1. These two connected appeals have been referred together to the Full Bench as presenting the same question for determination by the Court, and I have been requested by my learned brethren to deliver my judgment first. The question is exactly the same as that which was raised in Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134. The order of reference in F.A. from Order No. 135 of 1883, after alluding to certain rulings of this Court and of the Calcutta Court, and considering the great importance of the points of law involved, refers to the Full Bench the following question: 'In a case of pre-emption, where the pre-emptor and the vendor are Muhammadans and the vendee a non-Muhammadan, is the Muhammadan Law of pre-emption to be applied to the matter, in advertence to the terms of Section 24 of Act VI of 1871?' This question presents itself to my mind in two aspects. The first is, whether Section 24 of the Bengal Civil Courts Act renders it imperative on this Court and the Courts subordinate to it to administer the Muhammadan Law in cases of this nature? The second is, what is Muhammadan Law of pre-emption in regard to the point before us
2. The first of these questions depends upon the construction to be placed on Section 24 of the Bengal Civil Courts Act (VI of 1871). In discussing this, I shall be within the recognized rules of interpretation in reviewing shortly the history of the particular section in question. It is not a new provision of the law. The principle which it embodies was recognized by the British rule at the outset of its authority in this country. The history of the recognition of this principle has been accurately traced by a learned Judge of the Indian Bench, Mr. Justice Field, at pages 169--171 of his valuable work on the Regulations of the Bengal Code. The legislation there described began with the Regulation of the 21st August 1772, which laid down the exact scope of the application of the Hindu and Muhammadan Laws, and the omission to provide for cases which did not fall within the rule was supplied by the Regulation of the 5th July 1781, which directed that ' in all cases for which no specific directions are hereby given, the Judges do act according to justice, equity, and good conscience.' The latter part of the rule was reproduced in Section 21 of Regulation III of 1793, and the former part of the rule was re-enacted in Section 15 of Regulation IV of 1793, which laid down that 'in suits regarding succession, inheritance, marriage, and caste, and all religious usages and institutions, the Muhammadan laws with respect to Muhammadans, and the Hindu laws with regard to Hindus, are to be considered as the general rules by which the Judges are to form their decisions.' To the two-fold rule so laid down, addition was soon after made by Regulation VIII of 1795, which enacted that ' in cases in which the plaintiff shall be of a different religious persuasion from the defendant, the decision is to be regulated by the law of the religion of the latter, excepting where Europeans or other persons, not being either Muhammadans or Hindus, shall be defendants, in which cases the law of the plaintiff is to be made the rule of decision in all plaints and actions of a civil nature.' The principle of applying the native laws according to the religious persuasions of the parties to the suit, and, with reference to the accident of their being arrayed as parties-plaintiffs or parties-defendants in the litigation, is an illustration of the simplicity which marks some of our oldest legislative enactments. The principle must have given rise, not only to confusion, but in some cases to positive injustice; whilst in eases where every one of the persons arrayed as parties to the suit belonged to a different persuasion, the application of the rule must have been impracticable. The experience of some years seems to have brought this difficulty into prominence, for we find that the next important piece of legislation on the subject was Regulation VII of 1832, Section 9 of which, while affirming the rules to which reference has already been made, added a new proposition as an injunction to the Courts administering justice under the East India Company. The section ran thus: 'It is hereby declared, however, that the above rules are intended and shall be held to apply to such persons only as shall be bona fide professors of those religions at the time of the application of the law of the case, and were designed for the protection of the rights of such persons--not for the deprivation of the rights of others. Whenever, therefore, in any civil suit, the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Muhammadan persuasion; or where one or more of the parties to the suit shall not be either of the Muhammadan or the Hindu persuasion, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of those laws, they would have been entitled. In all such cases, the decision shall be governed by the principles of justice, equity and good conscience, it being clearly understood, however, that this provision shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by those principles.
3. Such was the law at the time when the celebrated case of Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 was decided by the Full Bench of the Calcutta High Court. Since that time, however, the provisions which I have referred to have been repealed by the Bengal Civil Courts Act (VI of 1871), and the question is now governed by Section 24 of that Act, which provides that ' where in any suit or proceeding it is necessary for any Court under this Act to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law in cases where the parties are Hindus, shall form the rule of decision, except in so far as such law has, by legislative enactment, been altered or abolished. In cases not provided for by the former part of this section, or by any other law for the time being in force, the Court shall act according to justice, equity, and good conscience.' It is this section with which weare directly concerned in the present case, and I have referred to the old Regulations because, without reference to them, the law in its existing form can scarcely be properly interpreted.
4. The question then arises: Is pre-emption a 'religious usage or institution' within the meaning of the section? It cannot come within any of the other matters enumerated. A similar question was considered by a Full Bench of this Court in connection, not with the subject of pre-emption, but with that of gift under the Muhammadan Law. This was in the case of Shumsh-ool-nissa v. Zohra Bibi N.W.P.H.C. Rep. 1874 p. 2 in which the Court was divided in opinion, Spankie, J., differing from the other three Judges, Stuart, C.J., Pearson, and Jardine, J.J. The majority of the Court were of opinion that, under Section 24 of Act VI of 1871, the Muhammadan Law is not strictly applicable to questions relating to gifts, but it is equitable as between Muhammadans to apply that law to such questions. I shall presently refer to the dissentient judgment of Spankie, J., for whose opinion upon such questions I have always entertained the greatest respect. Shortly after this, the Full Bench case of Chundo v. Hakeem Alim-ood-deen N.W.P.H.C. Rep. 1874 p. 28 was decided. That repeats the same principle, but is still more to the point, because it relates to pre-emption, and the majority of the Court held that, under Section 24 of Act VI of 1871, the Mahammadan Law is not strictly applicable in suits for pre-emption between Muhammadans, not based on local custom or contract, but it is equitable in such suits to apply that law. Here again Spankie, J., adhering to the opinion formerly expressed by him, dissented from the opinion of the majority of this Court.
5. Now, as to the two Full Bench cases, the opinion of the majority of this Court in regard to gift and pre-emption was that, although the Court was, as a matter of fact, bound to apply the rules of Muhammadan Law, it was so bound not by the strict terms of the first part of Section 24, but by the rule of justice, equity, and conscience, referred to in the second part. Spankie, J., on the other hand, held that the law of pre-emption, as of gift, must be applied under the first part of the section, being included under the head of ' religious usage or institution.' In other words, the majority thought that they might properly let their notions of justice, equity, and good conscience prevail over those of the Muhammadan Law, while Spankie, J., held that the Court was absolutely bound to follow that law. With all due respect to the majority in that case, I cannot help observing that the view expressed by Spankie, J., is the only one which could be accepted by a Muhammadan lawyer sitting here as a Judge. That learned Judge did not consider the question in any limited or superficial manner. He carefully and thoroughly dealt with the circumstances under which the Muhammadan Law is binding upon the Courts, and referred to the opinions expressed by Muhammadan writers, and, among others, to a work by my father, Syed Ahmed Khan Bahadur. He observed: 'It is contended that we cannot connect ' religious usage or institution' with cases of gift, and that it would be straining the ordinary acceptation of the meaning of the words to do so. But I am not satisfied that this is the case. 'Usage' ordinarily means use or long continued use, custom, practice. ' Institution ' means the act of establishing, establishment, that which is appointed, prescribed or followed by authority, and intended to be permanent. One of the four senses in which the word ' institution ' is used technically extends to laws, rites, and ceremonies, which are enjoyed by authority as permanent rules of conduct or of government. So far, then as the ordinary meaning of the word goes, I do not see anything anomalous in the suggestion that judicial questions regarding gifts may be determined according to religious usage, which includes prescription as well as custom. So if laws have been enjoined by authority to govern questions of gift and were intended to be permanent, the word 'institution' may not be misapplied. It is to be remembered that Hindu and Muhammadan laws are so intimately connected with religion that they cannot readily be dissevered from it. As long as the religions last, the laws founded on them last. Mr. Baillie has noticed this, and he remarks that Muhammadans in the provinces are more in the habit of regulating their dealings with each other by their own law, and to disregard it would be inconsistent with justice, equity, and good conscience; and, this being so, he assumed that the Judges have been obliged to extend the operation of the Muhammadan Law beyond the cases to which it is strictly applicable under the Regulations. He quotes Macnaghten in his preface to the Principles of Muhammadan Law, as having arranged the order of cases in which this, law has been applied by our Courts.' The learned Judge then proceeds to consider the cases in which Baillie holds that the Muhammadan Law perforce applies. Then he goes on to say: 'Questions then, of gifts, pre-emption, etc., if not governed by Muhammadan Law as expressed clearly in the text of the Kuran, are controlled by religious usages founded on, or institutions enjoined by the oral law or sayings of the Prophet.' And in conclusion: 'I am of opinion that the proper answer to the reference is, that the suit giving rise to it should be determined by that law (i.e., the Muhammadan Law), and without reference to the principles of justice, equity, and good conscience.'
6. Now, although the decision of the majority in that case is binding upon me, I regard the question as virtually reopened by this case, and I must therefore confess that I am unable to agree with it, and my reasons are these: In the first place the Muhammadan Law of gift or pre-emption either is or is not law in the proper sense, by which I mean a rule of conduct binding upon the subjects of the State, and upon the Courts which the State has established. No doubt the opinion of the learned Judges leads to the same result, They also apply the Muhammadan Law, not as a law, but only as a rule enjoined by equity. In my view, equity cannot, so to speak, invent rules by which rights are to be determined: it must follow and be guided by rules which are law in the strict sense. This is implied by the maxim coquitos sequitur legem; and the 'lex' to be followed must mean the law of the land in which equity is administered, and not any foreign law or any system not obligatory on the Courts. If it is supposed that equity can, in some unexplained manner, evolve rules as to gift or pre-emption without any example or analogy in the rules of law, I do not understand how the maxim is to be applied. No equity, for instance, could invent rules on the subject of inheritance or limitation, and apply them to the determination of rights. Further, if the view of the majority of the Court in the cases referred to were correct, the first part of Section 24 would be superfluous. It would be easy to apply their reasoning in regard to gift and pre-emption, to marriage und inheritance, and the other matters mentioned in the section, by simply following the rule of justice, equity, and good conscience provided by the latter part of the section, and by saying that the Hindu and Muhammadan Laws were therefore to govern them.
7. Upon the present occasion it is unnecessary to consider whether 'gift' can properly be described as a 'religious usage or institution' within the meaning of Section 24. I am here concerned only with the question whether preemption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by SPANKIB, J., I may observe that preemption 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 act 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 inheritance, 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 up 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; and I myself know of a case in which, after a Muhammadan's death, his property was divided into twenty-three shares, each heir having a separate share in every parcel. If such a law of inheritance were not mitigated by the law of pre-emption, the result would be serious inconvenience, and possibly even disturbance. It is hardly necessary to add that the zenana system, which the Muhammadans regard as based upon religious texts, and which emphatically prohibits invasion of the privacy of a domestic habitation, lends an importance to the pre-emptive right, even when claimed ex jure vicinitatis, which it would not perhaps have otherwise possessed. This would go some way to support Mr. Justice Spankie's conclusions; but the point is perhaps not one of much practical importance, because, whatever view may be taken as to the right of pre-emption, all are agreed that it must be enforced by the Courts. I need only refer to one more case on this part of the subject--Ibrahim Saib v. Muni Mir Uddin Saib Mad. H.C. Rep. 26 decided by the Madras High Court, in which Holloway, J., stated the question to be--'Whether a Muhammadan can exercise the right derived from neighbourhood (ex jure vicinitatis) to insist upon the sale by a Hindu being made to him instead of to another Muhammadan.' I concur in the conclusion arrived at by Holloway, J., in that case, so far as that conclusion simply answered in the negative the specific questions enumerated by the learned Judge. But unless the Civil Courts Act in the Madras Presidency as to the administration of the Muhammadan Law is very different to that which is in force in these Provinces, I am bound to say that there is much in his mode of treating the Muhammadan Law of pre-emption, in which I am unable to concur.
8. So far I have been considering the question whether the Muhammadan rule of pre-emption can, at least by a liberal construction, be described as a 'religious usage or institution' within the meaning of the Bengal Civil Courts Act. Before leaving Section 24, I wish to refer to the word ' parties,' which occurs in it. And upon this point much of what I have already said as to the provisions of the old Regulations applies also to the interpretation of this section. I do not understand the word to mean the parties to an action, but it must be interpreted with reference to the inception of the right involved in the action. Any other interpretation would render the section impracticable, if not meaningless. Who are necessary parties to an action is a matter governed by the rules of procedure, and in a country like India, where personal laws prevail, it is not an uncommon occurrence that every one of the persons arrayed as parties to the suit belongs to a different race and religion. In such a case, it would be impossible to administer any particular law if the word 'parties' in the section meant 'parties to the suit,' This is obviously the only interpretation which can apply to the administration of Muhammadan Law of inheritance and succession by our Courts. Indeed, cases are readily conceivable in which none of the parties to the suit are Muhammadans, but in which their right, having been derived by transfer or otherwise from Muhammadans, the Muhammadan Law would be the sole rule of decision, because the inception of the rights to be adjudicated upon took place under that law. This can be best illustrated by supposing the case of a Muhammadan who dies leaving a widow, a son, and a daughter, each one of whom conveys his or her share, by gift or sale in the estate of the deceased, to a Hindu, a Christian, and a Parsi, respectively. It is to my mind obvious that in a suit between these various transferees, involving the ascertainment of the extent of the right of each person, the Muhammadan Law would, under the former part of Section 24 of the Bengal Civil Courts Act, be the only possible guide for decision, and that law would apply in its strictest force, notwithstanding the circumstance that none of the parties to the suit belonged to the Muhammadan persuasion. There is no reason for not applying the same principle to the cases to which this reference relates; and it follows that the circumstance that some of the parties to these suits are Hindus, would not, ipso facto, render the Muhammadan Law of pre-emption inapplicable, but that the question must be decided with reference to the rules governing the inception of the pre-emptive right claimed in these two cases. This leads me to another aspect of the question. To the cases out of which this reference has arisen, both Hindus and Muhammadans are parties, and the standing Full Bench rulings of this Court, already referred to, lay down the rule that the Muhammadan Law of pre-emption is to be administered, not as a laid by which the Courts are bound, but only on the general principles of justice, equity, and good conscience. And if this is so even in cases where all the parties are Muhammadans, it follows a fortiori that in cases like the present, where some of the parties are Hindus, the same principle would apply; and thus the question whether the Hindu Law recognizes any rules of pre-emption naturally assumes sufficiently great importance to justify my dwelling upon it at some length; for no rule of equity can either invent the law of pre-emption or administer it to people who never had such a law. And, in view of this circumstance, I will deal with the matter under three heads; first, the history of the law of pre-emption, and its introduction into India; secondly, the manner in which it has been administered by the British Courts; and thirdly, the Muhammadan texts upon which my conclusions are founded.
9. Upon the first point, I desire to cite a passage from the introduction of Sir W. Macnaghten's Principles and Precedents of Muhammadan Law (p. 14). He says: 'Sales of land and other immoveable property are clogged with an incumbrance, which is not, however, peculiar to this Code. I allude to the law of pre-emption. This confers the privilege on a partner or a neighbour to preclude any stranger from coming in as a purchaser, provided the same price be offered as that which the vendor has declared himself willing to receive for the property to be disposed of.' Then, after discussing the question whether pre-emption prevailed originally among the Hindus, he goes on to say: 'I have found in the Maha Nirvana Tantra, a work which chiefly treats of mythology, a passage which would seem to imply that preemption is recognized as a legal provision according to the notions of the Hindus. But it remains yet to be decided whether this shall be held to be practical law or not.'
10. I hope, before ending this judgment, to contribute something to a settlement of the question which Sir W. Macnaghten regarded as undecided, having long taken an interest in the subject of pre-emption, and having considered it my duty to investigate the much-vexed question whether the right existed under the old Hindu Law, and whether the Muhammadans found it existing when they came into India. I may here quote from a very distinguished Sanskrit scholar, Dr. Rajendralal Mitra. After stating that the Smritis, from which the Hindu Law is derived, contain no reference to the right of pre-emption, the learned scholar goes on to say: 'The word samanta is everywhere defined to mean owner of an adjoining property, and not the right which such an owner has to claim precedence in purchasing his neighbour's property. The word occurs first in Manu (VIII, 258), and there it means 'neighbour,' and most of the other text-writers have since used it invariably in the same sense. The verse of Katyayana might at first sight suggest a different meaning, but the commentators leave us no option in the matter. The verse, literally translated, would mean ' a village is the samanta of a village, a field is said to be so of a field, a house is defined to be that of a house, from their being near to each other.' And this suggests the idea that each of the classes of land being reckoned samanta to a similar class, there would be no samanta in a dissimilar case; that is, the owner of a field or hut could not claim pre-emption for a village, and unless this be admitted, the classification becomes unmeaning. But Vijnanesvara, the author of the Mitakshara, commenting on the text of Yajnavalkya, does not accept this obvious and direct meaning. He says, by the words grama, &c;, men residing thereon are indicated. And all the leading writers of digests accept this meaning. Under these circumstances, it would be hazardous in a question of positive law to accept any other meaning. The practice of resorting to figures of metonymy is very common among Sanskrit writers, and we cannot urge that the interpretation of Vijnanesvara is a forced one. In so far, therefore, the argument as founded on the word samanta may be rejected as untenable. Dr. Monier Williams, in his English Sanskrit Dictionary, has given prakhyata as the equivalent of pre-emption, but this meaning has not been given in any original Sanskrit work on law. I must therefore reject it, too, as of no value in the decision of the question at issue. The absence, however, of a concrete term to imply pre-emption does not necessarily imply the absence of such a right, and there are indications to the contrary in our law-books. Preemption pre-supposes living in joint families, and the desire to exclude strangers from intruding into a family-house or the privacy of a zenana. The Hindus felt this desire at an early period, and tried to restrain co-sharers from selling their shares to outsiders; but this device never developed itself into a positive law, and the latest digest-writer, the author of the Dayabhaga, in a manner sets it aside by saying that sales of undivided shares are immoral, but valid in law. In so far, the claim to pre-emption in oases where it is most urgently demanded is entirely abandoned. Had there been any authentio law in existence, it would have for certain been cited in some case or other, but there is no record of any such citation. These remarks are certainly not in keeping with the positive rules laid down in the Maha Nirvana Tantra, and quoted in the preface to Macnaghten's Muhammadan Law; but those rules, not having been recognized by any of our current law-books, cannot be held binding or authentic. It has been Dowhere recognized as an authority on law. Nor has it been anywhere quoted in a law digest. Moreover, the Tantra is not by any means an ancient work. The belief is, that the most authentio Tantras number sixty-four, but the name of the Maha Nirvana does not occur among them, and it must therefore be accepted to be of secondary importance, even as a Tantra. My idea is, that the administration of law by Kazis during the Muhammadan period gave wide currency to haq-i-shufa, and its advantage became so apparent to the Hindus that they attempted to naturalize it by working on its principles in the Tantra in question, where an interpolation could easily be effected without any fear of detection. This must have happened three or more centuries ago.'
11. I now quote from another eminent authority, Dr. Jolly of the University of Wurzburg, in Germany, who recently acted as the Tagore Professor of Hindu Law at the University of Calcutta. He says: 'The only trace of pre-emption in the Hindu law which I am aware of occurs in a text quoted in the Mitakshara and other standard law-books. It is as follows: 'Transfers of landed property are effected by six acts by consent of fellow-villagers, kinsmen, neighbours, and co-parceners, and by gift of gold and water.' This text indicates clearly the existence in the early period of the Hindu Law of a feeling that a transfer of landed property is not valid unless the neighbours, fellow-villagers, and others who are but remotely concerned with it should have given their consent to its being effected. These persons might therefore be supposed perhaps to have been invested with a right of pre-emption. Whatever notions may have been prevalent on this subject in the early period of Hindu Law, this much is clear, that the compilers of those commentaries and digests of law on which the modern law is based did not approve of any sort of pre-emption. Thus the Mitakshara, in dealing with the above text, deprives it entirely of such legal significance as may have once belonged to it. The consent of fellow-villagers, according to the Mitakshara, is required for the publicity of the transaction merely; but the contract is not invalid without their consent. The consent of neighbours tends to obviate future disputes concerning boundaries. The consent of kinsmen and co-parceners (dayada) is indispensable when they are united in interest with the vendor. If they are separate from him, their consent is useful, because it may obviate any future doubt as to whether they are separated or united, but the want of their consent does not invalidate the transaction. The gift of gold and water serves to ratify the transfer of property--(see Colebrooke's Mitakshara, 1, 230--232). This interpretation of the Mitakshara may be viewed as an instance of the way in which the Indian commentators used to dispose of obsolete laws. At the same time, it shows clearly that anything approaching to preemption was entirely foreign to the ideas of such an eminent authority as Vijnanesvara the author of the Mitakshara. Nor is there any other trace of pre-emption in the Hindu law-books. The Tantras, generally speaking, have never been recognized as authoritative law-books I any sense of the word.'
12. Adopting the authority of these eminent Sanskritists, there is no doubt in my mind that the question which Sir William Macnaghten regarded as open to doubt is in reality not so, and that there has never been such a right as that of pre-emption recognized by the Hindu Law, though I cannot forget that the rule of that law which prohibits any member of a joint undivided family from selling his share in the joint property without the consent of his co-parceners, aims at a result not dissimilar to that which the Muhammadan Law of pre-emption is intended to achieve. 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 difficulty as would otherwise have arisen with regard to the question how the rule of preemption 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 preemptive right.
13. I now turn to the case-law upon the subject. In Ramrutun Singh v. Chunder Naraen Rai 1 S.D.A. Rep. 1 which is the earliest reported case, having been decided in 1792, it was held by the Bengal Sadr Diwani Adawlat, 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 Kanhaee Rai v. Bung Chund Bunhoojea 3 S.D.A. Rep. 17 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. A similar view of preemption was taken by the Madras Diwani Adawlat in Kristnien v. Sendalangara 3 Morley's Digest p. 344 decided in 1849. In that case, before judgment was delivered, the Pandits who were at that time consulted as assessors upon points of Hindu Law, gave it as their opinion that no general right of pre-emption existed under that law, and could not be enforced except in cases ' where there exists a resolution in a village to the effect that a share-holder in such village should sell his land only to another shareholder of the same village, and if an inhabitant sell his estate to a stranger or to the inhabitant of another village, the other inhabitants of the village where the estate in question is situated, are competent to claim the right of pre-emption of such estate.' This, however, only shows that special local custom, when duly adopted, would override the general Hindu Law. These cases leave no doubt in my mind that the Courts have never recognized the rule of pre-emption as a part of the Hindu Law.
14. The law of pre-emption is essentially 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 makes no distinction between persons of different races or creeds. 'A Musalman and a Zimmee 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 preemption 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. Daulat Ham I.L.R. 5 All. 110 and in the recent case of Sheoratan Kuar v. Mahipal Koer Ante p. 258 explained my views as to the manner in which this custom has been adopted by the Hindu community.
15. Now, there can be no question that the Muhammadan Law of pre-emption must be administered in cases in which all the parties concerned are Muhammadans, The question is, whether it should be administered in cases in which only the vendee is a Hindu. Before expressing my own view of the matter, I think it will be useful to review the case-law on the subject, and to ascertain how it stands at present. The most important of the cases is that of Sheikh Kudratulia v. Mahini Mohan Shaha 4 B.L.R. 134. It was there ruled by a majority of the Judges of the Calcutta High Court (Peacock, C.J., and Kemp and Mitter, J.J.), that a Hindu purchaser is not bound by the Muhammadan Law of pre-emption in favour of a Muhammadan co-parcener, nor is he bound by the Muhammadan Law of pre-emption on the ground of vicinage, because the right of pre-emption in a Muhammadan does not depend on any defect of title on the part of his Muhammadan co-parcener to sell except subject to his right of pre-emption, but upon a rule of Muhammadan Law which is not binding on the Court, nor on any purchaser other than a Muhammadan. The minority (Norman and Macpherson, JJ.), on the other hand, held that whenever a Muhammadan co-sharer or neighbour has a right of pre-emption, when property is sold by his neighbour or co-sharer, also a Musalman, his right is not defeated by the mere fact that the purchaser is a Hindu. The ruling of the majority of the Court was adopted by a Division Bench of this Court in Moti Chand v. Mahomed Hossein Khan N.W.P.H.C. Rep. 1875 p. 147. These two cases are clear authorities against the opinion which I hold. Upon the converse of the proposition which they laid down, I may refer to a case in which the pre-emptor was a Muhammadan, the vendor a Hindu, and the vendee a Muhammadan. This was the Full Bench case of Chundo v. Hakeem Alim-ood-deen, N.W.P.H.C. Rep. 1874 p. 28, in which it was ruled (Spankie, J., dissenting), that the application of Muhammadan Law in a suit for pre-emption between a Muhammadan claimant of preemption and a Muhammadan vendee on the basis of that law, is not precluded by the fact of the vendor not being a Muhammadan. The rule so laid down was the only one which could be adopted consistently with the principle on which the two last mentioned oases were decided. But it was subsequently and formally over-ruled in the Full Bench case of Dwarka Das v. Husain Bakhsh I.L.R. 1 All. p. 564 in which it was held (Stuart, C.J., and Pearson, J., dissenting) that where the vendor is a Hindu, a suit to enforce a right of preemption founded upon Muhammadan Law is not maintainable. In this case, the majority of the Court followed in principle the judgment of Couch, C.J., in Poorno Singh v. Hurrychurn Surmah 10 B.L.R. 117 where it was held that the right of pre-emption arises from a rule of law by which the owner of the land is bound, and that it is essential that the vendor should be subject to that rule of law.
16. I have read these cases carefully, and it appears to me impossible to reconcile them. The most important of them are Sheikh Kudratalla v. Mahini Mohan Shaha 4 B.L.R. 134 and Dwarka Das v. Husain Bakhsh I.L.R. 1 All. 564 in which a Full Bench of the Calcutta High Court and a Full Bench of this Court respectively laid down two propositions, one being, so to say, the converse of the other. Bearing in mind the rules of the Muhammadan Law of pre-emption, it seems to me impossible to hold that both of these decisions can be right. I know that, as a matter of pure logic, it does not follow because a proposition is true, that its converse must be true also; and it is obvious that, as a matter of pure reasoning, if a Muhammadan pre-emptor, cannot enforce pre-emption against a Hindu purchaser, the vendor being a Muhammadan, it does not necessarily follow that a Muhammadan can enforce pre-emption where the vendor is a Hindu and the purchaser a Muhammadan. But the exigencies of the definite rules of the Muhammadan Law of preemption happen to be such as to render it essential that the various propositions relating to the subject should be governed by a common principle, and therefore consistent with each other. I may illustrate my meaning by supposing concrete cases.
17. In all cases of pre-emption there are three parties to be considered, the pre-emptor, the vendor, and the purchaser. And so far as the question now under consideration is concerned, different cases may be imagined by supposing all, or one, or two of these three parties to be Hindus or Muhammadans. The simplest and ordinary case is where all the three parties concerned are Muhammadans, and in such circumstances it is obvious, as was indeed admitted by Mitter, J., and the learned Judges who agreed with him in the case of Sheikh Kudratulla v. Mohini Mohan Shaha 4 B.L.R. 134 that the Muhammadan Law would apply,--a proposition which, as a matter of law, though not of logic, necessarily implies a negative answer where as the parties to a pre-emptive suit are Hindus. Nor can there be any difficulty in holding that, for similar reasons, the same negative answer must be given in a case in which the pre-emptor being a Muhammadan, both the vendor and the vendee are Hindus; or conversely, where the pre-emptor being a Hindu, both the vendor and vendee are Muhammadans. And to carry the reasoning further, the same negative answer must be given where, both the pre-emptor and the vendor being Hindus, the only party who is Muhammadan is the vendee. Nor would any one maintain that the Muhammadan Law would govern a pre-emptive suit in which the pre-emptor and the vendee are both Hindus, and only the vendor is a Muhammadan. Indeed, I am not aware of a single case in which the Muhammadan Law as such has been held applicable in any of such circumstances. The reason of the negative answer is that, although the Muhammadan Law of pre-emption makes no distinction of race or creed, that law, from being the common law of the land, applicable alike to Hindus and Muhammadans, has been reduced to the status of being a personal law of the latter, who alone can enforce the rights or incur the obligations created by that personal law. Eights derived from members of that community, whether by Hindus or by other non-Muhammadans would, of course, be governed by the Muhammadan Law, because, as I have already explained the inception of the right and not the array of the parties to the suit must be the turning point of the decision within the meaning of Section 24 of the Civil Courts Act. But because a Hindu is not under that section subject to the Muhammadan Law of pre-emption, he cannot avail himself of any pre-emptive right which that law creates only in favour of those who are subject to its behests. And the reason is simple. The rights and obligations created by that law, as indeed by every other system with which I am acquainted, must necessarily be reciprocal. Then, if a Hindu cannot as a pre-emptor avail himself of the Muhammadan Law of pre-emption in a case where the vendor is a Muhammadan and the purchaser is a Hindu, what reason is there for holding that a Muhammadan pre-emptor can enforce the pre-emptive right where the vendor is a Hindu and the purchaser a Muhammadan? The question was discussed by this Court in the Full Bench case of Chundo v. Hakeem Alim-ood-deen N.W.P.H.C. Rep. 1874 p. 28 and the majority of the Court gave an affirmative answer upon a reasoning which must necessarily lead to the conclusion that an affirmative answer should also be given to the proposition which, as I have just stated, can only be answered in the negative. Indeed, the untenability of the proposition, as already pointed out, was not long afterwards enunciated by the majority of the Full Bench of this Court in Dwarka Das v. Husain Bakhsh I.L.R. 1 All. 564 which furnishes an answer in the negative, perfectly consistent with my own view,--an answer which gives full effect to an important portion of the reasoning adopted by Mitter, J., in Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 though it controverts the conclusion at which the learned Judge arrived. He says (p. 147): 'If we decide this case against the Hindu purchaser, and thereby deprive him of a property which has already become his by the law of his country, we must bear in mind that we have already decided that, so far as he is concerned, he will never be able to enforce any right of pre-emption even though a Muhammadan should choose to purchase a part of his family house from one of his co-parceners. So long as this country was under the Muhammadan Government, the right of pre-emption was extended to all classes of persons without any distinction of creed, color or birth, inasmuch as no such distinction was recognized in that respect by the Muhammadan Law, which was in fact the law of the land. Now that the Muhammadan Law has ceased to be the law of the country, it seems to me to be manifestly unjust and inequitable that we should enforce the Muhammadan Law of pre-emption against a Hindu, 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.'
18. I have said enough to show that with a great deal of the reasoning upon which this passage proceeds I entirely concur. But I reject the conclusion, because the necessary steps leading to it are based upon what I may respectfully call fallacies as to the rules of the Muhammadan Law of pre-emption. These I shall presently discuss at some length; but I may here make some observations with reference to the illustration given in the passage, namely, the case of a Hindu co-parcener selling his share in his family-house to a Muhammadan. I should unhesitatingly say in such a case that the sale was subject to the incidents of the Hindu Law which governed the rights of the vendor, that if that law provided a rule of pre-emption, the rule should be enforced against the Muhammadan purchaser, whether his law recognized it or not. In such a case there can be no question of the Muhammadan being deprived of a 'property which has already become his by the laws of his country.' He bought it subject to the rules which governed it in the hands of his vendor, from whom he has derived his title, and the circumstance that he is not a Hindu will not save him from the incidents of the Hindu Law. Indeed, in the case supposed, as the law stands, the Muhammadan purchaser would no doubt be free from a pre-emptive claim at the instance of his Hindu vendor's co-parceners. But he would be free only because the Hindu Law provides no pre-emptive right. He would, however, be liable to something 'worse,' by reason of that law which governed the property in the hands of his vendor. The sale might be avoided at the instance of the Hindu co-parcener, if the subject of the sale was a share in joint property. And if it can be shown that property in the hands of a Muhammadan is in principle as much subject to the pre-emptive claim of his Muhammadan co-parcener or neighbour as the marital estate in the hands of a Hindu widow, or the share of a member of a Hindu joint family, is subject to its own restrictions or qualifications as to sale, it seems to me that the enforcement of the Muhammadan rule of pre-emption against the Hindu purchaser from a Muhammadan would be anything but 'manifestly unjust and inequitable.' And once this proposition is established, it will be obvious that all the exigencies of Mr. Justice Mitter's reasoning, contained in the passage cited, are satisfied by the ratio decidendi in Dwarka Das v. Husain Bakhsh I.L.R. 1 All. 564 wherein the majority of the Full Bench of this Court declined to enforce the Muhammadan rule of pre-emption in a case in which the vendor was a Hindu, although the pre-emptor and the purchaser were both Muhammadans. For if the ratio decidendi of that ruling is correct, the matter stands thus: Property in the hands of a Muhammadan is subject to the pre-emptive claim of his Muhammadan co-parcener or neighbour; property in the hands of a Hindu is not so subject to the Muhammadan rule of pre-emption. The Muhammadan can claim the benefit of the law of preemption. The Hindu cannot claim the benefit of that law. These propositions, which seem to me to be intelligible, consistent, and equitable, would meet all the objections which Mitter, J., contemplated; and, if they are correct, there can be no question of either the Hindu or the Muhammadan being 'deprived' of his right by reason of the law of the other. The pre-emptive rights and obligations between Muhammadan co-parceners and neighbours being mutual, the principle of the maxim qui sentit commodum sentire debetet onus applies, but it would not apply in the case of a Hindu where no such reciprocity exists. And if the Hindu purchaser is to be affected by the Muhammadan pre-emptive claim, it would be on the principle of a cognate maxim that land passes with its burdens, terra transit cum onere, and there would be no violation of the notions of justice, equity, and good conscience.
19. This, however, begs the whole question, and having already supposed the various cases in which it would arise on account of the difference in religion of the partners in a pre-emptive ease, the only case which remains to be conceived is one in which the pre-emptor and the vendor are both Muhammadans, and the only non-Muhammadan among the parties is the vendee. This is the case now before us, and to the question whether the Muhammadan Law of pre-emption is applicable to such a case, my answer is in the affirmative. But because the authority of Sir Barnes Peacock and Mr. Justice Dwarka Nath Mitter demands the highest respect from me, as from every one else connected with the administration of justice in British India, I feel myself bound, in differing with them, to explain my reasons fully by reference to original texts of the Muhammadan Law of pre-emtion, which I cannot help feeling would have led those eminent Judges to a different conclusion had the texts been accessible in the English language. I make this observation because Sir Barnes Peacock at the beginning of his judgment in the celebrated case of Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 used expressions which leave no doubt that, even after the case had been argued before him in the Full Bench, His Lordship was inclined to form an opinion similar to that which I have formed in this case, and that he adopted the opposite view in consequence of the opinion which had been 'so forcibly and clearly expressed by Mr. Justice Mitter.' And because the judgment of that learned Judge in the most exhaustive and powerful manner presents the opposite view to that which I hold in this case, the best way in which I can justify my own opinion is to examine the reasoning leading to the conclusions which he and the majority of the Court adopted in that case.
20. Dealing thus with the question now before us, I may remark, in the first place, that I entirely agree with Mr. Justice Dwarka Nath Mitter in holding that the answer to the question depends upon the nature of the right of pre-emption under the Muhammadan Law. I also concur generally in the following remarks (p. 140): 'If that right is founded on an antecedent defect in the title of the vendor, that is to say, on a legal disability on his part to sell his property to a stranger, without giving an opportunity to his co-parceners and neighbours to purchase in the first instance, those co-parcaners and neighbours are fully entitled to ask the Hindu purchaser to surrender the property, for although as a Hindu he is not necessarily bound by the Muhammadan Law, he was at any rate bound by the rule of justice, equity, and good conscience, to inquire into the title of his vendor; and that very rule also requires that we should not permit him to retain a property which his vendor had no power to sell. If, on the contrary, it can be shown that there was no such defect in the title of the vendor, or in other words, that he was under no such disability, even under the Muhammadan Law itself, it would follow, as a matter of course, that there was no defect in the title of the purchaser at the time of its creation. Further on he says : 'Now, so far as I can Judge of the Muhmmadan Law of pre-emption from the materials within my reach, it appears to me perfectly clear that a right of pre-emption is nothing more than a mere right of repurchase, not from the vendor, but from the vendee, who is treated for all interests and purposes as the full legal owner of the property which is the subject-matter of that right.' In this passage, Mitter, J. referred to the materials upon which he based his conclusion, and he proceeds to quote passages from those materials. On this point I have to say that those materials appear to me to be in several respects inadequate. They are to be found in the Hedaya, or rather in the translation of the Hedaya made by Mr. Hamilton about a century ago, under the orders of the Governor-General, Warren Hastings. It was not, however, a translation of the original Arabic text, but of a Persian translation. For that work gratitude is due to Mr. Hamilton, but at the same time I am afraid it has been sometimes the source of mistakes by our Courts in the administration of the Muhammadan Law. Mitter, J. says that he is satisfied by certain passages in this work, that the conclusions at which he arrived were consistent with the Muhammadan Law of pre-emption. I need not quote any more passages from the learned judgment, as I purpose to analyse all the main arguments adopted by the majority--Peacock, C.J., Kemp and Mitter, JJ. The first proposition which those learned Judges laid down was, that the right of preemption under the Muhammadan Law does not exist, before actual sale, because, on the one hand, the pre-emptor has no right of prohibiting the sale, and, on the other hand, the vendor is not bound to offer the property for purchase to the pre-emptor before selling it to the stranger; and they held their view to be supported by the circumstance that the pre-emptor cannot before such sale relinquish his pre-emptive right, nor could the absence of his consent vitiate the sale. Upon this reasoning they held that a Muhammadan owner of property was subject to no legal disability arising out of pre-emption, but was free to sell it regardless of that right. They then proceeded to lay down the second main proposition that a sale, in respect of which pre-emption might be claimed, passed full ownership to the vendee, and did not involve ' any defect of title,' because it could not be regarded as an infringement of a pre-existing pre-emptive right. From this the learned Judges concluded that the right of pre-emption under the Muhammadan Law was ' a mere right of repurchase, not from the vendor, but from the vendee,' which right could not be enforced by a Muhammadan pre-emptor against a Hindu vendee, because the property, even in the hands of the-Muhammadan vendor, not being subject to the pre-emptive right at the time when the title of the Hindu vendee was created by the sale, the right could not run with the land, nor follow it in the hands of a stranger not subject to the Muhammadan Law. These are the main conclusions at which the learned Judges arrived, and the rest of their reasoning seeks to support those conclusions by the argument that, under the Muhammadan Law, the right of pre-emption is a right 'feeble' and 'defective,' because, according to the rules of that law, it can be easily defeated by devices which Mitter, J., designated as 'tricks and artifices.'
21. I believe in giving this analysis I have exhausted all the arguments which the learned Judges employed in arriving at the view to which I am opposed. But if it can be shown from the original texts of the Muhammadan Law itself that the main propositions upon which the whole argument proceeds are in themselves erroneous, I think I shall have justified my view. First, then, as to the nature of the right. I remember the salutary warning of the Roman Jurist Javolenus (whom CEEASY, C.J., has quoted in his work on International Law), that the task of laying down definitions is not only ' the most laborious, but also the most perilous.' The exigencies of this case, however, require that I should endeavor to define the right of pre-emption as prescribed by the Muhammadan Law; and I think I am strictly within the authorities of taht law when I say that pre-emption is a right which the owner of certain immoveable property possesses, as such, for the quiet enjoyment of that immoveable property, to obtain, in substitution for the buyer, proprietary possession of certain other immoveable property, not his own, on such terms as those, on which such latter immoveable property is sold to another person. I could easily support every word of this definition by original Arabic texts of the Muhammadan Law itself, but I will confine myself only to such texts as bear immediately upon the main propositions involved in this case. I may, however, observe that the nature of the right, as appears from the definition which I have given, partakes strongly of the nature of an easement--the 'dominant tenement' and the 'servant tenement' of the law of easement being terms extremely analogous to what I may respectively call the 'pre-emptive tenement' and 'pre-emptional tenement' of the Muhammadan Law of pre-emption. Indeed, the analogy goes further, for I shall presently show that the right of pre-emption, like an easement, exists before the injury to that right can give birth to a cause of action for a suit--sale in the one case corresponding to the invasion of the easement in the other. In short, I maintain that, under the Muhammadan Law, the rule of pre-emption, proceeding upon a principle analogous to the maxim sic utere tuo ut alienum non leadas, creates what I may call a legal servitude running with the land; and the fact that that law has ceased to become the general law of the land cannot alter the nature of the servitude, but only render its enforcement dependent upon the religion of the party who claims the servitude and of the party who owns the property subject to that servitude.
22. Now, the main authority upon which the learned Judges relied for the view that the right of pre-emption does not exist before sale, is a passage in Mr. Hamilton's Hedaya to be found at p. 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-emptor taking it (the house) when the seller acknowledges the sale, although the buyer contradicts him.' 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 seems to me to have misled Mitter, J., and the 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 Sheik Rudratulla's case might possibly have arrived at a very different conclusion. It is unnecessary to quote any more passages from the original Arabic text of the Hedaya, which distinctly go to show that the cause 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 existence 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 other books as high in authority as the Hedaya itself. Here is a short text from the Durrul-Mukhtar: 'The cause of pre-emption is the contiguousness of the pre-emptor's property with the purchased property, whether by co-parcenership or vicinage.' (1) Again, a more explicit passage is to be found in Ami, a commentary upon the Kanz: 'The author (of the Kanz) says 'by sale,' which must be referred to his expression, ' pre-emption becomes obligatory.' This would indicate that the cause of the obligator ness of pre-emption is sale, that is the sale of the pre-emptional house, and some have held this very opinion. The correct opinion, however, is that the cause of pre-emption is the conjunction of the properties in a necessary manner, and sale is a condition (of pre-emption). From this it follows that pre-emption becomes enforceable by sale, that is, after its coming into existence.' (2) All the different views on the subject entertained by Muhammadan jurists, who were only too fond of the mediaeval schoolmen's method of arguing such questions, are to be found in Birjandi, a well-known commentary on the Muhammadan Law: 'Be it known that the language of the author implies that the cause of the obligatorness of pre-emption is the conjunction of the pre-emptor's property with the subject of the sale in some way or other, and this is the opinion adopted by the Mashaikhs (elders) in general. Khassaf says that pre-emption becomes enforceable by sale, then by demand, and therefore both become the cause; but as to this it may be said that when pre-emption is established by sale, there is no meaning in establishing it a second time by demand. Sheikh Abubakr Razi used to maintain that pre-emption becomes enforceable by sale, the right of taking possession is established by demand, and ownership (of the pre-emptor) is established either by decree or by mutual consent. Sheikh-ul-Islam held that co-partnership, together with sale; constitutes the reason of the enforceability of pre-emption, and it is emphasized by demand, and ownership is established either by decree or by mutual consent, and so it is laid down in the zakhira.' (1) These texts leave no doubt in my mind that the 'cause' or foundation of pre-emption is 'conjunction' of the pre-emptor's property with that of the vendor, and, inasmuch as such conjunction existed before the sale, it follows that the pre-emptive right originates antecedently to the sale in respect of which it may be exercised. For example, when two Muhammadans own shares in a house, the share of each may in turn be regarded as dominant or servant to the other for purposes of preemption, because the conjunction of the properties of the two owners being a circumstance common to both, alternately entitles the other to claim preemption when the proper occasion arises, that is, when either transfers his share by sale. The analogy of a non-apparent easement again suggests itself. It is true, as Mitter, J. says, that neither can prevent the other from selling his share to whomsoever he pleases, because the Muhammadan Law ' nowhere recognizes any right of veto in the pre-emptor,'nor does it impose any 'positive legal disability' on the vendor in this respect. This, no doubt, at first sight suggests a distinction in principle between pre-emption and non-apparent easement, such as a right annexed to A's house to prevent B from building on his own land. But the distinction, so far as the question of the origin of right is concerned, is in reality not one of principle, but of detail, arising from the difference in the nature of the occasion demanding the exercise of the right. In the one case, that occasion is sale; in the other, it is building. Now, it is true that in the one case the pre-emptor cannot prevent his co-parcener from selling his property to a stranger, whilst in the case supposed, A could prevent B from building, on his land. But the reason of the distinction is not that the right of the one did not exist before the sale, and the right of the other did exist before the building. The reason is this. The object of the non-apparent easement possessed by A is the beneficial enjoyment of his own property, and definite infringement of that right is ascertained when B takes any definite action to build upon his land,--a state of things which would be sufficient to afford a cause of action in favour of A, seeking preventive relief or other assertion of his right of easement. But in the case of pre-emption, the object of the right is to prevent the intrusion, not of all purchasers in general, but only of such as are objectionable from the pre-emptor's point of view. Again, the right (unlike the right of veto possessed by members of a joint Hindu family with respect to the sale of his share by any one of them) is not free from definite qualifications, among which the most important is that the pre-emptor complaining of the intrusion of the purchaser should place himself absolutely in the position of the purchaser with reference to the terms of the contract of sale, such as the amount and payment of the price, &c.; It is obvious, then, that before a pre-emptor can make up his mind to assert his pre-emptive right, he must, ex necessitate rei, know definitely who the purchaser is, and under what terms he has purchased the property, because it may well be that, on the one hand, he may have no objection to such purchaser, and on the other hand, even if he does object, he may not be in a position to pay the price which the purchaser has paid. No such considerations exist in the case of the right of easement which I have supposed by way of illustration. And it follows that before a sale is actually completed, the pre-emptor is not ex necessitate rei, in a position to have definite information as to whether the proper occasion has arisen for the exercise of his already existing pre-emptive right. This is the reason why the law gives him no right of vetoing the sale. But the reason falls far short of showing that his right of pre-emption was wholly nonexistent at the time of the sale, when the title of the purchaser was created. From what I have already said, it is perfectly clear to me that any action on the part of the pre-emptor before the sale would be premature, whether such action consisted of vetoing or consenting to a sale which has not yet been effected, and of which the terms and the purchaser have not yet been ascertained, in the sense of creating the legal rights and obligations which render a sale an accomplished fact in 'law. I have already said that, unlike the veto possessed by a member of a joint Hindu family, the right of preemption does not prohibit sale in general regardless of the purchaser, of the amount of the price, and other terms of the contract of sale; and because the right is in its very nature incapable of being asserted or exercised till these matters are definitely ascertained, it follows that a sale, irrespective of the pre-emptor's consent, is not void in law. The pre-emptive right may or may not be asserted or enforced; and it would be absurd to say that that which is only possible should, by a retrospective effect, vitiate that which is certain, namely the sale. This is the manner in which the jurists of the Muhammadan Law have dealt with this point of the rule of preemption, and it is upon very similar grounds that they hold the pre-emptor incapable of relinquishing his pre-emptive right in respect of a sale which has not yet taken place. They would say (and there is ample authority for this statement) that the identity of the purchaser, the amount of the price, and other terms of the sale, the certainty of which is essential, not to the existence, but to the exercise of the pre-emptive right, being still undefined by a legal relation between the vendor and the vendee, the pre-emptor had no means of knowing for certain whether he should or should not give up an ascertained legal right, and therefore the relinquishment of pre-emption before sale is void. 'Whatever the merits of this reasoning from a jurisprudential point of view may be, I confess I fail to see how it supports the view that the right of pre-emption does not exist as a restriction or qualification of the right of sale possessed by the owner of property subject to pre-emption. It is indeed not an absolutely unqualified disability, for it does not absolutely prohibit sale without the consent of the pre-emptor. But that it amounts to a qualified disability, distinctly operating in derogation of the vendor's absolute right to sell the property, and thus affects his title, which would otherwise amount to absolute dominion, cannot, in my opinion, be doubted. That the results of such restrictions or qualifications are dependent for their enforcement upon the occurrence of the actual sale, is a circumstance which, in my opinion, does not affect the question relating to the inception of the right of pre-emption.
23. But, in opposition to this view, Mitter, J., and the learned Judges who concurred with him, relied upon the argument that 'there is nothing whatever in the Mahammadan Law which imposes upon any one the obligation of making the first offer to his neighbour, nor is there anything to show that the right of pre-emption is based upon any such obligation, the non-fulfillment of which would prevent the stranger from acquiring a complete and valid title to the property by virtue of his purchase.' In dealing with this argument, I must, in the first place, observe that one of the greatest difficulties in the administration of the Muhammadan Law, as indeed of all ancient systems, lies in distinguishing moral from legal obligations. The Mahammadan 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 Kanx, 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 Jabir 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 any one 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) Two other traditions to the same effect are also to be found in Muslim, which is one of the books of acknowledged authority on Hadis or traditions. I will, however, quote only one of them, as it brings into prominence the difficulty 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 or reject it; and if the vendor fails to do this, his co-parcener has the preferential right to it until he is informed.' (2) Both these traditions have much the same effect, but in the first of them the Arabic word la yahillo occurs, which I have rendered by ' not lawful;' whilst in the second the phrase employed is la yasliho, which I have translated as meaning 'not proper.' The importance which the Muhammadan jurists, in laying down legal principles, attached to the exact words in the sayings of the Prophet, at once gave rise to the question whether the injunction as to the vendor's giving notice to the pre-emptor and offering to him the property for purchase, was a mere moral behest or created a legal obligation. I have already shown how Muhammadan jurists dealt with the right of pre-emption, and the method of arguing which they adopted had no doubt considerable influence in the interpretation of these two traditions. The difference of phraseology which I have already indicated, enabled them to put such an interpretation as would render the traditions consistent with the rule that the absence of the pre-emptor's consent does not vitiate the sale--the rule which had been unanimously adopted by the jurists. This is best shown by Nawawi, a celebrated commentary on Muslim, in which these traditions occur. 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 propriety of giving notice and to the objection ableness of sale before such notice--an objection ableness 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 (sayings 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 objectionable' is that the rejection of which prevails (over its adoption) ' (1)
24. It is not necessary to pursue any further the syllogistic manner in which such questions were dealt with by Muhammadan jurists. I may, however, say that the ultimate reason which prevented them from interpreting these traditions in the sense of creating a legal obligation imposed upon the vendor was, that the language of the tradition being capable of two interpretations, they adopted the more lenient one, acting upon the presumption that a legal obligation does not exist till expressly provided, and that all contracts are lawful unless expressly prohibited by law. The law, therefore, as it stands, does not oblige the vendor to give notice of the projected sale to the pre-emptor, nor does it vitiate a sale executed without his permission. I am not at liberty to interpret the sayings of the Prophet in a sense other than that adopted by the recognized authorities on Muhmmadan jurisprudence. But it is perfectly clear from these traditions that the very conception of pre-emption in Muhammadan Law necessarily involves the existence of the right before the sale in respect of which it may be exercised. All that the interpretation of the Muhammadan jurists' goes to show is, that the sale is not vitiated by the absence of the pre-emptor's consent--an interpretation which, whilst it is perfectly consistent with the rest of their method of reasoning in dealing with pre-emption, again falls short of establishing the proposition that the right is not antecedent in existence to the sale complained of by the pre-emptors.
25. I have now to deal with the argument that the right of pre-emption under the Muhammadan Law is 'a mere right of re-purchase, not from the vendor, but from the vendee.' I trust what I have already said goes far to show that this conclusion cannot be right. If by the expression 're-purchase' is meant the institution of a new contract of sale other than that entered into by the vendor and the vendee, the hypothesis becomes obviously erroneous, because the entire argument, that the vendor of a pre-emptional tenement conveys an absolute ownership to the vendee unhampered by any defect of title arising out of pre-emption, applies as much to a Muhammadan as to a Hindu vendee. And if the right of pre-emption is only a right of re-purchase, and if the right is to be enforced, not as a rule of law, but only by reason of the rule of justice, equity, and good conscience, I fail to see, even in a case where all the parties are Muhammadans, where the equity lies in forcing a man to sell that which-is absolutely his own to a man who had no right in connection with it at the time when the title of the vendee was created. Equity is higher than the considerations of race and creed, nor will it allow parties to impose upon each other rules not sanctioned by the law. And if its rules prohibit a Hindu purchaser from being deprived of property of which he is the absolute owner, that same rule should, by ordinary legal analogy, benefit also a Muhammadan purchaser of property whose title is, ex hypothesi, as absolute and as free from defect as that of the Hindu vendee. Further, if pre-emption is only a right of 'repurchase' from the vendee who, ex hypothesi, has, under the sale, derived an absolute title, unhampered by the pre-emptive right, there is no reason which would prevent the vendee from insisting that the terms of the new sale should be other than those under which he himself purchased. That this would be the necessary consequence of the hypothesis, seems to me to be as clear as the-proposition that every absolute owner is at full liberty to sell or not to sell his property, and that if he chooses to sell it, he can make his own terms as to the bargain of sale. That such a result is not only not warranted by the. Muhammadan Law of pre-emption, but would positively strike at the very root of the right itself, seems to me to be too obvious to require any explanation. But the Muhammadan Law of pre-emption involves no such anomalous inconsistencies of reasoning, because the right of pre-emption is not a right of re-purchase' either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is, in effect, as if in a sale-deed the vendee's name were rubbed out and the pre-emptor's name inserted in its place. Otherwise, because every sale of a pre-emptional tenement renders the right of pre-emption enforceable in respect thereto, every successful pre-emptor obtaining possession of the property, by the so-called 're-purchase' from the vendee, would be subject to another pre-emptive claim, dating, not from the original sale, but from such 're-purchase'--a state of things most easily conceivable where the new claimant is a pre-emptor of a higher degree than the pre-emptor who has already succeeded. The result would be that pre-emptive litigation could never end.
26. I could go on at much greater length to show that the hypothesis that preemption is only 'a right of re-purchase from the vendee,' would involve even greater anomalies inconsistent with the fundamental rules of the right of preemption. But I need not pursue the argument any further, because it seems tome that the general principles of jurisprudence suggest the same conclusions as those at which I have arrived. I take it as a fundamental principle that no state of things can give rise to cause of action, such as can be sued upon in a Court of justice, unless there is a right and an infringement of that right-- the right being necessarily antecedent to the injury. My conceptions of jurisprudence prevent me from conceiving any kind of right of which both the inception and the infringement depend upon one and the same incident. And it would be absurd to conceive a right of which the infringement takes place before the inception of the right itself. And if I am right so far, how would the right of pre-emption stand these tests, if it be taken not to exist before the sale in respect of which it is to be exercised? The injury to the right is the intrusion of a stranger under a sale, and the whole object of the right is to prevent such intrusion. And how could such intrusion be legally prevented if the right did not exist before the intrusion? Similar difficulties will arise if it be assumed that the point of the inception of the pre-emptive right is not sale but 'talab,' that is, demand of pre-emption by the pre-emptor. There can be no legal demand of a right which does not exist, nor could refusal by the vendee to surrender the pre-emotional property constitute any legal injury where no legal right existed.
27. But apart from the reasoning suggested by the analogy of jurisprudential conceptions, it seems to me that, if it is once conceded that the sole object of the pre-emptive right is to prevent the intrusion of strangers objectionable to the pre-emptor, it follows, I should say as a matter of ' common sense,' that if a Muhammadan pre-emptor can by the exercise of his pre-emptive right prevent the intrusion of another Muhammadan, he should, a fortiori, be able to do so in the case of a purchaser who belongs to a different race and creed, for, caeteris paribus, it may be taken that a non-Muhammadan purchaser under such conditions would be more objectionable to the Muhammadan pre-emptor, and would demand a more strenuous exercise of the pre-emptive right.
28. Besides these arguments there is much on the subject of conflict of laws in the judgments delivered by Norman and Macpherson, JJ., in Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 which I might adopt in support of my view. But it is unnecessary to repeat the arguments which those learned Judges have already expressed with such force and lucidity. It, however, remains for me to deal with the reasoning adopted by Mitter J., as to pre-emption being a right 'feeble and defective,'because, on the one hand, it is lost if not immediately asserted, and, on the other hand, it can be defeated by 'tricks and artifices.' If 'feeble and defective' only means that the right of pre-emptor is transitory in the sense of requiring immediate assertion, I can understand the phrase. But I do not understand how the transitory character of the right can affect the question whether or not it should be enforced against a Muhammadan vendee and not against a non-Muhammadan. So far as this particular point is concerned, it seems enough to say that, if the right is legally enforceable against the one, it should be enforceable against the other. On the other hand, in one sense, full ownership itself may be called transitory, because if A, being the owner of X, allows B to sell it to C, A being present at the time of the sale, his mission to assert his title to X would, in effect, by the doctrine of estoppel, defeat his right in X. Pre-emption is feeble in a sense not dissimilar in principle to the illustration which I have given. The object of the Muhammadan Law in rendering the immediate demand of pre-emption a condition precedent to the exercise of the right, is to render it obligatory upon the pre-emptor to give the earliest possible notice to the vendee not to rely upon his purchase for making improvements, &c;, or otherwise dealing with the purchased property. The rule is a very salutary restriction of right, which might otherwise be very capriciously enforced under a system of law which recognized no rule as to the limitation period for enforcing claims. Indeed, the rule rests much upon the same considerations as the doctrine of 'notice' and the principle of acquiescence amounting to estoppel in equity jurisprudence. But such restrictions do not derogate from the right of pre-emption any more than another equitable rule of the same right, that the pre-emptor, in enforcing his right, cannot break up the bargain of sale by pre-empting only a portion of the property sold to one purchaser. The law of pre-emption is full of equitable considerations of this nature, but it is scarcely necessary to pursue the argument any further.
29. This brings me to the last point. Considerable portions of the judgments in Sheikh Kudratulla's case are devoted to showing that the right of pre-emption can be defeated by what Mitter, J., calls 'tricks and artifices,' which Peacock, C.J., held are recognized and allowed by Muhammadan Law; and from this it is inferred (though I confess, with due respect, I am not able to follow the reasoning) that the right is not enforceable against a Hindu purchaser, though enforceable against a Muhammadan. If any question of the ' tricks and artifices ' referred to were involved in this case, I should have a good deal to say on the subject, but here I need only say once more that in dealing with questions of Muhammadan Law, the distinction between moral behests and legal duties on the one hand, and between rules of substantive law and procedure on the other, must always be borne in mind. And I think I may safely say that most if not all the notions about the efficacy of these ' tricks and devices 'arise from overlooking these distinctions. Peacock, C.J., says (p. 173): 'The Muhammadan Law, as has been already shown by Mr. Justice Kemp and Mr. Justice Mitter admits of all kinds of devices for the purpose of frustrating its own law. If there is a bond fide sale between a Muhammadan vendor and a Hindu purchaser, and they come forward and declare that which is not true, and say that it was not a sale intended to operate, but was a fictitious device, their words must be accepted according to the Muhammadan Law, and the truth of the assertion cannot be disputed. They would be bound by the untruth which the vendor and the purchaser declare for the purpose of evading the right of pre-emption. Can we say that if they will state an untruth, the Hindu shall remain in possession of the property which he has purchased; but if they will not declare that which is untrue, there is an equity to take the property away from the purchaser.' The argument is consistent with certain passages in the text-books, which His Lordship went on to cite. But without attempting to explain the real reasons upon which those passages proceed, the argument may be fully answered by saying that in the case supposed, the question whether there has been a bond fide sale or not is not a question of substantive law, but a mere question of fact, to be ascertained by the rules of that department of procedure which consists of the rules of evidence; and that we are no more bound to follow the Muhammadan Law of evidence in a pre-emptive suit than in a suit involving questions of succession or inheritance. The Muhammadan law of evidence, like other old systems, contains numerous rules which arose either from imperfect notions as to the distinction between the weight and admissibility of evidence, or from the rules of procedure, or from the political exigencies of the Muhammadan people, when those sales were formulated. The rule whether upon any particular point in a preemptive suit the statement of the pre-emptor, the vendor or the vendee is to be believed, is an illustration of the former part of this proposition, and the latter part may be exemplified by the disability imposed upon non-Muhammadans to give evidence against a Muhammadan in a Court of Justice, the reason being stated to be 'that they have no power or authority over the Moslems, and are suspected of inventing falsehoods against them.' But the Muhammadan law of evidence is not the law of British India, and, whatever force the argument of Peacock, C.J., might have had in 1869, when his judgment was delivered, it can have no application now. For if it was intended as an enunciation of the Muhammadan law of evidence, since that time a Code of Evidence has been passed providing its own rules for ascertaining facts, and Section 2 of the enactment (Act I of 1872) has abolished all other rules of evidence. Similarly, it will be found upon close examination of the other devices to defeat pre-emption, referred to in the Hedaya and in Bailie's Digest, on which the learned Judges of the Calcutta Court relied, that they owe their origin to extremely technical rules of the Muhammadan Law of contract, procedure or evidence, in none of which departments of law are we bound by those technicalities. The Muhammadan substantive law, in matters governed by it, cannot, of course, be administered without ascertaining the facts to which it is to be applied. But how those facts are to be ascertained, is a matter relating to the remedy, ad litis ordinationem, for which the Courts in British India have their own rules. And there is in principle no more reason for saying that in a pre-emptive suit the questions, whether a valid bond fide sale has taken place or not, and if so, for what price, are governed by the Muhammadan Law, than there would be for saying that when a decree is passed under the Muhammadan Law for dower or inheritance, the process for executing that decree is to be regulated by the rules of procedure provided by that law. And, speaking generally, I may say that if it is once conceded that the technicalities of the Muhammadan Law of contract, procedure or evidence, are not binding upon us, it will be found that no ' tricks and artifices 'can defeat the pre-emptive right in our Courts. Such devices are held to be 'abominable' even where the technicalities of Muhammadan adjective law might give them some plausible effect; and this is the prevalent doctrine, notwithstanding the opinion of Kazi Abu Yusuf, to be found in the passage from the Bedaya, to which Kemp, J., has referred. The opinion of Imam Muhammad, given in that same passage, condemns all devices; but there being no such questions in this case, I need not discuss the matter any further. But I wish to add that I have considered it my duty to deal with this reference at such elaborate length, not only out of respect for the eminent authorities with whom I have ventured to differ in arriving at my conclusions, but also 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 its importance by confirming it as an incident of the proprietary tenure. Moreover, the right, though it no doubt operates as a restriction of the principle of free sale, and thus tends to diminish the market-value of property, must have enough to recommend itself, for even in some of the most civilized parts of Germany, a similar right (retract-recht) is still maintained, either as a custom or as a rule of law. And if such is the case in a country where distinctions of race, caste, or creed do not prevail, it seems to me that the right must not be lightly dealt with in a country like India, where the population presents quite the opposite state of things, and where the intrusion of a stranger as a co-sharer must not only give rise to inconvenience, but disturb domestic comfort, if not, as in some cases, lead to breach of the public peace.
30. My answer to this reference is in the affirmative.
31. The answer should be in the affirmative. I concur in the opinion expressed in the case in Chundo v. Hakeem Alim-ood-deen N.W.P.H.C. Rep. 1874 p. 28 by the majority of this Court, that by the provisions of Section 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 Mubammadans, and has always been administered as between them in claims for pre-emption. Muhammadans 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, merely 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. Mahomed Hossein Khan N.W.P.H.C. Rep. 1875 p. 147 my decision followed the Full Bench ruling in Chundo v. Hakeem Alim-ood-deen N.W.P.H.C. Rep. 1874 p. 28 by which I felt myself bound.
33. 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 Muhammadans 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.