1. This is a plaintiff's appeal arising out of a suit for pre-emption. Certain shares of zamindari property in a village, along with a house in the city of Moradabad, were sold under one sale deed to the defendants. The plaintiff brought his suit to pre-empt the zamindari property by virtue of his right under the Pre-emption Act and to pre-empt the house property under the Mahomedan law. He alleged that he had made the necessary demands required by Mahomedan law. Both the Courts below have come to the conclusion that he failed to prove that he made the demands which would entitle him to succeed under the Mahomedan law so far as the house was concerned. The first Court dismissed the claim with regard to the house, but decreed it as regards the zamindari property. On appeal the lower appellate Court has dismissed the entire suit. Following the case of Abdul Khan v. Shakira Bibi A.I.R. 1928 All. 121 the lower appellate Court has held that having lost his right to pre-empt the house the plaintiff's suit as regards the zemindari property also failed on the ground of partial pre-emption.
2. The plaintiff has come up on appeal, and on his behalf it is contended that the view of the lower appellate Court is not right,
3. Section 16, Agra Pre-emption Act has been amended since the pronouncement of the judgment quoted above, and the amendment indicates the mind of the legislature. But it being an amending Act and not a declaratory one the addition of the words ' under this Act ' at the end of Section 16, would not have a retrospective effect. We have therefore to apply Section 16 as it stood before the amendment
4. In the case quoted above the Bench reluctantly came to the conclusion that the previous interpretation of the common law had remained unaffected. That was however a case in which both the zamindari property and the house property were situated within a village which was a rural area to which the Pre-emption Act applied. The Bench thought that because the proviso to Section 3 left the Mahomedan law intact where there was no right of pre-emption under Section 5, the claim to pre-empt the house was in accordance with the provision of Section 3. At another place in the judgment it was remarked that the enforcement of such a right under the Mahomedan law would also be a preemption under the Act. This last expression was certainly inaccurate, but that was a case to which the Act in its entirety was applicable.
5. The learned advocate for the appellant distinguishes the present case from the reported case on the ground that here the house is situated not in the village to which the Act applies, but in the city of Moradabad to which the Act does not apply. Section 1, Sub-section (3) of the Act expressly lays down that the Act does not apply to any area included within the limits of a municipality. It is therefore obvious that the , Act is not applicable to the city of Moradabad at all. It follows that no section of the Act is applicable to the city of Moradabad, nor is any proviso to a section. Of course it does not allow from this that the law which stood in the areas to which the Act does not apply has in any way been superseded; the Act merely does not touch such laws or rights. There would be no necessity to lay down a proviso in respect of an area to which the Act is expressly not made applicable. It is therefore reasonable to construe the proviso to Section 3 as applying to areas to which the Act applies, but in which there is no right of pre-emption under Section 5. In the same way it follows that Section 16 must have been intended to be applicable to. areas to which the Act was made applicable. Under that section no suit shall lie for enforcing aright of preemption in respect of a portion only of the property which the plaintiff is entitled to preempt. In view of the opinions expressed in the earlier cases we assume that the expression 'entitled to pre-empt ' would be wide enough to cover the case where there was an initial right to preempt although it was lost on account of the failure to make the demands. But we think that there is force in the contention that the legislature would not have intended to include within this expression any right to pre-empt which the plaintiff may possess in areas to which the Act is not applicable. A statutory right to preempt the zamindari property has been conferred on the plaintiff under Sections 5, 11 and 12 of the Act. That statutory right cannot be taken away by any common law outside the Act. The only way to defeat such a right would be by applying Section 16 if it were applicable. We see no reason for holding that Section 16 contemplates the exercise of a right in areas to which the Act is expressly made not applicable. It therefore seems to us that the present case is distinguishable from the. reported case, and in the case before us we cannot hold that simply because the plaintiff did not properly exercise his right under the Mahomedan law in respect of the house in the city of Moradabad, to which the Act is not applicable, he has also lost his right to pre-empt the property within the village to which the Act applies.
6. We therefore think that the decree of the Court of first instance was right. We accordingly allow this appeal and, setting aside the decree of the lower appellate Court, restore that of the Court of first instance. The plaintiff will have the costs of the appeal preferred by the defendant in the lower appellate Court and the costs of the appeal in this Court from her, who will bear her own costs. The defendant will get from the plaintiff the costs of the cross-objections in the lower appellate Court. The costs of this Court will include fees on the higher scale. In case the plaintiff has either not deposited the proportionate amount of the pre-emption money, or has taken it out after deposit we would allow him thirty days from this date to re-deposit the amount in the lower appellate Court. In case the plaintiff fails to deposit the amount within the time fixed the suit shall stand dismissed with costs in all Courts including in this Court fees on the higher scale.