Banerji and Aikman, JJ.
1. This was a suit for pre-emption under the Muhammadan law. The property claimed is a house situated in a blind lane, and the plaintiff claims pre-emption as a partner in the appendages of the house. It has been found by the Courts below that the vendees own houses in the same lane and would themselves have the right equally with the plaintiff to pre-empt the property against a stranger. Those Courts have held that the plaintiff has no preferential right of pre-emption and is not entitled to a decree, and they have accordingly dismissed the claim.
2. It is contended on behalf of the plaintiff, who has preferred this appeal, that the Muhammadan law does not require that the claimant for pre-emption should have a preferential right, and that under that law, if the vendee and the pre-emptor have equal rights of pre-emption as against an outsider, the property should be divided between them in the same way in which it would have been divided between them had the vendee been a stranger and both of them had claimed pre-emption against him. The contention is that the rule laid down in Book XXXVIII, Chapter I, of the Hedaya (Vol. Ill, p. 566) that 'when there is a plurality of persons entitled to the privilege of shaffa the right of all is equal' is as much applicable when the purchaser is a person having the right of pre-emption as when he is a stranger. The question thus raised is by no means an easy one, and has not, as far as we are aware, been decided by this Court. There are, however, three rulings of the Calcutta High Court which support the view of the learned Judge of the Court below.
3. In Baboo Moheshee Lal v. Mr. G. Christian, 6 W.R. 250, Bayley and Shumbhoo Nath Pundit, JJ., held that the right of pre-emption 'could, under Muhammadan law only, be against strangers or third parties not co-parceners.' In Teeka Dharee Singh v. Mohur Singh 7 W.R. 260, the same learned Judges observed that' the very fact of the purchaser not being a stranger, but one who is already either a shareholder or a neighbour, proves that the Muhammadan law of pre-emption never intended to apply to such a case.' It is difficult to follow the reasoning of the learned Judges in the case last mentioned, but in neither of the two cases have they referred to any authority of Muhammadan law as supporting their view.
4. The case of Lalla Nowbut Lall v. Lalla Jewan Lall I.L.R. 4 Cal. 831, was decided by a Full Bench, which held that 'by the Muhammadan law one co-parcener has no right of pre-emption as against another oo-parcener.' The learned Chief Justice in delivering the judgment of the Court said: 'There appears to be no reason, either upon principle or authority, why the right of shaffa should exist as between co-parceners, and the rule as laid down in Hamilton's Hedaya, Vol. Ill, Book 38, Ch. I, appears to have been misunderstood in this respect. That rule merely prescribes that any one partner (or co-parcener) of a property has a right of shaffa as against a stranger who purchases a share from his co-partner, and does not mean that the right exists as between co-partners, who may purchase shares from one another. The object of the rule, as explained in that chapter, and in Ch. 3, is to prevent the inconvenience which may result to families and communities from the introduction of a disagreeable stranger as a coparcener or near neighbour. But it is obvious that no such annoyance can result from a sale by one coparcener to another. The only result of such a sale would be to give the purchaser a larger share in the joint property than he had before, and perhaps larger than the other co-parcfeners have.' No other authorities were cited in the judgment.
5. In Mr. Justice Ameer Ali's work on Muhammadan Law it is stated, on p. 590 of Vol. I, that 'when one co-sharer conveys his share to another co-sharer, no other co-sharer, if any, can have a right of pre-emption, the rights of all being equal, and the reason on which the right is founded, therefore, being absent. In other words, no right of pre-emption arises in favour of a co-parcener when the purchaser himself is a co-sharer of the vendor and the claimant.' The learned author evidently based his opinion on the rulings mentioned above as he has not referred to any authority of Muhammadan law which warrants it.
6. As, according to the Hedaya, the object is 'to prevent the vexation arising from a disagreeable neighbour' (Vol. III, p. 591; Book XXXVIII, Chap. III), and as in the case of a purchase by a person who stands on the same footing as the claimant for pre-emption that object is non-existent, it would seem, were there no authority to the contrary, that the Muhammadan law sanctioned the enforcement of the right of pre-emption against a stranger only. But the texts from various authors who are regarded as high authorities on Muhammadan law cited by Mr. Karamat Husain, the learned Counsel for the appellant, to whom we are much indebted for his erudite and exhaustive argument, leave no room for doubt that the right of pre-emption may, under that law, be enforced against a purchaser who is not a stranger, but is a person who could equally with the plaintiff have claimed pre-emption against a stranger, and that in the case of purchase by such a person the rights of other parsons entitled to pre-empt the property should be determined in the manner in which they would have been determined had the person who purchased the property acquired it by pre-emption against a stranger purchaser in the absence of other pre-emptors, and the absentee pre-emptors had afterwards appeared and claimed their shares. It is settled law that where the vendee is a stranger and more persons than one have the right of pre-emption, and one of those persons is absent 'decree is to be given to those who are present, according to their number. But if, after decree of the whole to one who is present, a second should appear, half is to be decreed to him, and if a third should appear, decree is to be given to him for a third of what is in the hands of each of the other two.' (Baillie's Digest of Muhammadan law, 2nd Ed., p. 501. See also Hedaya, Vol. III, p. 567 and Tagore Law Lectures for 1873, p. 519), According to the authorities cited to us by the learned Counsel, to which we shall presently refer, the above rule applies and determines the right of pre-emption, even when the purchaser is a pre-emptor, that is, a person who would have the pre-emptive right as against a stranger. It is in this sense that the word appears to have been used in the folio-wing texts of Muhammadan law which have been cited to us, and which seem to us to be conclusive on the point.
7. In the Takmila Bahr-ur-Raik, [Part II, Book on Pre-emption. Egyptian Edition, p. 143] occurs a passage which has a direct bearing upon the question before us. It is thus translated: 'It is given in the Tatar Khaniyah that a neighbour purchased a house and there was another neighbour on the other side who claimed pre-emption; the house would be equally divided between the purchaser and the neighbour.' The Bahr-ur-Raik is, according to Mr. Morley (Introduction to the Digest, p. CCLXX), the most famous commentary on the Kanz-ud-Dakaik, 'a book of great reputation,' and Mr. Justice Ameer Ali says of it that 'it is highly thought of in Sunni countries' (Muhammadan law, Vol. I, Introduction, p. 19). The Tatar Khaniyah is referred to on p. CCLXXXVII of the Introduction to Morley's Digest, and on pp. 52 and 53 of Shama Charan Sircar's Tagore Law Lectures for 1873.
8. The Radd-ul-Mukhtar, which Mr. Justice Ameer Ali says, 'is certainly esteemed now-a-days as the best authority on Hanifi Law,' (Muhammadan law, Vol. I, Introduction, p. 21}, and which, according to Mr. Shama Charan Sircar, (p. 46) is 'a very high authority among the Hanifis,' quoting from Alqunyah, says: 'A neighbour purchases a house while there is another neighbour to it. (If) the neighbour then demands pre-emption and the purchaser too, the house is (to be divided) between them half and half, for both of them are pre-emptors.' [Vol. V, Book on Pre-emption, p. 165. Egyptian Edition.]. The author of the Badd-ul-Mukhtar says further: 'His words 'according to the number of the pre-emptors.' Because of their equality in the right for the whole owing to the existence of the cause of it, there ought to be equality in the juristic result. And this would include the case in which the purchaser should happen to be one of them and should demand (pre-emption) with them. He then would be calculated to be one of them and the property sold would be divided among them.' [Vol. V, p. 152.]
9. In the well known work, the Fatawa Alamgiri, we have the following passages: 'If a person purchases a house of which he is a pre-emptor and then appears another pre-emptor having an equal right with him, the Kazi (Judge) will pass a decree for one half.' [Vol. IV, Book on Pre-emption, Chap. VI, Lucknow Edition, p 15.]
10. Again: 'If the first vendee is a pre-emptor of the house and the pre-emptor present purchases it from him, and then the absent pre-emptor appears, the last named pre-emptor can, if he likes, take half the house under the first sale.'
11. The Inayah or Aini, a commentary on the Hedaya, which, Mr. Morley says, 'is much esteemed for its studious analysis and interpretation of the text' (Introduction, p. OCLXIX), contains the following passage: 'If the first purchaser is also a pre-emptor and the pre-emptor who is present also purchases it jointly with him and subsequently the absent pre-emptor appears, he (the absent pre-emptor) can, if he likes, take half the house under the first sale.' [Vol. IV, Book on Pre-emption, Lucknow Edition, p. 23.]
12. The last authority, but by no means of the least weight, to which we will refer is the Durr-ul-Mukhtar. It is, according to Mr. Justice Ameer Ali, ' a work of great authority and merit.' (Mahommedan Law, Introduction, p. 20), and the learned author of the Tagore Law Lectures for 1873 refers to it as 'a work of great celebrity' (p. 46). It says--'When two persons purchase a house and both are pre-emptors and then appears a third pre-emptor after division has been made under a decree or otherwise, he, that is, the pre-emptor, can have the division cancelled, because what was a half before, has now become one-third (Sharah wahbaniya).' [Book on Pre-emption, Calcutta Edition, p. 706.]
13. These texts, the authority of which has not been questioned by Mr. Abdul Majid on behalf of the respondents, establish, as we have said two, propositions; first, that even when the buyer is himself a pre-emptor, that is, a person who would have the right of pre-emption against an outsider, other persons having a similar right of pre-emption are entitled to claim pre-emption against the buyer; and, secondly, that in such a case the rights of the claimants to pre-emption should be determined in the same way in which they would have been determined, had the buyer acquired the property by enforcing his right of pre-emption against a stranger, in the absence of the other pre-emptors and the absentee pre-emptors had appeared subsequently and claimed pre-emption. In this view, as all persons having equal right of pre-emption are only entitled under the Muhammadan law to divide the property equally per capita, and as the purchasers in this case are two in number, the plaintiff appellant is entitled to only a third share of the property sold.
14. Mr. Abdul Majid, whilst conceding that this is so under strict Muhammadan law, contends that we should not apply the rules of Muhammadan law in their entirety to cases of pre-emption. He relies on the rulings of the Full Bench in Chundo v. Hakeem Alim-ood-deen, N.W.P. H.C. Rep. 1874, p. 28, and Gobind Dayal v. Inayat-ul-lah I.L.R. 7 All. 775, in which the majority of this Court held that the Court is not bound to administer the Muhammadan law in claims of pre-emption, but that, according to the rule of justice, equity and good conscience, that law should be applied in cases of pre-emption. We, as a Division Bench, are bound by the opinion of the majority of the Full Bench, and, according to that opinion, to administer under the rule of justice, equity and good conscience the rules of Muhammadan law in cases of pre-emption. We do not think we should be justified in applying those rules in a mutilated form, and we are of opinion that in cases of pre-emption we should apply the Muhammadan law, where it is not inconsistent with the principles of justice, equity and good conscience. We are not satisfied that the rules deducible from the texts cited above are repugnant to those principles.
15. Mr. Abdul Majid's next contention is that the plaintiff does not seek to pre-empt the whole of the property sold and that his suit must fail for this reason. It is alleged that the house in question was sold by Musammats Ulfat and Imrat on the 28th of September 1893, and that on the 29th of September 1893, five persons conveyed to the same vendees what they stated to be their interests in the house. The plaintiff has claimed pre-emption in respect of the first sale only. It is argued that as he has not claimed to preempt the property comprised in both the sales, he has thereby forfeited his right of pre-emption. We are aware of no law which requires that a person entitled to the right of pre-emption is bound to claim pre-emption in respect of all the sales which may be executed in regard to the property. What the Muhammadan law enjoins is, as observed by Mahmood, J., in Kashi Nath v. Mukta Prasad I.L.R. 6 All. 370, that 'every suit for pre-emption must include the whole of the property subject to pre-emption conveyed by one transfer.' In this case the plaintiff has in his plaint claimed the whole of the property comprised in the sale deed of the 28th of September 1893, and he has not split up that bargain. His claim, therefore, does not violate any rule of Muhammadan law. As, however, the vendees have equal rights of pre-emption with him and they are two in number, the plaintiff would be entitled to only a third share of the property on payment of one-third of the sale price, provided that he has complied with all the requirements of Muhammadan law. In this case it was denied that he had made the preliminary demands, and it was asserted that the sale had taken place with his consent. There was also a dispute as to the actual amount of the sale price. These questions have not been decided by the Lower Appellate Court. As that Court dismissed the suit upon a preliminary point, and its decision upon that point is, in our opinion, erroneous, we set aside the decree below and remand the case to the Lower Appellate Court under Section 562 of the Code of Civil Procedure with directions to readmit it under its original number in the register and to dispose of it according to law. Costs here and hitherto will abide the event.