John Edge, Kt., C.J.
1. This was an action for pre-emption. The defendants Amiran and Karim Bakhsh were also claimants for pre-emption in the share sold. The Subordinate Judge dismissed the claim. The District Judge in effect dismissed the action as against Amiran and Karim Bakhsh, but gave the plaintiff a right to obtain the share if Amiran and Karim Bakhsh did not avail themselves of the decree which they had obtained in the action. From that decree this appeal has been brought.
2. Mr. Abdul Majid for the respondents has raised a preliminary objection. The objection is this: He says, and it is not denied on behalf of the appellant, that pending the appeal to this Court, that is to say, since the appeal to this Court was filed, the share out of which the plaintiff alleged that her right arose was sold in the execution of a decree in some other case. He contends that under these circumstances we cannot pass a decree in her favour. He bases his contention on a passage cited to us from Shama Churun Sircar's Muhammadan Law, Tagore Law Lectures, 1873, p. 535, in which it is stated that 'if the shuffi previous to the decree of the kazi sell the house from which he derives his right of shuffa, the reasons or grounds of his right being thereby extinguished, the right itself is invalidated, notwithstanding he be ignorant of the sale of the house to which it related.'
3. I do not accede to Mr. Abdul Majid's contention. It appears to me that sitting here as a Court of appeal, we have got to see what was the decree which the Court of First Instance should have passed, and if the Court of First Instance wrongly dismissed the claim, the plaintiff cannot be prejudiced by her share having been subsequently sold in execution of a decree in another suit. It could not be contended, I think, if the plaintiff had obtained a decree in the Court of First Instance, that her right to maintain the decree either on review or appeal could possibly be affected by a subsequent sale of the share out of which her right of pre-emption arose. The subsequent sale could not have been alleged as a ground of appeal for instance. It was not a matter which could have made the decree of the Court of First Instance, in such a case, wrong in law or in fact; and I can see no distinction between the case in which the plaintiff obtains a decree for pre-emption in the Court of First Instance, and a case in which she proves to a Court of appeal that she was entitled to a decree in the Court of First Instance which she did not obtain. In consequence of this view the preliminary objection fails.
4. Now, as to the actual appeal before us, it appears that the plaintiff, at the date of the institution of the suit, was not in physical possession of the share out of which the right of pre-emption arose, and that she continued dispossessed up to the time of the judgment in the Lower Appellate Court. The Lower Appellate Court appears to have considered her case as one in which she had not proved her right against the other pre-emptive claimants on the ground that she was not in possession of the share out of which her right was alleged to have arisen. Now as to these circumstances, I think it was the duty of the Lower Appellate Court to ascertain whether the plaintiff was, at the date of the suit, entitled in law to the share out of which her right of preemption was alleged to have arisen. The mere fact of her not being in possession of it was immaterial except in so far as that fact might be urged as showing that she was not entitled to it. Now this is the question which the Lower Appellate Court has not tried. There is another material question in the case which has not been tried, and it is as to whether, assuming that the plaintiff is entitled to the share out of which the right is alleged to have arisen, she has only an equal right of pre-emption with Amiran and Karim Bakhsh or whether she has an inferior or superior right. The nature of the decree, if the plaintiff is entitled to one, will depend upon the findings on those points. I merely refer to these issues not as expressing exhaustively the issues that have not been tried, because the Lower Appellate Court has not tried any issues at all.
5. The decree of the Lower Appellate Court is set aside, the appeal decreed, and the case remanded under Section 562 of the Civil Procedure Code.
6. Costs to abide the event.
7. I am of the same opinion, but as the Judge who referred the case to a Bench, I wish to say that the reasons and the facts which rendered it necessary for me to refer the case are stated in my order of the 1st February 1888. The central reason of the reference was, whether the sale of the pre-emptive share, that is to say, of the rights and interests of Musammat Sakina Bibi during the pendency of the appeal would render the dismissal of the appeal a necessary result. The appeal was admitted on the 12th January 1887, and its aim and object of course Was to have it decreed by this Court that, in respect of the sale of the 25th July 1885, the plaintiff should have, on the 12th June 1886, when the first Court dismissed her suit, had her suit decreed instead.
8. Mr. Abdul Majid argued that the sale of Musammat Sakina's rights and interests, which sale took place exactly eight days after the admission of this second appeal, namely, on the 20th January 1887, was sufficient to deprive her of her pre-emptive right, and for this contention he relied upon the passage to which the learned Chief Justice has referred, namely, the passage at page 535 of the Tagore Law Lectures for 1873, and the passage from the Hedaya to be found at page 562 of Grady's edition of Hamilton's Hedaya, which runs as follows:
Besides, it is an express condition of shuffa, that a man be firmly possessed of the property from which he derives his right of shuffa at the time when the subject of it is sold--a condition which does not hold on the part of the heirs. It is, moreover, a condition that the property of the shuffi remain firm until the decree of the kazi be passed, and as this does not hold on the part of the deceased shuffi, the shuffa is therefore not established with respect to any one of his descendants, because of the failure of its conditions.
9. The learned Counsel argued that the passage in the Hedaya meant that actual physical possession of a share, that is to say, of the pre-emptive share, was a condition precedent to the exercise of the right of pre-emption. The translation as made by Mr. Hamilton is somewhat loose, but it is clear that what is intended to be conveyed by the author of the Hedaya was, that, in what I may call the pre-emptive tenement, the pre-emptor should have vested Ownership and not a mere expectancy of inheritance or a reversionary right, or any other kind of contingent right, or any interest which falls short of full ownership. For instance, in the case of a usufructuary mortgagee who is in possession, the application of the passage would require holding that no right is possessed by such a mortgagee. I do not think that any other interpretation can be placed upon the passage, and I hold also that such is the case-law as shown by some of the reported cases.
10. Then as to the question, whether a sale such as the sale of the 20th January 1887, falls within the rule contended for by Mr. Abdul Majid, I agree with the learned Chief Justice in holding that we, as a Court of appeal, are concerned with the question what the decree of the first Court should have been, and not with the matters which have happened since the decree was passed, other than those relating to the array of parties which occurred subsequent to the decree of the Court of First Instance. I may say, as I understand the text of the Hedaya, namely, the text at pages 601 and 602, that I have no doubt that although the Muhammadan Law requires that, if by reason of a voluntary sale or other circumstance the pre-emptor before the passing of the decree of the first Court ceases to be the owner of the pre-emptive tenement, then the decree cannot be given in his favour; yet the rule cannot be carried to Courts of appeal, or Courts of error, as the Courts concerned with rectification of the decrees of the Courts below. There is also some doubt in my mind whether the passage so far as it relates to sale by a pre-emptor of his pre-emptive tenement before the decree of the kazi, is applicable to compulsory sales such as the sale of the 20th January 1887. The sale may or may not have been validly made. It may possibly be the subject of a separate litigation in the execution department to which execution proceedings the present defendants, Mr. Abdul Majid's clients, would possibly be no parties, and the fate of the litigation may be in favour of Musammat Sakina Bibi or against her. Such facts cannot be taken notice of at this stage in a litigation, which, if the pre-emptor's case is established, was rightly commenced and should have ended in the decretal of her claim.
11. In connection with the latter point I think it my duty to refer to the case of Khuda Bakhsh v. Ramlautan Lal, Weekly Notes, 1884, p. 169, in which a Division Bench of this Court held that, because subsequent to a decree for pre-emption, and during the pendency of the appeal, in a totally separate litigation a decree had been passed which directed that the pre-emptor was not entitled to the pre-emptive tenement, namely, the tenement which gave him the right to sue, therefore such adjudication deprived such pre-emptor of his pre-emptive right and rendered the decree for pre-emption null and void. The case is not on all fours with the present case. If the case were applicable to this case I should have very great hesitation in holding that it was correct law. The rule of lis pendens is a broad doctrine, and the maxim pendente lite nihil innovetur is sufficiently broad to invest this question with some difficulty.
12. This case has not been tried upon the merits, and there are other questions in the case to which I have not referred, because I agree in the order of the learned Chief Justice that the case should go back under Section 562, of the Civil Procedure Code, and be tried on the merits by the Lower Appellate Court which Court should frame a decree such as the findings may require.
13. Costs to abide the result.