JUDGMENT Ghulam Hasan, J. - These second appeals arise out of a single judgment in a pre-emption case. Appeal No. 237 of 1939 is filed by Sheo Narain, the Defendant vendee, while the two other appeals are filed by Mst. Janak Dulari, one of the rival pre-emptors. The Respondent in all the appeals is Ram Khelawan pre-emptor whose suit was decreed both against Sheo Narain and Mst. Janak Dulari. The suit of Mst. Janak Dulari was dismissed. 2. The sale which was the subject-matter of pre-emption was made on the 13th July, 1937, by Madhuri Singh in favour of Sheo Narain for the ostensible sale consideration of Rs. 400 in respect of certain plots and two houses. Originally four suits were brought for pre-emption. Two of these were dismissed summarily and no appeals were filed against their dismissal. The suits of Ram Khelawan and Mst. Janak Dulari are the only suits which were decided by the trial Court. Both Ram Khelawan and Mst. Janak Dulari alleged in their suits that the sale consideration was fictitious and the real consideration was Rs. 225 only. Admittedly the property was not separately assessed to Government revenue but both the pre-emptors wrongly assuming it to be so mentioned in their plaints that the land revenue payable in respect of the property sold was Rs. 3-8-3 and paid court-fees at six times that figure. At an earlier stage of the case it was pointed out to the pre-emptors that the court-fee paid was wrong and that it should be paid according to the market value. Eventually the two pre-emptors paid court-fee on the sum of Rs. 225 Which according to them was the real consideration of the deed. 3. The vendee resisted the suit. His defence was that the entire property in suit was not pre-emptible, that the suit for pertial pre-emption was not maintainable inasmuch as the pre-emptors had not included a portion of the property sold in the suit. He did not admit that the price was fictitious. He objected to the court-fee as insufficient. Issues were framed on the 11th October, 1938. 4. On the 5th February, 1939, counsel for Ram Khelawan admited that Mst. Janak Dulari had got a preferential right of preemption. On the same date the pre-emptors and the vendee agreed that the sale consideration be fixed at Rs. 338 only. He objected to the court-fee as insufficient. Issues were framed on the 11th October, 1938. 4. On the 5th February, 1939, counsel for Ram Khelawan admited that Mst. Janak Dulari had got a preferential right of preemption. On the same date the pre-emptors and the vendee agreed that the sale consideration be fixed at Rs. 338 only. The property was subject to two encumbrances of Rs. 177 and the vendee admitted that he had not paid these encumbrances which were made dehanid in sale deed. Parties further agreed that if the pre-emptors were granted a decree, it should be on payment of Rs. 161 to the vendee. This figure was arrived at after deducting the value of the two encumbrances. Parties produced no oral evidence in the case. 5. As both the pre-emptors agreed that the real price was Rs. 338 the Court called upon them to pay additional court-fee of Rs. 8 each by a certain date. Ram Khelawan paid the deficiency but Mst. Janak Dulari did not. Accordingly her plaint was rejected and Ram Khelawan's suit was ultimately decreed. Mst. Janak Dulari tried to have this order set aside and asked for leave to deposit the deficiency in court-fee but this prayer was also rejected. The suit was filed on the 13th July, 1938, the last date of limitation. Ram Khelawan in his plaint omitted to include a certain riyaya's house and when it was objected by the vendee that the suit for partial pre-emption was not Maintainable, he made an application on the 29th August for amendment of the plaint so as to include the property omitted. This application was allowed on the 14th September. The vendee was allowed costs which were paid. 6. The trial Court found that the entire property sold was pre-emptible and the suit was maintainable. In regard to the riyaya's house the view taken by the trial Court was that the vendor owned proprietary rights in the house as the house was situate in the village in which he was a superior proprietor and what he transferred under the deed was his rights therein as a superior proprietor. The trial Court went on to say:-- "There can be no doubt that the rights of a superior proprietor in riyaya's house can be pre-empted". 7. The trial Court went on to say:-- "There can be no doubt that the rights of a superior proprietor in riyaya's house can be pre-empted". 7. The trial Court did not think that the suit was either for pre emption of the property which was not pre-emptible or for pre-emption of only a part of the property sold. Accordingly the suit of Ram Khelawan was decreed on payment of Rs. 161 to Sheo Narain. As I have already stated before the plaint of Mst. Janak Dulari's suit was rejected for failure to pay the deficiency in court-fee and her suit was dismissed. 8. Three appeals were filed before the lower appellate Court, two by Mst. Janak Dulari and one by the vendee Sheo Narain. The position taken up by Mst. Janak Dulari in her appeal was that she was liable to pay court-fee on Rs. 225 which according to her was the market value of the property and not on Rs. 338. The lower appellate Court, however, held having agreed that the sale consideration was Rs. 338, that figure correctly represented the market value of the property, in the absence of any other evidence produced by the parties. The lower appellate Court further held that the property was sold free from encumbrances that the vendor had taken upon himself to discharge them and the value of these encumbrances could not. therefore, be deducted from the sale consideration in determining the market value of the property sold, Mst. Janak Dulari's appeals were, therefore, dismissed. As regards the appeal of Sheo Narain, the lower appellate Court held that the trial Court was justified in ordering the amendment of the plaint and as the riyaya's house had been included by reason of the amendment, no question of partial pre-emption, arose. It was further held that what was sold by the vendor was not the riyaya's house but his right of reversion in that house as a zamindar and this fight was not incapable of being pre-empted. In the result the vendee's appeal was also dismissed. 9. Mst. Janak Dulari and Sheo Narain have acordingly filed second appeals in this Court as has been stated above. 10. I take up the appeal of Mst. Janak Dulari against the dismissal of her suit first. In the result the vendee's appeal was also dismissed. 9. Mst. Janak Dulari and Sheo Narain have acordingly filed second appeals in this Court as has been stated above. 10. I take up the appeal of Mst. Janak Dulari against the dismissal of her suit first. The only question that arises in this appeal is whether the view taken by the Courts below that Janak Dulari was liable to pay the court-fee on Rs. 338 was correct or not. Section 7(vi) of the Court Fees Act says that in suits to enforce a right of pre-emption court-fee is to be paid according to the value computed in accordance with paragraph (v) of Section 7 of the land, building or garden in respect of which the right is claimed. Section 7(v) says that in suits for possession of land, buildings or gardens court-fees is to be paid according to the value of the subject matter; and such value shall be deemed to be-- (1)(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under Clauses (a) (b) or (c) the market value of the land, which shall be determined by multiplying by fifteen the rental value of the land including assumed rent on proprietary cultivation. 11. It is clear, therefore, from these provisions that the court-fee is to be paid according to the market value of land. The test laid down in Section 7(v)(1)(d) does not apply because there is no evidence of the rental value of the land in the present case. On behalf of Mst. Janak Dulari, it has been argued that the market value means the pre-emptive value and this value should be deemed to be the cash paid after deducting the value of the encumbrances. I am unable to accept this contention. Section 13 of the Oudh Laws Act says that where the Court finds that the price is not fixed in good faith the Court should fix such price as appears to it to be the fair market value of the property sold. In the present case the parties agreed that Rs. 338, and not Rs. 400 the ostensible consideration of the deed, was the correct price. In the present case the parties agreed that Rs. 338, and not Rs. 400 the ostensible consideration of the deed, was the correct price. In view of this agreement the Court was relieved of the necessity of fixing the price according to the fair market value of the property sold. This sum of Rs. 338 must, therefore, be taken to be the fair market value as agreed to by the parties, both of whom declined to produce any evidence on that point Mst. Janak Dulari's conduct in offering to pay the deficiency in court-fee on the agreed price of Rs. 338 shows that she did not dispute this sum to be the fair market value. Under these circumstances the trial Court was perfectly justified in ordering payment of court-fee on the sum of Rs. 338. It is true that the encumbrances were not discharged by the vendee but there can be no doubt that the property was sold subject to the encumbrances and the vendee was bound to discharge them. There is no good reason, therefore, for deducting the value of those encumbrances from the sum of Rs. 338 which was agreed to be the proper price if the property sold for the purpose of determining the value of the subject matter. If the argument of the pre-emptor that she is liable to pay court-fee on the price after deducting the value of the encumbrances, were accepted it would lead to absurd results. Assuming in the present case that no cash was paid but the entire amount of Rs. 338 represented the value of the encumbrances on the property sold, could it be contended by the pre-emptor that her plaint should be entertained without the payment of any court-fee? Whether the vendor or the vendee pays the encumbrances existing upon the property, it makes no difference to the value of the subject matter for the purpose of computing the court-fee. Where a property is mortgaged to a prior mortgagee, it is not possible to ignore the value of the encumbrances for the purpose of determining its market value. That value must be determined upon the state of things existing at the time of the sale. Where a property is mortgaged to a prior mortgagee, it is not possible to ignore the value of the encumbrances for the purpose of determining its market value. That value must be determined upon the state of things existing at the time of the sale. The amount paid to the vendor plus the value of the encumbrances must for the purpose of the court-fee be taken to be the value of the subject matter he case of Mahdi v. Gajadhar AIR 1924 Oudh 163 affords no parallel to the present case. There it was held in a suit for possession by a usufructuary mortgagee that the word "market value" in Section 7 means the market value of the subject matter of the suit namely the mortgagee's interest in the property. The mortgagee had valued the property on the amount of the mortgage money. The office objected that the valuation was the price which the land would fetch at a sale. The learned Additional Judicial Commissioner rightly held that the value of the subject matter of the suit was not a proprietary interest but a mere mortgagee interest in the property. 12. I hold, therefore, that the decision of the Courts below is correct and Mst. Janak Dulari's plaint was rightly rejected. 13. The other appeal filed by Mst. Janak Dulari is from the order decreeing pre-emption in favour of Ram Khelawan. Sheo Narain's appeal is also directed against the order. The points involved in these two appeals are, therefore common and will be dealt with together. 14. The first question that falls for determination is whether the order of the trial Court permitting amendment of the plaint by inclusion of the riyaya's house is correct. I am of opinion that this amendment ought not to have been allowed. The plaint clearly shows that the riyaya's house was deliberately excluded from the relief. No doubt the sale deed is referred to in the plaint but in the relief paragraph the pre-emptor confines his relief for possession of such property by pre-emption as is specified in detail at the end of the plaint. This property does not include the riyaya's house. A specific objection was raised by the defence that the riyaya's house having been excluded from the plaint, partial pre-emption was not permissible. An affidavit of Ram Khelawan and another affidavit of the clerk who wrote the plaint were filed. This property does not include the riyaya's house. A specific objection was raised by the defence that the riyaya's house having been excluded from the plaint, partial pre-emption was not permissible. An affidavit of Ram Khelawan and another affidavit of the clerk who wrote the plaint were filed. It was stated in the latter affidavit that the house was omitted by oversight, as it was mentioned as the last item of the property before the detail of consideration was set out. A reference to the sale deed filed by Ram Khelawan shows that there was no occasion for the oversight. The house was described in great detail and occupied nearly two lines. It is difficult to hold that the house was not copied in the plaint by an accidental omission. It was not until the defence raised the objection to partial pre-emption that Ram Khelawan filed the application for amendment. Ram Khelawan's counsel had admitted in the course of pleadings that the house of Kanhai Kumhar was a riyaya's house, while the other house sold under the deed was the residential house of the vendor who was not a riyaya. In view of these facts I am inclined to think that the omission of the riyaya's house in the plaint was not due to any over-sight but was deliberate, the Plaintiff having omitted it on the ground that being a riyaya's house it was not transferable and could not be pre-empted. The suit was filed on the last day of limitation and the application for amendment was made after a valuable right had accrued in favour of the defence. It is true that under peculiar or special circumstances, an amendment may be allowed even where it has the effect of depriving the Defendant of his right to plead limitation as held by their Lordships of the Privy Council in Charan Das v. Amir Khan (1920) 47 I.A. 255, but I do not think the present is a case in which special circumstances have been shown. I, therefore, hold that the order of amendment was not proper and ought not to have been made. 15. The next question that arises is whether the Plaintiff's suit was maintainable in respect of the rest of the property. The answer to this question will depend upon whether the property which is excluded from the plaint was or was not transferable. 15. The next question that arises is whether the Plaintiff's suit was maintainable in respect of the rest of the property. The answer to this question will depend upon whether the property which is excluded from the plaint was or was not transferable. I am of opinion that the riyaya's house was not transferable. The vendee contended that it was the riyaya's house while Ram Khelawan contended that it was not. An application was filed by Ram Khelawan on the 18th February 1939, from which it appears that Ram Khelawan's counsel changed the position and stated that it was a riyaya's house. It was, however, stated in the application that the house was owned by the vendor as a zamindar and the tenant was allowed to live in the house with his permission. The trial Court held that the vendor owned proprietary rights in the riyaya's house and these rights could be transferred and pre-empted. The lower appellate Court, however held upon a construction of the sale deed that what was transferred was not the riyaya's house which was neither transferable nor pre-emptible, but the right of reversion existing in favour of the zamindar. I am unable to accept this view of the lower Courts. The sale deed mentions two houses, one of which is described as the residential house of the zamindar and the other is described as the house known by the name of Kanhai Kumhar which was occupied by Ram Lal Kurmi. The language used in conveying the house does not justify the interpretation that the right of reversion to zamindar was transferred. Indeed no such case was put forward in the trial Court. The interpretation put upon the sale deed by the lower Courts is, therefore not correct. A reference is made to Section 7(b) of the Oudh Laws Act. This section says that the right of pre-emption shall be presumed to extend to the village site, to the houses built upon it, to all lands and shares of lands within the village boundary, and to all transferable rights affecting such lands. It is argued that the vendor transferred all transferable rights affecting the lands in the village. This section says that the right of pre-emption shall be presumed to extend to the village site, to the houses built upon it, to all lands and shares of lands within the village boundary, and to all transferable rights affecting such lands. It is argued that the vendor transferred all transferable rights affecting the lands in the village. In the present case the transfer was of stray plots and not of the entire village and it cannot be argued with any show of reasoning that the transfer of stray plots carried with it the transfer of reversionary rights of the landlord in the house occupied by riyayas. Indeed no question of the right of reversion arises in favour of the landlord until the house escheats under certain specific contingencies. It was certainly not within the contemplation of the parties that the right of reversion to the zamindar, which may or may not possibly arise at some future uncertain date, was being transferred. There can be no doubt, therefore, that although the vendor purported to transfer the riyaya's house he had no right to do so. The exclusion of this house from the plaint, therefore, does not affect the right of the Plaintiff to pre-empt the rest of the property upon payment of full price. Neither in the plaint nor in the application filed by Ram Khelawan on the 18th February, 1939, is there anything to show that Ram Khelawan sought pre-emption upon payment of a part of the consideration after deducting the value of the riyaya's house. As a matter of fact there is a definite prayer by Ram Khelawan that if the riyaya's house was held to be non-pre-emptible the decree may be given to him for the rest of the property without abatement of the price. It has been held that where part of the property is not pre-emptible, pre-emption of the remaining part can be allowed, if the pre-emptor offers full consideration of the sale deed for that part only.--(See AIR 1943 382 (Oudh) ). 16. Accordingly I hold that the decree of the lower appellate Court must be confirmed except in regard to the riyaya's house known as Kanhai Kumhar, which shall be excluded from the pre-emption decree. With this modification the appeals are dismissed with costs.