JUDGMENT Roy, J. - 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 CPC 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 vcid and in-oprative 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. 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. 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 ? 4. Admittedly the house covered by relief A of the plaint belonged to Haider Bux. Upon the death of Haider Bux, it was inherited by his mother Smt. Bashiran Defendant No. 2 to the extent of 5/30, by his daughter Smt. Sultani Plaintiff No. 2 to the extent of 15/30, by his sister Smt. Mahmoodi Begum Plaintiff No. 1 to the extent of 2/30 and by his two brothers Mohammad Nabi and Aley Nabi (who were alive at the date of the suit and also when the suit was heard) to the extent of 4/30 each. In her statement the Plaintiff Smt. Mahmoodi Begum admitted all those factors and she further stated that Mohammad Nabi and Aley Nabi had made over their share in the property to their wives Smt. Aisha Begum Defendant No. 3 and Smt. Sarwari Begum Defendant No. 4 respectively. It is therefore evident that in this house the share of the two Plaintiffs was only 17/30 and not 5/6 as claimed by them. The remaining 13/30th part of the house belonged to Defendants 2, 3 and 4. It is therefore manifest that the declaration which the Plaintiff could get under relief A of the plaint was a declaration in regard to 17/30th share. The trial court and the lower appellate court were wrong in holding that the Plaintiffs share in that house was 5/6th. The decree for declaration must therefore be modified and it will be rendered valid to the extent of 17/30th share in that house. 5. The trial court and the lower appellate court were wrong in holding that the Plaintiffs share in that house was 5/6th. The decree for declaration must therefore be modified and it will be rendered valid to the extent of 17/30th share in that house. 5. Coming now to the second point formulated above, the decision of a Bench of this Court in Zainab Bibi v. Umar Hayat Khan 1936 AWR 492 covers the matter. That was a case under the Pre-emption Act. It was held in that case that where under one and the same deed of sale property as to which the pre-emptor has a right of pre-emption under the Pre-emption Act is sold along with other property as to which he has no right of pre-emption under the Act, he can sue for pre-emption of the property which he is entitled to pre-empt under the Act and his suit would not fail by reason of his having excluded property which he is not entitled to pre-empt under the Act. This rule has been in variably followed in numerous cases by this Court. Apart from the decision aforesaid we may refer to the case of Mohindra Man Singh v. Makaraj Singh 20 ALJ 810 where it was held that it is the duty of the pre-emptor to claim pre-emption 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; and that if the vendee has included properties 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. This rule both under the Pre-emption Act and under the Mohammedan law had been the same. The origin of the customary law in this State obviously was rules of Mohammedan law which were 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, deprive the pre-emptor of his right to pre-empt that property as to which he has a right. 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, 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 movable property or with any other immovable property would prevent pre-emption altogether. Similarly, the vendee may include property in which he is a co-sharer and therefore on the same footing with the pre-emptor. In such a case the integrity of the bargain 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. We are therefore of opinion that 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 and which share of the property in fact belongs to the pre-emptor in his own right, he can sue for pre-emption of the property which he is entitled to pre-empt under the law and his suit would not fail by reason of his having included property which he is not entitled to pre-empt. 6. This brings us to the question whether the suit was bad for partial pre-emption. We have already stated that the Plaintiffs wanted to pre-empt the sale in respect of a whole house and with respect to l/6th share in the other house, treating the remaining 5/6th share of that house as belonging to them in their own right. The Plaintiffs' share in that other house in their own right is only 17/30 and not 5/6. The remaining l3/30th share belonged to Defendants 2, 3 and 4. Instead of claiming pre-emption in regard to 13/30 share in that house the plainuffs claimed pre-emption only in regard to 5/30. Consequently this would be a case of partial pre-emption of property which the Plaintiffs would not be permitted to pre-empt. The claim for pre-emption must therefore fail and it would be unnecessary for us to go into the question of apportioning the price between the pre-emptible part and the non-pre-emptible part. 7. Consequently this would be a case of partial pre-emption of property which the Plaintiffs would not be permitted to pre-empt. The claim for pre-emption must therefore fail and it would be unnecessary for us to go into the question of apportioning the price between the pre-emptible part and the non-pre-emptible part. 7. The result therefore is that the second appeal by the Plaintiff is dismissed and the cross-objection by Respondent No. 1 is allowed to this extent that the decrees of the two courts below are reversed and modified to the extent that the Plaintiffs are allowed a declaration to the effect that they have got 17/30th share in the house coverved by relief A of the plaint and to the extent of that share the sale-deed of 24-8-1945, executed by Defendants Nos. 2, 3 and 4 in favour of Defendant No. 1 is void and inoperative. The relief for pre-emption fails and to that extent the suit stands dismissed. In the circumstances the parties would bear their own costs throughout.