Basil Scott, Kt., C.J
1. This suit was filed by the original plaintiff, a Mahomedan, against four Hindus, alleging that as the owner of a twelve-annas share in the inam villages of Vahal and Patowdhi in the Panvel Taluka, in which His brother the late Abdul Hak was the owner of the other undivided four-annas share, he was on account of a contract entered into by Sirdar Ali Khan the executor of Abdul Hak for the sale of the latter's four-annas share to the defendants entitled under the Mahomedan law to a right of pre-emption of the four annas share which had passed into the possession of the defendants under a sale-deed executed by their vendor.
2. The contract of sale was entered into on the 14th of October 1908 and on the same date a letter was sent by the executor of Abdul Hak, the vendor, to the plaintiff intimating that he had sold the quarter share in the villages to the defendants for the sum of Rs. 29,999. That letter stated that as the plaintiff was the Inamdar of the three-fourth share in the villages, the executor gave him notice that if he was desirous of purchasing the villages for the sum to be paid by the defendants, he should send a cheque for Rs. 29,999 by return of post and in the event of his not replying to the letter or paying the money within two days after receipt there-of the writer would close the bargain and obtain the sale proceeds.
3. The contract of sale of the same date was addressed by the defendants to their vendor. It recited that they had paid that day Rs. 1,000 as earnest money and would pay Rs. 14,000 on the 17th of October and the remaining Rs. 15,000 after about twenty days following the 17th of October and would take a pacca deed of sale, bearing the expenses of stamp and registration. It recited that certain documents of title had that day been obtained from the vendor and stipulated that the vendor should also give them a copy of the notice sent that day to the owner of the three-quarter share in respect of the sale of the vendor's share and the receipt of the acknowledgment which would be received from him. Then follows this passage:-' We have purchased your said share with the arrears of rent due from the tenants up to this day and with the crops of the current year for the above mentioned Rs. 29,999. If the owner of the three-fourth share is willing to purchase your said share and if you and he agree to the purchase, you should immediately return us the rupees which you have received from us'.
4. The plaintiff alleges that upon the receipt of the vendor's letter of the 14th October he with the object of asserting and exercising his right of Shaffa or pre-emption under the Mahomedan law performed the table-i-mowasibhat and declared his intention of claiming his right of purchasing the quarter share of the late Abdul Hak and on the following day reiterated his demand and performed the talab-i-ishhad and made a demand according to Mahomedan law both by letter and verbally through his agent in the presence of witnesses and on the site of the villages themselves.
5. It is not argued in this appeal that the trial Court was wrong in holding that the plaintiff had gone through all the formalities necessary to entitle him to exercise his right of pre-emption, namely, the talab-i-mowasibhat and the talab-i-ishhad. But it is contended that the formalities were observed too soon and were consequently ineffectual. Turning again to the correspondence: On the 17th of October the plaintiff's attorneys informed the vendor that as regards the alleged offer of the defendants if the sum mentioned was their genuine and bona fide offer for the purchase of the quarter share the plaintiff' declared his intention to exercise his right of pre-emption and gave notice that he was willing to give the same price for the absolute sale to himself free from all incumbrances.
6. On the same day the vendor's attorneys appointed a time for giving inspection to the plaintiff' of the agreement between the vendor and the defendants and stated that the purchasers had already paid Rs. 15,000 being part of the purchase money and that they were willing that the plaintiff should take over the one-fourth share for the price mentioned in the agreement upon the terms therein contained and that the plaintiff' must therefore first pay them the sum of Rs. 15,000 mentioned in the agreement and be ready to pay the balance on or before the 7th November. From a letter dated the 21st of October addressed by the vendor to the defendants it appears that the executor had sent to the defendants copy of the letter of the 14th addressed to the plaintiff and his solicitors' reply of the 17th.
7. On the 28th of October the vendor wrote to the defendants in reply to their letter of the 27th, which has not been produced, stating that the plaintiff's solicitors had taken inspection of the agreement of sale entered into between them, that. no letter had been received from his solicitors since the 23rd instant and there was no reason to fear on this score as the plaintiff had not paid Rs. 15,000, whereas according to law, as the vendor understood it, he ought to have unconditionally tendered Rs. 30,000, without asking for any document or even a receipt and the vendor therefore said he was not concerned with what the plaintiff 'was going to do and looked to the defendants for payment of Rs. 15,000, the balance of the purchase money on or before the 7th of November.
8. On the 30th of October the plaintiff's attorneys wrote to the vendor's attorneys asking them to send title-deeds for inspection and give the address of the purchaser, stating that the purchase money was ready and lying idle and that the plaintiff had deposited with them a cheque for Rs. 15,000. No reply to this letter was sent and the vendor received from the defendants the balance of the purchase money and executed a sale-deed in their favour on the 9th of November which was subsequently registered.
9. On the 15th the plaintiff's attorneys sent a reminder to the vendor's attorneys regretting that they had received no reply to their letter of the 30th of October.
10. The defendants denied in their written statement that the plaintiff was entitled to claim pre-emption under Mahomedan law for the following reasons:-
(a) Plaintiff is not the original owner of the inam villages nor his descendants and still a separate three-fourth share has come to him as a purchaser of the same and similarly one-fourth share had gone to the defendants' vendor also as a purchaser of the same.
(b) The defendants having been Hindus, the plaintiff cannot claim that right against them.
(c) The one-fourth share, which has been now purchased by the defendants had been formerly sold at which time the owner of the three-fourth share had not claimed that right.
(d) The law of the right of pre-emption has not been applied by law to this District and there has been no custom to that effect in this province. And the said custom had never been enforced in the villages in suit also up to now.
(e) The plaintiff cannot claim the right of pre-emption unless he shows that he is the owner of the lands in the said inam villages.
(f) The property over which the plaintiff is claiming the right of pre-emption is not a small one but it is the inam, villages.
(g) Because the vendors of the plaintiff and the defendant are not the residents of this province, he cannot claim that right over the property in this province.
(h) The plaintiff had been informed of the particulars of the contract of sale of the one-fourth share in the inam villages in suit to the defendants. He had not shown his desire of claiming the right of pre-emption before the defendants had taken a complete deed of sale and he, not having managed to pay the money at the very time, had given evasive answers. He cannot now therefore claim that right.
(i) Sardar Alikhan had advertised the property in suit for sale long before this transaction and the plaintiff had not then claimed the right of pre-emption. On the contrary he said that not only he did not want the property in suit but also that he was willing to sell his three-fourth share if any one would happen to buy it. He cannot therefore now claim the right of pre-emption.
11. Of these objections only those under heads (b), (d) and (f) have been argued upon this appeal. It is not disputed that the statements under head (d) are correct. The custom of pre-emption has not been enforced in any District of the Bombay Presidency except Gujerat and there is no custom of the District in which these villages are situated that a co-sharer should have the right to pre-emption. Whether in a District where the right of pre-emption is not enforceable between Hindus and Mahomedans indiscriminately under the customary law, a Mahomedan claiming the right of pre-emption could enforce it against a Hindu purchaser is a matter upon which the High Courts have differed. In Madras it has been held that the law of pre-emption should not be applied even between Mahomedans. In the United Provinces the Allahabad High Court has held that the law of pre-emption can be enforced by a Mahomedan pre-emptor against a Hindu purchaser. In Bengal it has been held that outside the province of Bihar a Mahomedan pre-emptor cannot enforce the right against a Hindu purchaser; and recently in Bombay it has been held that outside the District of Gujerat a Mahomedan pre-emptor cannot enforce the right against a Hindu purchaser. The reasons assigned for the conclusions arrived at in Calcutta, Madras and Bombay are not identical, nor is the reasoning of the two Judges of the Bombay High Court identical.
12. If it were not for the special facts of this case, it would be necessary to express an opinion upon various interesting questions which have been argued upon this appeal, such as whether notwithstanding the decision in London and South Western Railway Co. v. Gomm (1882) 20 Ch. D. 562, a right of pre-emption creates no interest in land on the analogy of the concluding clause of Section 54 of the Transfer of Property Act; whether notwithstanding the decision in Gomm's case the positive right to call for a conveyance, assuming that the right of pre-emption does not create an interest in the land, is enforceable against a transferee for value with or without notice; whether under the general law of India applying in the Province of Bombay, the equitable rights which can be asserted in cases of this nature, are not limited to those specified in Section 40 of the Transfer of Property Act; and whether the right of a pre-emptor to take from a purchaser property which has passed to him under a completed agreement can be placed in the category of limitations upon the vendor's right to transfer; and lastly whether the Regulation applying the law of the defendant can be invoked in such a case as the present in favour of Hindu defendants.
13. In the special facts of this case, however, we are of opinion that the defendants are bound to comply with the plaintiff's demand for a transfer of the quarter share in the villages to him. It is competent for a party to a contract to agree that it shall be applied for the purpose of imposing rights and liabilities according to a particular law which ordinarily would not be applicable : Hamlyn & Co. v. Talisker Distillery  A.C. 202. It is clear from the contract and the subsequent correspondence that the defendants agreed with their vendor that the law of pre-emption applying between the vendor and his co-sharer should be applicable to the defendants' purchase and that the vendor should give notice to his co-sharer on that basis. Upon that footing the vendor informed the plaintiff that the purchasers were willing that he should take over the fourth share for the price mentioned in the agreement and upon the terms therein contained and it was not until after the false assurance of the vendor that the purchasers need have no fear on the score of pre-emption, (see his letter of the 28th of October), an assurance which was falsified on the 30th by the plaintiff's letter to the vendor, that the defendants finally completed the transaction by taking a conveyance of the property.
14. It has been argued as already noticed that, upon the footing of the Mahomedan law applying to the case, the action of the plaintiff in performing the talabs was premature. The rules of the Hanifeea law in this respect are somewhat confusing as may be seen from a reference to them in Sir John Edge's judgment in Begam v. Mahammad Yakub I.L.R. (1894) All. 344 and the law would become still more confusing if the strictest reading of the Transfer of Property Act were applied to the case. It is under the circumstances safest to adopt the rule suggested by the Calcutta High Court in Jadu Lal Sahu v. Janki Koer I.L.R. (1908) Cal. 575, namely, to ascertain the intention of the parties as to the date when the bargain is to be considered as concluded. The contract between the defendants and their vendor leaves no doubt as to the date which should be taken. It is the day of the contract itself, as from which time the defendants say that they have purchased the share with arrears of rent due from the tenants up to that day. The plaintiff performed the talabs immediately he received news of the transaction and there is no reason upon the evidence recorded to suppose that the statement of his solicitors that the purchase money was lying idle and that a cheque for Rs. 15,000 had been deposited with them by the 30th of October was not correct.
15. We have also considered the alternative view that the correspondence between the plaintiff and the vendor establishes a contract for the sale of the quarter share of which the defendants had notice and that they were therefore bound under Section 40 of the Transfer of Property Act to hold the property for the plaintiff notwithstanding their registered conveyance. It may be doubted, however, whether the correspondence in so far as it contains a claim for a marketable title justifies the conclusion that there was a completed agreement for sale de hors the plaintiff's right of pre-emption as a Mahomedan co-sharer, nor is it certain that the defendants at the time of their conveyance had notice of all the letters passing between the plaintiff' and the vendor up to the end of October. The special facts of the case justify, however, a decision in favour of the plaintiff on the ground that, the Mahomedan law of pre-emption applies to the case by the agreement of parties and that the plaintiff has taken all such steps as it was necessary that he should take according to that law.
16. The point argued under the heading (f) of the fourth clause of the written statement cannot help the defendants. There is no limit to the size of the property of which preemption may be claimed by a co-sharer: though there is a limit in the case of those who base their claim on vicinage.
17. 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 pendente 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.