Tudball and Sulaiman, JJ.
1. This is a defendant's appeal arising out of a suit for pre-emption of a house sold by a Hindu vendor. The claim was based on an alleged custom embodying the rules of Muhammadan law. The plaintiffs are shafi khalit as well as shafi-jar of the vendor; and the vendees are shafi khalit. Thus the plaintiffs and the vendees both come in the second class, and the plaintiffs also come in the third class of pre-emptors. The court of first instance framed seven issues, but dismissed the claim on the sole ground that both the plaintiffs and the vendees being of equal status the suit was not maintainable. The lower appellate court, relying on the case of Amir Hasan v. Rahim Bakhsh (1897) I.L.R. 19 All. 466, was of opinion that that ground was insufficient for the dismissal of the whole suit, and remanded the case for disposal of the other issues. The defendants have come up in appeal to this Court and challenge the finding of the lower appellate court. The plaintiffs have filed cross-objections and urge that they have a preferential right as against the defendants.
2. The cross-objections can be disposed of at once. The plaintiffs and the vendees both come in the second class as shafi khalit. The fact that the plaintiffs are also shaft-jar and come in the third class cannot give them any preferential right over the defendants. The cross-objections are, therefore, without any force, and the whole suit cannot be decreed.
3. As to the appeal the position is this. Neither of the courts below have found whether any custom of pre-emption exists or what that custom is. We do not know whether under such a custom the whole of the Muhammadan law is applicable or not. As the incidents of this alleged custom have not yet been found, we must assume in favour of the plaintiffs that the whole of the Muhammadan law applies, though of course when facts have be gone into this may not necessarily be the case.
4. In two very old cases, viz., Baboo Moheshee Lal v. G. Christian (1866) 6 W.R. C.R. 250 and Teeka Dharee Singh v. Mohur Singh (1867) 7 W.R. C.R. 260, it was held that under the Muhammadan law the right of pre-emption did not arise in case of a purchase by a person who is himself a pre-emptor of the same class as the plaintiff. No original authorities appear to have been cited before the court. These cases were followed in the Full Bench case of Lalla Nowbut Lall v. Lalla Jewan Lall (1878) I.L.R. 4 Calc. 831, where a passage bearing on this point in the Hedaya, Book 38, Chapter I, was explained away by saying that it had been misunderstood.
5. In the case of Amir Hasan v. Rahim Bakhsh (1897) I.L.R. 19 All. 466 this Court, having had the advantage of seeing some original authorities cited by Mr. Karamat Husain, counsel for the appellant, went into the question at great length and dissented from the Calcutta view. This case was followed and its principle was even extended in the case of Abdullah v. Amanat-ullah (1899) I.L.R. 21 All. 292.
6. The disputed passage in the Hedaya is certainly ambiguous, and, therefore, inconclusive. But the other authorities quoted in Amir Hasan's case, specially the Radd-ul-Mukhtar (also known as 'Shami') and the Fatawa Alamgiri, both of which are most exhaustive and authoritative works on Hanafi Law, leave no doubt in the matter. Two more texts in the Fatawa Alamgiri, which are not quoted in that judgment, are clearer still. In volume IV, Chapter 2, it is quoted from Mohit Sarkhasi that if there are four co-sharers in a house and one co-sharer purchases the shares of two co-sharers, one after the other, and then the fourth co-sharer appears, he can share as pre-emptor in both the shares. In volume IV, Chapter 6, it is stated on the authority of Sharah Tahtawi that if a person who is a pre-emptor purchases a house and then comes another person who, like him, is a pre-emptor, the Qazi shall decree half the house in his favour; if, however, the second pre-emptor has a superior status, then the whole house will be decreed to him, but if he is of an inferior status, then he can got nothing by pre-emption.
7. The prevention of the inconvenience which may result from the introduction of a disagreeable stranger is not the only object of the rule of pre-emption, as was supposed by Garth, C.J., in Lalla Nowbut Lall v. Lalla Jewan Lall (1878) I.L.R. 4 Calc. 831. The rule is also based on the ground that all pre-emptors having equal rights against a stranger, their rights are the same inter se, and one pre-emptor cannot steal a march on the others by taking a purchase behind their backs.
8. The court of first instance has relied on the case of Baldeo v. Badri Nath (1909) I.L.R. 31 All. 519, where the plaintiff and the defendant having been found to be of equal status the whole suit was dismissed, A perusal of the notes of argument and the judgment in that case will, however, show that the point which arises in this case was neither raised nor argued there. The attention of the learned Judges was not even drawn to the previous case of Amir Hasan v. Rahim Bakhsh (1897) I.L.R. 19 All. 466, They only decided the point that was raised before them, and cannot by implication be taken to have dissented from the well-considered view expressed in the earlier case.
9. We think that on the authorities, which are in conformity with the enunciations of Muhammadan jurists, the view of the court below is correct. We accordingly dismiss the appeal with costs.
10. The cross-objections are likewise dismissed with costs.