Case No: First Appeal No. 386 of 2012
Judge: Sharif Uddin Chaklader,
Court: High Court Division,,
Advocate: Mr. A.K.M. Faiz,,
Citation: 2016(1) LNJ 206
Case Year: 2016
Appellant: Sree Onil Kuar Podder
Respondent: Mostafa Unuch
Subject: Pre-emption, Mohammedan Law,
Delivery Date: 2014-9-15
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
|Sharif Uddin Chaklader, J
Ashish Ranjan Das, J
Sree Onil Kuar Podder and others
. . .Defendants purchaser-appellants.
Right of Pre-emption
State Acquisition and Tenancy Act (XXVIII of 1951)
Right of Pre-emption can be exercised when there is no defect of title in the vendor. The right of pre-emption comes into existence after a valid, complete and bona-fide sale, i.e. after the title has passed to the purchaser, and cannot be exercised in the case of any other alienation. The right to pre-emption is very special in its character. It is founded on the supposed necessities of a Mohammedan family, arising out of their minute Sub-division and inter-division of ancestral property. We have already seen that before invasion of Muslim such right was not known to the people of the subcon-tinent. Right of pre-emption is not right of repurchase but a simple right of substitution to stand in the shoes of vendee. . . . (25)
Right of Pre-emption
State Acquisition and Tenancy Act (XXVIII of 1951)
Whether pre-emptor rightly invoke his pre-emption right under Mohammedan Law against a Hindu, a non Muslim purchaser. This law point can be easily answered in this way as to whether Hindu purchaser be the pre-emptor can pre-empt the transfer under Mohammedan Law. The answered is a emphathic ‘No’. Since the Hindu purchaser or any non-Muslim cannot invoke the Mohammedan Law in any of their daily affairs, their right to all aspects including right to hold property invoking such law, (i.e. Mohammedan Law) cannot be taken away. Mohammedan Law is personal law and anybody come within the four corners of Mohammedan Law, then privision of personal law shall prevail. . . . (41)
Muslim Family Law
Right of Pre-emption
Mohammedan can claim benefit of the law of pre-emption under Mohammedan Law but the Hindu purchaser cannot claim the benefit of that law. . . . (43)
Right of Pre-emption
State Acquisition and Tenancy Act (XXVIII of 1951)
In the instant case vendor is a Muslim and purchaser is a Hindu. By this time much water follows in the river Burigonga and by this time Pakistan was created and thereafter, Bangladesh got independence. State Acquisition and Tenancy Act along with Non-Agricultural Tenancy Act came into operation giving statutory right of pre-emption, and pre-emptor could invoke the provision of statutory law but we do not understand why the plaintiff being an Advocate instead of invoking statutory law jumped to personal law against a non muslim. Since the appellant could not invoke the provision of Mohammedan Law their purchase cannot be defeated by taking shelter of Mohammedan Law. . . . (44)
Right of Pre-emption
In 1885 there was no corresponding statutory law governing the field of pre-emption and at that time pre-emption was governed as per provision of Mohammedan Law, if pre-emptor be Hindu then also he could pre-empt the land under the provision of Mohammedan Law but now scenario has been changed and statutory law has come into operation giving right to all to pre-empt the land if law applies. . . . (45)
Gobind Dayal Vs. Inayatullah, Brij Mohan Lal Vs. Abul Hasan Khan, ILR 1885 (All)-775; Ramrutun Singh Vs. Chunder Naraen Rai (1) (I.S.D.A Rcp,1); Ram Kanhace Rai Vs. Bung chund Bunhoojea (2), (3 SDA Rcp17); Chundo Vs. Hakeem Alim-ood-deen (1), N.W.P.H.C. Rep.1871 p 28); Moti Chand Vs. Muhomed Hoseein Khan (2), (N.W.F.P.H.C, 1875 p 147); Zamir Husain Vs. Davlat Ram (1), (ILR 5 All.110); Sheoratan Kuar Vs. Mahipal Kuar (2), (ante P 253); Achutananda Pasait Vs. Biki Bibi, 69 Indian Cases, 666; Shaikh Kodrutoollah Vs. Mohinss Mohun Shaha 13 W.B.21(F.B.; 4 B.L.R.134); Hamedmiya Badamiya Saheb Vs. Joseph Benjamin, 118 I.C-548; Mahmed Beg Amin Beg Vs. Narayan Meghaji Patil (10) (32 IC 933); Saib Vs. Muni Mir Uddin Saib (9) (6 M.H.C.R 26); Ibrahim Saib Vs. Muni Mir Udin Saib (9)(6 M.H.R.C.R 26) and Sheikh Kudratullah Vs. Mahini Mohan Shaha (6)( 4 BLR (FB)134); Mahomed Beg Amin Beg Vs. Narayan Meghaji Patil (10) 32 IC 933); Nusrut Reza Vs. Umbul Khyr bibee (15) ( 8 WR 309); Jadu Lal Sahu Vs. Janki Koer, (5)(15 IC 639); Sitaram Bhaurao Deshmukh and others Vs. Sayad Sirajul Khan Nawab Amir Yar Jung Bahadur, ILR-41- Bom 636.; Qurban Husain Vs. Chote, ILR 22 All-102 ref.
Mr. A. K. M. Faiz, Advocate
. . . . For the appellants.
Mr. Md. Saiyedul Islam, Advocate
. . . For the respondent.
First Appeal No. 386 of 2012.
Sharif Uddin Chaklader, J:
1. This appeal at the instance of defendant-purchaser directed against judgment and decree dated 20.9.2012 passed by the learned Joint District Judge, 4th Court, Khulna decreeing Title Suit No.47 of 2007 allowing pre-emption under Mohamadan Law against defendant-appellant.
2. In this appeal question calls for decision as to whether Mohamadan Law is applicable against non Muslim particularly against Hindu. To answer this legal question the facts of the case are not so important but short glimps is required.
3. Mostafa Unuch, plaintiff, a practicing lawyer of Khulna Bar is pre-emptor, invoking right of sufa stating that the suit jote, measuring .52 acres of land, recorded in S.A khatian No.28, plot No.507 situated at mouza of Halatola under P.S. Khulna, Dist. Khulna originally belonged to A.H.M. Ali Hafez, Motwalli of Usuf Waqf Estate. The beneficiary of the said waqf estate, Karimunnessa and A.H.M. Ali Hafez transferred .05 decimals of land to plaintiff through kabala dated 19.8.1966 and the plaintiff possessed the said land by erecting house thereon, living there with family and became co-sharer of the land. Defendant Nos.4-5 transferred .0825 acres of land along with dwelling house upon the land to defendant Nos.1-3, who are stranger, by deed dated 28.8.2004 at a consideration of Tk.12,00,000.00 behind the back of the plaintiff. He could gathered knowledge of transfer when he saw defendant Nos.1-3 watching the suit land standing in the path way beside the house of the plaintiff and disclosed that they have purchased the suit land along with the dwelling house thereon. No sooner he heard the news of sale of the suit land, plaintiff instantly jumped into the suit premises claiming right of pre-emption and his intention of purchasing the suit property in presence of witnesses Mr. Shaful Alam, Advocate, Mr. Asadul Alam, Advocate Mr. Mofizur Rahman Advocate, Mr. Ashok Kumar Singha, Mr. Nur Mohammad. Thereafter, plaintiff performed Talab-i-Ishhad. The mother of pre-emptor purchased the share of one, Chapala Bala, co-sharer in the jote, died, leaving plaintiff as only heir. Plaintiff possessed his own land in the adjacent east side of the suit land and for expanding his narrow pathway for which he suffering and for enjoyment of wide pathway the suit land is required, hence the suit.
4. Defendant Nos.1-3 appellants contested the suit by filing written statement wherein after taking all the objections as to maintainability of the suit, it is their case that, the suit land originally belonged to A.H.M Ali Hafez, the motwalli of Usuf Waqf Estate. The beneficiary of the said Waqf Estate, Mrs. Karimunnessa and Mrs. Hakimunnessa transferred .0825 decimals of land to Mrs. Aziza Akhterjahan Chowdhury vide deed No.8020 dated 16.12.1961. She possessed the suit land by constructing high boundary wall and erecting two storied building, separated the joma by opening separate khatian No.469 through Miscellaneous Case No.430/63-64, died, leaving two sons, defendant Nos.4 and 5 as heirs, who transferred the suit land to defendant Nos.1-3 through kabala dated 18.8.2004 vide deed No. 2666 within the knowledge of the plaintiff. After purchase, defendants mutated their names through Miscellaneous Case No.221 of 2004 on 23.9.2004, a separate khatian was prepared with the advice of the plaintiff; Plaintiff also mutated his name for his purchased .05 decimal of land from the plot through Miscellaneous Case No.287(1) 78-79 and opened separate khatian No.28/1. So pre-emption is not maintainable. Plaintiff failed to prove the formality of Talab-i-Mowsibat as well as Talab-i-Ishhad.
5. After examination of the witnesses and exhibits learned Judge decreed the suit as aforesaid.
6. In the instant suit before we answer the legal question we notice some peculiar facts as plaintiff being an old man of 71 years, jumped over the fencing of the suit land and claimed Talab-i-Mowasibat which is not believable. Another improbability is that in the evening junior Advocate normally do not accompany their senior Advocates but in this suit we find long after lunch, junior Advocates accompany their learned Senior Advocate probably for applying Talab-i-Mowasibat. These facts according to us are creation of mind, not in reality.
7. We have already seen that plaintiff is Muslim governed by personal law i.e. by Mohammadan Law of pre-emption but defendants are Hindus not covered by the Mohammadan Law of pre-emption.
8. This is only case in Bangladesh as well as erstwhile Pakistan where a Mohammadan exercise right of pre-emption under Mohammadan Law against Hindu. There is not a single instant of such kind of dispute arise in anywhere from 1947 up to now.
“18. in this case, pre-emption has been claimed under statute law. The area in which the lands under pre-emption lie is covered by the North-west Frontier province pre-emption Act, 1950. This Act was enacted on the 20th March, 1950, but the sale which gave rise to the right of pre-emption took place on the 21st December, 1943. Section 10 of the said Act provides that in respect of all sales and foreclosures’ completed before the commencement of that Act, the right of pre-emption shall be determined by the law in force at the time of such completion. Now, the Chief Commissioners of the then North-west Frontier Province, by Notification No. 9121.G./ 12-49. 22-24, dated the 20th October, 1924 issued under section 5 and 5.A of the schedulled Districts Act, 1874, as amended by the Devolution Act, 1920, extended to the North-west Frontier Province the Punjab-pre-emption Act, 1913 (Punjab Act 1 of 1913), subject to certain modifications in sections 15, 19 and 22 of that Act. Thus, the claim for pre-emption in the instant case shall have to be determined having regard to the provisions of the Punjab Pre-emption Act, 1913.’’
10. Learned Advocate next relied on the case of Gobind Dayal vs. Inayatullah, Brij Mohan Lal vs. Abul Hasan Khan, ILR 1885 (All)-775 this decision settled that Mohammadan Law pre-emption can be applied against Hindus.
11. We have carefully read this full Bench decision. A lengthy discussions have been made and several proposition of pre-emption under Mohammadan Law has been discussed and several decisions’ have been referred, in some agreed and in some differed and allowed pre-emption under Mohammadan Law against a Hindu after finding that there is no pre-emption under Hindu Law, and applied Mohammadan Law not as law by which the Courts are bound but only on general principles of justice, equity and good conscience as there was no corresponding statutory law to be applied by non-Muslims.
12. It is held in this full bench discussion that the fact that ‘’some of the parties concerned in the present cases are Hindus, need not therefore in itself complicate the question as to the applicability of the Muhammadan Law, nor create any such difficult as would otherwise have arisen with regard to the question how the rule of pre-emption is to be administered according to justice, equity, and good conscience, in a case where, some parties being Hindus and the other Muhammadans, the law of each provided different rules for the enforcement of the pre-emptive right .
13. I now turn to the case law upon the subject. In Ramrutun Singh v. Chunder Naraen Rai (1) (I.S.D.A Rcp,1) which is the earliest reported case, having been decided in 1792, it was held by the Bengal Sadr Diani Adwlat, that among the holders of separate shares of an hereditary zamindari, each, according to the Hindu Law, may sell his share to whom he pleases, and the other sharers have no necessary right of pre-emption. And in Ram Kanhace Rai v. Bung chund Bunhoojea(2), (3 SDA Rcp17), decided in 1820, it was held that vicinage and partnership did not confer any right of pre-emption according to the Hindu Law as current in Bengal.
14. Although the other judges concur with the bottom line of the judgment delivered by Mahmud, J but with a short of difference as:
15. OLDFIELD, J:- the answer should be in the affirmative concur in the opinion expressed in the case in Chundo v. Hakeem Alim-ood-deen (1), N.W.P.H.C. Rep.1871 p 28) by the majority of this Court, that by the pro-visions of s.24, Act VI of 1871, the Court is not bound to administer the Muhammadan Law in claims of pre-emption, but on grounds of equity that law has always been held to bind Muhammadans, and has always been administered as between them in claims for pre-emption. Muhammadsns therefore as between themselves, hold property subject to the rules of Muhammadan Law and it would not be equitable that persons who are not Muhammadans, but who have dealt with Muhammadans, in respect of property, knowing perfectly well the conditions and obligations under which the property is held should, morely by reason that they are not themselves subject to Muhammadan Law, be permitted to evade those conditions and obligations. I wish to add that although i was a party to Moti Chand v. Muhomed Hoseein Khan (2), (N.W.F.P.H.C,1875 p 147) my decision followed the Full Bench ruling in chundo v. Hakeem Alim-ood-deen (1) by which i felt myself bound.
16. BRODRURST, J, concurred.
PETHERAM, C.J-my answer to the question referred to the Full Bench is in the affirmative. There appears to be no doubt as to what the rule of Muhammadan Law is, it imposes an obligation upon a Muhammadan owner of property, in the neighbourhood of which other Muhammadans have property, or in respect of which other Muhammdans have a share, to offer it to his neighbours or his partners before he can sell it to a stranger. This is an incident of his property, as the text-books of the Muhammadan Law show, and, for the reasons stated by my brother oldfield, i think that it is equitable to apply the rule to cases like the present, in which the purchaser is a Hindu.’’
17. In the instant case, pre-emptor is governed by the personal law i.e. Mohammadan law and pre-emptee purchaser is also governed by the personal law i.e. Hindu Law. Mohammadan Law provides pre-emptive right but Hindu law do not, and personal laws prevail. Muslim and Hindu are so intimately connected with religion that they cannot readily be dissevered from it. As long as the religious last, the laws founded on them last.
18. To find out the originity of right of pre-emption it is pertinent to give a brief description, lest we forgot it, as we gathered from the old decisions, particularly from the aforesaid Full Bench decision of Allahabad High Court.
19. ‘Right of pre-emption’ has been originated from Prophet Muhammad (peace be upon him, PUB) I may observe that pre-emption is closely connected with the Muhammadan Law of inheritance. That law was founded by the prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe. It provides that, upon the death of an owner, his property is to be divided into numerous fractions, according to extremely rigid rules, so rigid as to practically exclude all power of testamentary disposition, and to prevent any diversion of the property made even with the consent of the heirs, unless that consent is given after the owner’s death. When the reason is, not that the testator had power to defeat the law of inheritance, but that the heirs, having become owners of the property, could deal with it as they liked, and could therefore ratify the net of their ancestor. No Muhammadan is allowed to make a will in favour of any of his heirs, and a bequest to a stranger is allowed only to the extent of one-third of the property. Under these circumstances, to allow the Muhammadan Law of inheritances, and to disallow the Muhammadan Law of pre-emption, would be to carry out the law in an imperfect manner, for the latter is in reality the proper complement of the former, and one department of the law cannot be administered without taking cognizance of the other. Among Aryan systems, which favour the notion of the inchoate rights of heirs, the rule of primogeniture, the jus representations, and the exclusion of females from inheritance, except in special cases, the property is not so completely split upon on the owner’s death; but, under the Muhammadan system, upon a man’s death, not only his children are entitled to succeed to his property, but also his wife, mother, father, and other heirs, according to well defined rules.
20. The law of pre-emption is coessentially a part of Muhammadan jurisprudence. It was introduced into India by Muhammadan Judges who were bound to administer the Muhammadan Law. Under their administration it became, and remained for centuries, the common law of the country, and was applied universally both to Muhammadans and Hindus, because in this respect the Muhammadan Law mades no distinction between persons of different races or creeds. A Musalman and a Zimmea being equally affected by principles on which shafa or right of pre-emption is established, and equally concerned in its operation, are therefore on an equal footing in all cases regarding the privilege of shafa.” (Hamilton’s Hedaya, vol. III, p.592). what was the effect of this? In course of time, pre-emption became adopted by the Hindus as a custom. I may here refer to an official paper printed in the Revenue Reporter, Vol. V, at p. 150, in which it is said that the rule of pre-emption has been adopted as a custom almost universally throughout these provinces, even by villages which are purely Hindu. I have already in Zamir Husain v. Davlat Ram (1), (ILR 5 All.110) and in the recent case of Sheoratan Kuar v. Mahipal Kuar (2),(ante P 253) explained my views as to the manner in which this cusom has been adopted by Hindu Community.
21. Now, the main authority upon which the learned judges relied for the view that right of pre-emption does not exist before sale, is a passage in Mr. Hamilton’s Hedaya to be found at page 568, Vol. III, of his translation. The translation is at its best a very loose one when compared with the original Arabic text, which I shall literally translate here “pre-emption becomes obligatory (i.e, enforceable) by a contract of sale, which means after the sale. Not that sale is the cause (of pre-emption), for the cause is conjunction, (of the properties) as we have already mentioned. And the reason in the matter is, that pre-emption becomes obligatory when the seller has turned away from (i.e wishes to get rid of) the ownership of his house, and the sale makes this apparent. Hence, proof of sale is sufficient as against him even to the extent of the pre-emption taking it (the house) whom the seller acknowledge the sale, although the buyer contradicts him.”(1) (in Arabic) the meaning to be evolved from the passage is obviously different from the interpretation which can be placed upon Mr. Hamilton’s translation, which indeed to me to have misled mitter, J., and other learned Judges who agreed with him. The Arabic word tajibo which occurs in this and other passages, and which Mr. Hamilton translated as “established,” really means “becomes obligatory, necessary or enforceable”as a term of law, and I cannot help feeling that if the passage had been accurately translated by Mr. Hamilton, the majority of the Full Bench in Sheikh Kudratulla’s case might possibly have arrived at a very different conclusion. It is unnecessary to quot any more passages from the original Arabic text of the Hedaya, which distinctly go to show that the case or foundation of the right of pre-emption is the conjunction of the pre-emptive tenement with the pre-emptional tenement, that its object is to obviate the inconvenience or disturbance which would arise by the introduction of strangers, that the right exists antecedently to sale, and that sale is a condition precedent, not to the exislence of the right, but only to its enforceability. Mr. Hamilton’s translation is sufficiently accurate to indicate these conclusions, and i shall therefore pass on to ther books as high in authority as the Hedaya itself.
22. The Muhammadan law having been evolved from the Kuran and the sayings of the prophet, naturally presents such difficulties, and the question whether the vendor is bound to offer the property to his co-parcener before selling it to a stranger, is an illustration of what i mean, a difficulty which was felt at an early stage by the Muhammadan jurists themselves. The following is a text from aini, a commentary upon the kanz, a well-known book on Muhammadan jurisprudence :- “A co-parcener is one whose share has not been divided in the property sold. This is universally agreed upon, because it has been related by Jahir that the prophet decreed pre-emption, in respect of every joint undivided property, whether a grove or a house, saying:- “it is not lawful for anyone to sell till he has informed his co-parcener who may take or leave it as he wishes; and if he has sold without such information, the co-parcener has a preferential right to the share.” This tradition has been related by Mushini, Abu David, and Aukissai.”(1) (in Arabic) Two other traditions to the same effect are also to be found in muslim which is one of the books of acknowledge authiry on Hadis or traditions. I will, however, quote only one of them, as it brings into prominence the difficult with which i am now dealing :- “it is related by Jahir that the Prophet said:- “pre-emption exists in all joint properties, whether land, or house, or grove. It is not proper for him (the owner) to sell till he has offered it to his co-parcener, who may take it or reject it; and if the vendor fails to do this, his co-parcener has the preferential right to it until he is informed”.
23. The author explains the traditions in the following manner:- The saying of the Prophet to the effect that it is not for him (the vendor) to sell until he has apprised his co-parcener is, in the opinion of our doctors, taken to refer to the moral property of giving notice and to the objectionableness of sale before such notice- an objectionableness which arises from impropriety. It does not, however, mean that such sale is “absolutely prohibited,”and this is the manner in which they have interpreted the Hadis (saying of the prophet), because it may be rightly affirmed of that which is morally objectionable, that it is not lawful, and thus the expression “lawful” comes to mean permissible, which implies that both sides (positive and negative) are on an equal footing, whilst that which is morally objectionable cannot be said to be permissible, both sides, of which are equal but, on the contrary the morally objectionalbe’is that the rejection of which prevails (over its adoption”) (1) (in Arabic)’’.
24. As we find that this kind of dispute did not come for decision during the time of Pakistan, as such we have to find the answer from earlier citation during British rule. We have come across two Full Bench decision, one by Allahabad High Court, 7 ILR 775 another by Calcutta High Court 4 Beng LR 134. All the Courts of the Subcontinent either follow Allahabad decision that is Mohammadan Law of Pre-emption can be applied against non muslim or follow Calcutta decision i.e right of pre-emption cannot be applied against non-muslim under Mohammadan Law.
25. Right of Pre-emption can be exercise when there is no defect of title in the vendor. The right of pre-emption comes into existence after a valid, complete and bonafide sale, i.e. after the title has passed to the purchaser, and cannot be exercised in the case of any other alienation. The right to pre-emption is very special in its character. It is founded on the supposed necessities of a Muhammadan family, arising out of their minute Sub-division and inter-division of ancestral property. We have already seen that before invasion of Muslim such right was not known to the people of the subcontinent. Right of pre-emption is not right of repurchase but a simple right of substitution to stand in the shoes of vendee. Before the British regime all the citizens of India followed Mohammadan Law. Allahabad decision as we referred, pre-emption case between Mohammadan pre-emptor and Hindu Pre-emptee where Mohammadan law applied according to justice, equity and good conscience. During Muslim regime jamindars i.e mostly Hindu had to invoke the right of pre-emption as per Mohammadan Law as during Muslim rule right of pre-emption was extended to all without any discrimination.
26. We have already seen in the Full Bench decision of Allahabad reported in ILR VII (All)-775, a case between Muslim pre-emptor and Hindu purchaser, in that decision after reviewing the earlier decisions allowed pre-emption as per justice, equity and good conscious. This decision followed by a Division Bench of Patna High Court in the case of Achutananda Pasait vs. Biki Bibi, reported in 69 Indian Cases, 666 wherein on reviewing both Full Bench decision of Calcutta High Court and Allahabad High Court, the Court held:-
“The learned Vakil for the appellant relies for the proposition which he puts forward, namely, that the Muhammadan Law of pre-amption does not apply where the vendee is a Hindu, on the case of Shaikh Kodrutoollah v. Mohinss Mohun Shaha 13 W.B.21(F.B.;4 B.L.R.134). This decision is a full Bench decision of the Calontta High Court and ordinarily we would follow such a decision in this Court but the whole law on the point was subsequently elaboratery discussed by Mahmood, j, in the Full Bench case of Gobind Dayal v. Inayatullah, where the decision in Shaikh Koddrutcollah v. Mohinee Mohun Shaha was considered and it was held by him, four other judges of the Court concurring, that in such a case the Muhammadan Law of pre-emption did apply. I have very carefully considered these decisions and in my opinion, the view which has been taken by the Allahabad Court is the correct view of the law.’’
27. In the decision of Hamedmiya Badamiya Saheb vs. Joseph Benjamin, 118 I.C-548 wherein also aforesaid two Full Bench decisions were reviewed but Bombay High Court followed the decision of Calcutta High Court. This case was between Mohammadan vs. Bene Israel and the judgment is as follows:-
“The language of the Regulations considered by the Calcutta and Allahabad High Courts is somewhat different. Mahmood j. In Gobind Dayal v. Inayatullah went to the length of holding that the law of pre-emption is a religious usage or institution within the meaning of s 24 of the Bengal Civil Courts Act, VI of 1871. Sir Roland Wilson in his Anglo Muhamuiadan Law (s.350), after referring to the view of Mahmood, j., observes that this reasoning proves too much, for if it were so, the whole of the Muhammadan Shariat, would be enforced including the law of property and contract. The other Judges, oldfield, J. And petheram, C.J.. have not expressed their concurrence with the view of Mahmood, J. on this point, and held that the Court was not bound to administer Muhammadan Law in Claims of Pre-emption, but came to the conclusion that the right of pre-emption was an incident of the property and it was equitable to apply the rule to cases where the purchaser was a Hindu on the ground of equity, justice and good conscience.’’
28. “Coming to the Regulation (IV of 1827), Cl. 26 which governs the mofussil in the Bombay presidency, the law to be observed in the trial of suits shall be Acts of parliament and Regulations of Government applicable to the case which would include the Indian Acts of Legislature. It was held by Batchelor, J. in Mahmed Beg Amin Beg v. Narayan Meghaji patil (10) (32 IC 933) that the rules of pre-emption place a clog or fetter on the freedom of sale for which the transfer of property Act and the Indian Contract Act provide. Shah, J. However, has hesitated to accept the contention on the ground, first, that pre-emption according to the Muhammadan Law has been enforced in other parts of India and even in some parts of Gujarat in the Bombay presidency and that Chap. III of the Transfer of pro-perty Act which relates to sale of immoveable property does not purport to deal with the right of the vendor to sell, but only provides the mode of effecting sales and contains provisions as to the rights and obligations of the seller and buyer in the absence of a contract to the contrary, but both the learned judges have come to the conclusion that pre emption is opposed to justice, equity and good conscience. Batchelor, J., held that the view of the Madras High Court in Ibrahim Saib v. Muni Mir Uddin Saib (9) (6 M.H.C.R 26) was applicable generally to the Bombay presidency with the exception of certain parts of Gujarat. The Muhammadan Law of pre-emption, therefore, cannot be accepted in its entirety except on the ground of custom. In the Full Bench case of Gobind Dayal V. Inayatullah (1) (VII All 775) all the judges agreed that in the case of a non Muhammadan vendee the rule of Muhammadan Law of pre-emption could be applied on the ground of equity, justice and good con-science. That view is not accepted by the Madras High Court in Ibrahim Saib v. Muni Mir Udin Saib (9)(6 M.H.R.C.R 26) and the Calcutta High Court in Sheikh Kudratullah v. Mahini Mohan Shaha (6)( 4 BLR (FB)134) and by the Bombay High Court in Mahomed Beg Amin Beg v. Narayan Meghaji Patil (10) 32 IC 933). The right of pre-emption, in my opinion, not being an incident of the property for the reasons I have stated and not being applicable on the ground of justice, equity and good conscience according to Regulation IV of 1827, Cl. 26 and it being not a law of the defendant who is a Bane Israel under Cl. 26 of the Regulation of 1827, I think in the absence of custom a non-Muhammadan Bene Israel vendee cannot be bound by the law of pre-emption even though the law of pre-emption may have been established as Customary Law applicable to Hindus and Muhammadans in Ahmedabad.’’
29. In Nusrut Reza v. Umbul Khyr bibee (15) ( 8 WR 309) Phear, J., observes:
“The right to pre-emption is very special in its character. It is founded on the supposed necessities of a muhammadan family, rising out of their minute subdivision and inter division of ancestral property, and, as the result of its exercise is generally adverse to public interest, it certainly will not be recognised by this Court beyond the limits to which those necessities have been judicially decided to extend.”
30. The remark of privy Council in jadu Lal Sahu v. Janki koer, (5)(15 IC 639) may be looked into: that the right of pre-emption was enforceable irrespective of the persuasion of the parties concerned is not to be taken in a very wide sense, but must be taken as referring to the persuasion of the parties to the litigation who were Hindus of bihar with reference to whom the custom of pre-emption was recognised. In the case of Christian vendee it was held by the Calcutta High Court in Baboo Mohesh Lall v. Mr. John Christian and co. (16) (8 WR 446) that the right of pre-emption is not a matter of title to property but is rather a right to the benefit of a contract and when a claim is advanced on such a right, it must be shown that the defendant is bound to concede the claim either by law or by some custom to which the class of which he is a member is subject on grounds of justice, equity and good conscience.
31. “I think it would be manifestly unjust and inequitable that the Muhammadan Law of pre-emption should be enforced against a Bene Israel purchaser without giving him the benefit of that law in other cases in which he would like to stand in the position of a pre-emptor. There is no allegation in the plaint that the law of pre-emption is binding on the class to which the defendant belongs namely, the Bene Israel community. If such an allegation had been made, it would have been necessary in this case to send down issues to the lower Court, first, whether there is a custom among the Bene Israel recognising the law of pre-emption, secondly, whether the defendant is domiciled in or a native of Ahmedabad:”
32. “In the present case there is no allegation in the plaint that there is a custom binding on the Bene Israel defendant, or that the defendant was bound by notice of any contract with the vendor.’’
33. “The plaintiff can, therefore, only succeed if he can show that it is the usage of the country, that is of Ahmedabad City and if he can prove a custom amounting to a rule of law.’’
34. “I agree that the lower Appellate Court’s decree should be confirmed and that the appeal should be dismissed with costs.’’
35. In the case of Sitaram Bhaurao Deshmukh and others vs. Sayad Sirajul Khan Nawab Amir Yar Jung Bahadur, reported in ILR-41- Bom 636. In this case Mohammad Ali Jinnah, creator of Pakistan, raise question on reference to the case of Mohammad Beg Amin vs. Narayan Meghaji the law of pre-emption is not consistent with the rules of justice, equity and good conscience and therefore it cannot be enforced against the appellants, all the High Courts except the Allahabad High Court have held the same view. Mr. Jinnah submits that, in Allahabad the peculiar circumstances existing in that part and the predominance of the Mahomedan population have led that Court to apply the law of pre-emption; Mr. Jinnah referred to the decision of Gobind Dayal v.Inayetullah(1885) 7 All. 775. Secondly, the defendants being Hindus the law which is applicable is the law of the defendants i.e. the Hindu purchasers under section 26 of the Regulation IV of 1827 as has been held in the case of Mahomed Beg Amin vs. Narayan Meghaji.
36. Their Lordships did not answer these questions, took a view not consistent with the proposition of law and held:-
37. “It remains to refer to a point based upon the fact that the plaintiff’s case is now being prosecuted by his administrator appointed since the death of the plaintiff pendent lite. The administrator obtained Letters of Administration from the Thana Court and proceeded with the suit under the authority of an interlocutory judgment of this court. It has, however, been contended that under section 89 of the Probate and Administration Act the right of the Administrator does not extend to the prosecution of this suit inasmuch as the relief sought could not be enjoyed after the death of the plaintiff. The argument is that the right of pre-emption arises on the right of a co-sharer or neighbour to take personal objection to the purchaser entering upon the land of another co-sharer or neighbour. It may be conceded that that proposition is not incorrect, but it does not follow that the relief sought, namely, conveyance of a share, cannot be enjoyed by a personal representative, or those on whose behalf he holds, after the death of the pre-emptor. Indeed it is in our opinion obvious that it can be enjoyed, inasmuch as it adds the property in suit to the estate of the deceased. For these reasons the decree of the lower Court must be affirmed and the appeal dismissed with costs.
38. In the case of Qurban Husain vs. Chote, reported in ILR 22 All-102, wherein the vendor is Shia and vendee is Sunny, it is held as:
39. “The appellant is claiming what has been properly described as a weak right. He is trying to place a restriction upon liberty of transfer of property. It is for him to show that he is vested with some right or power to make such restrictions. The shia law gives him –a shia-no such right under the present circumsta-nces, and it is for him to show us that he can take advantage of the Sunni law, which he would be the first to repudiate did it place any similar restriction upon himself. As he has shown no law or precedent to the above effect, I would hold that he has not proved the existence of any such right of pre-emption in himself, and would dismiss the appeal with costs.’’
40. From the aforesaid discussions we have seen that excepting the Allahabad decision ILR VII All 775 which having been reviewed, Mohammadan Law of pre-emption does no apply to non Mohammadans. Allahabad decision having failed to apply Mohammadan Law of pre-emption to a non muslim applied it on the principle of justice, equity and good conscious which is not within the law but can apply as per wisdom of the judges. Court is absolutely bound to follow law. Law is disciplined, civilized, society unless be disciplined then lawlessness prevail.
41. Now the question in hand whether pre-emptor rightly invoke his pre-emption right under Muhammadan Law against a Hindu, a non Muslim purchaser. This law point can be easily answer in this way as to whether Hindu purchaser be the pre-emptor can pre-empt the transfer under Mohammadan Law. The answare is a emphathic ‘No’. Since the Hindu purchaser or any non-Muslim cannot invoke the Muhammadan Law in any of their daily affairs, their right to all aspects including right to hold property invoking such law, (i.e. Muhammadan Law) cannot be taken away. Muhammadan Law is personal law and anybody come within the four corners of Muhammadan Law, then privision of personal law shall prevail. Mahmud J, in the decision of Full Bench, V11 ILR All 775 also observed “My idea is that the administration of law by kazis during the Muhammadan period gave mode currency to huq-i-shufa, and its advantage became so apparent to the Hindus that they attempted to naturalize it by working on its principles in Tantra in question, where an interpolation could easily be affected without any fear of detection. This must happened three or more countries ago”. Mahmud J, in applying Muhammadan Law of pre-emption to a non-Muslim, particularly to a Hindu, observed as:
42. “It may be said in this way that so long the Muhammadan government ruled this sub-continent right of pre-emption was extended to all classes of persons without any distinction of creed, colour or birth as Muhammadan Law was law of the sub-continent’’.
43. Thus it is settled that Muhammadan can claim benefit of the law of pre-emption under Mohammadan Law but the Hindu purchaser cannot claim the benefit of that law.
44. Thus we see in the instant case vendor is a Muslim and purchaser is a Hindu. By this time much water follows in the river Burigonga and by this time Pakistan was created and thereafter, Bangladesh got independence. State Acquisition and Tenancy Act along with Non-Agricultural Tenancy Act came into operation giving statutory right of pre-emption, and pre-emptor could invoke the provision of statutory law but we do not understand why the plaintiff being an Advocate instead of invoking statutory law jumped to personal law against a non muslim. Since the appellant could not invoke the provision of Mohammadan Law their purchase cannot be defeated by taking shelter of Mohammadan Law.
45. We have seen that in 1885 there was no corresponding statutory law governing the field of pre-emption and at that time pre-emption was governed as per provision of Mohammadan Law, if pre-emptor be Hindu then also he could pre-empt the land under the provision of law Mohammadan Law but now scenario has been changed and statutory law has come into operation giving right to all to pre-empt the land if law applies. In that view of the matter we find substance in this appeal.
46. Before parting with the decision let us quote an interesting passage from the judgment delivered by Mr. Mahmud, J. In the Case of Gabinda Lal’s case. Mr. Mahmud, J observe as “because the rapid rise in the value of landed property in British India has gone far to extend the exercise of the pre-emptive right and to enhance it importance by compromising it as an incident of the proprietary tenure.” In 1883, long 131 years before there was price hike which is still continuing and price of lands to gather with scarcity of lands land become ‘golden deer’ can be observed in imagination not in reality.
In the result, this appeal is allowed. No costs.
The impugned judgment and decree complained are set aside.
Pre-emption Title Suit No.47 of 2007 is dismissed.
Send down the lower court records at once.