the majority judgment on other points no opinion is expressed on the point whether in certain circumstances the pre emptor can or cannot pre empt part of the property sold
There have been cases where partial pre emption has been allowed
Zainab Bibi vs Umar Hayat Khan 1936 All
LJ 456 and Bishan Singh vs Khazan Singh  Sale of leasehold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and therefore the plaintiff pre emptor cannot pre empt the property sold
The appeal should be allowed