1. This second appeal has been preferred against an appellate decree declaring a right of pre-emption under the Mahomedan Law of Shafa. The facts found may, for present purposes, be thus succinctly stated.
2. The right is claimed by one Sonaullah in respect of the share of a jote which his co-sharer, Ansaruddi, has sold to an outsider, Budhai. Sometime previously Ansaruddi had offered to sell the share to Sonaullah and Sonaullah had refused to buy. But when, precisely, this offer was made, and what were its terms, do not appear. After Sonaullah's refusal Ansaruddi, on the 14th December, 1907, executed a kobala conveying the share to Budhai for Rs. 300; but no consideration passed then, and there was no delivery of possession. Having become aware of the execution of Budhai's kobala, Sonaullah approached Ansaruddi on the 23rd December and obtained another kobala purporting to transfer the share to him for Rs. 400. The latter transaction fell through owing to Sonaullah's failure to produce the purchase-money at the time of registration; but the transfer to Budhai was completed by the payment of the consideration by Budhai and the registration of his kobala on the 3rd of the following January. Of this completion Sonaullah heard on the 6th January, and he thereupon duly performed the ceremonies prescribed by Mahomedan law, and eventually brought the present suit to enforce his right.
3. The Court of first instance held that Sonaulla had forfeited the right, first, by his initial refusal to purchase the share, and, secondly, by his failure to pay the purchase money stipulated for in the kobala executed in his favour on the 23rd December. The lower Appellate Court has reversed this decision and decreed the suit, holding that Sonaullah's right of pre-emption did not accrue until the transfer to Budhai had been completed by the registration of Budhai's kobala on the 3rd January, and that, therefore, Sonaullah could not have lost it by anything done, or omitted, by him prior to that date.
4. In so far as the earlier offer and refusal are concerned, there seems to me to be no difficulty in accepting the Subordinate Judge's view. The appellants rely on Torul Komhar v. Achhee (1872) 18 W.R. 401 and Kooldeep Singh v. Ramdeen Singh (1875) 24 W.R. 198. In the former case it was held that, where a pre-emptor, on being asked as such to purchase, deliberately refuses to exercise his right of pre-emption, he cannot be allowed, on the incidental rule of Mahomedan law that the pre-emptor's title to purchase is not extinguished until the property has actually passed, to take the property away from a third party, who has purchased after having satisfied himself by careful enquiry that there is no other impediment. In the latter case it was laid down that a party must be deemed to waive his right of pre-emption when he declines the seller's offer and the property is afterwards sold to another with his knowledge. But the facts connected with these cases are not fully reported; the facts relating to the present case are, as I have already stated, but imperfectly known; and it is impossible to say whether the rulings referred to are or are not applicable. Moreover, these rulings are not consistent with the decision of the Full Bench of this Court in Gurdial Mundar v. Teknarayan Singh (1865) B.L.R. Sup. Vol. 166; 2 W.R. 215 or with the views expressed in Ladun v. Bhyro Ram (1867) 8 W.R. 255 Soondur Kooer v. Lalla Rughoobur Dyal (1868) 10 W.R. 246 and Jehangir Baksh v. Lala Bhikari Lal (1869) 6 R.L.R. 42 note. On principle, too, it would seem that the right cannot arise until there has been a sale to a third party; for the right of Shafa recognised by the Mahomedan law is not the right of pre-emption known to the Roman law, that is to say, the right arising out of an obligation on the part of an intending vendor to sell preferentially to the obligor if he offers as good conditions as any intended vendee, but rather the obligation attached to a particular status, which binds the purchaser from the person obliged to hand over the subject-matter to the other party to the obligation, on receiving the price paid by him for it. And all the authorities appear to be clear on the point that the right accrues only when the property has passed from the original owner to a purchaser.
5. There remains the question whether Sonaullah lost his right of pre-emption by the course he took on the 23rd December, when he had become aware of the execution of the kobala of the 14th in favour of Budhai and, instead of proceeding to perform the preliminary ceremonies of talab i-mowasibat and talab-i-ishtishad, entered into rival negotiations for the conveyance of the share to himself as an ordinary purchaser. The answer to this depends on whether Sonaulla's right arose when he heard of the execution of Budhai's kobala, which was, under the Mahomedan law, sufficient to pass the share to Budhai, or not until it came to his knowledge that the registration required by the general law to complete the transfer had been effected. For, so far as I can see, there is nothing in the facts found in this connection, to raise any issue as to either estoppel or waiver.
6. The point whether or not the Mahomedan law, pure and undiluted, is to be applied is one of considerable difficulty. It would seem from the judgment in Nazimunnissa v. Ajaib Ali Khan (1900) I.L.R. 22 All. 343 to be accepted in the United Provinces, where cases of pre-emption are much more frequent than in the Lower Provinces of Bengal, as settled by the rulings of the Full Bench of the Allahabad High Court in Janki v. Girijadat (1885) I.L.R. 7 All. 482 and Begam v. Muhammad Yakub (1894) I.L.R. 16 All. 344 that, in considering whether a right of pre-emption has arisen, the Courts should apply the Mahomedan law alone and hold that, if and as soon as there is a complete sale under that law, although not under the general law, the right has accrued. But in one of the Full Bench cases referred to, Mr. Justice Mahmood raised a dissentient voice; in the other Mr. Justice Banerjee also differed from his brother Judges; and in each the agreement for sale had been followed by delivery of possession as well as payment of consideration, In Jadu Lal Saha v. Janki Koer (1908) I.L.R. 35 Calc. 575 this Court has recently referred to the difficulties that are likely to arise in applying the principle that, for the purposes of pre-emption, it is necessary to follow the Mahomedan law relating to sale, and refused to extend the Allahabad rulings to a case, such as this in which there had been neither payment nor delivery of possession. And I confess that the weight of principle and logic seems to me to be on the side of the contention that the general law, which is paramount and has superseded the Mahomedan law should govern the incidents of sale in applying the law of pre-emption.
7. On one point there seems to be absolute unanimity, and it will be well to take it as the starting point. At he foundation of the Mahomedan law on the subject lies the entire cessation of all right on the part of the original owner; for, as I have already indicated, and as Mr. Justice Mahmood aptly put it in Janki v. Girjadat (1885) I.L.R. 7 All. 482 the right of shafa is a right of substitution, and it presupposes not only a sale, but the transfer of all the right of the vendor to a vendee, whose place the pre-emptor is entitled to take. That being so, it would seem to be contrary to the spirit of the Mahomedan law itself to enforce the right in respect of a transaction which would be a complete transfer of he vendor's rights, had that law continued to prevail; but is not so in fact by reason of the general law now in force. In other words, those used by Sir Roland Wilson at p. 412 of his digest of Angro-Muhammadan law, Ed. 4, 'inasmuch as the general law embodied in Section 54 of the Transfer of Property Act, 1882, confessedly supersedes the Mahomedan law of sale on the question of what is necessary in order to transfer the ownership of immoveable property to the purchaser, while the Mahomedan law itself requires that, for the purpose of pre-emption there should be an entire cessation of ownership on the part of the seller, it would seem that we are defeating, rather than giving effect to, that law in the sphere in which we profess to preserve it, if we insist on ignoring a legislative change outside that sphere which has altered the legal procedure for transferring ownership.'
8. No doubt, difficulties may arise in practice whether the Mahomedan Law or the general law be applied strictly. If the latter, the pre-emptor must, where registration is required, wait for registration, which may be deferred or dispensed with, and in the meantime he may be subjected to the evils which the Mahomedan law of shafa is directed against. If the former, his right might apparently see Ladun v. Bhyro Ram (1867) 8 W.R. 255 be defeated by a rescission of the contract for sale at any time before delivery of possession. It is, however, hardly necessary to pursue the matter further or to say more than this that this case is on all fours with Jadu Lal Sahu v. Janki Koer (1908) I.L.R. 35 Calc. 575 and that we follow oar learned brothers in distinguishing the Allahabad cases and holding that, in circumstances such as those before us now, the right did not arise until the pre-emptor became aware of the registration of the kobala conveying the property to Budhai. In this view, I would dismiss the appeal with costs.
9. I agree that the appeal should be dismissed. The main contention urged on behalf of the defendants, appellants, was that under the Mahomedan law the plaintiffs lost their right of pre-emption by waiting till the conveyance to the defendants' was registered. In support of this contention the case of Begam v. Muhammad Yakub (1891) I.L.R. 16 All. 344 was relied on. In that case the vendor sold the property, received the price and delivered possession to the vendee. When the pre-emptor came in to assert his right, he was met by the objection that the claim was premature because the sale had not been completed by registration. It was held in effect that under the Mahomedan law the sale had advanced to a stage when pre-emption might be claimed. It was urged at the time, and might be urged now, that to hold the contrary might lead in some cases to evasion and denial of the right of pre-emption. How long is the pre-emptor to wait for registration? If he waits top long, might it not be said that he had waived his right? While he waits, he suffers the inconvenience which the right of pre-emption was designed to obviate. The decision of the Allahabad High Court, however, was distinguished in this Court in the case of Jadu Lal v. Janki Koer (1908) I.L.R. 35 Calc. 575, 599 where possession was not given and where the price was not paid till registration. Reference was then made to an earlier case, Ladun v. Bhyro Ram (1867) 8 W.R. 255. In that case it was held, in effect, in part reliance, on the authority of a passage in the Hedaya (Ed. 1779, Vol. III., Ch. XXXVIII, p. 598) that when possession was not delivered, the parties to the sale might rescind it so as to defeat a pre-emptor who asserted his right after the sale but before the rescission. A similar conclusion was reached in the case of Ojheoonissa Begum v. Sheikh Rustum (1864) W.R. 219. The facts in these two last mentioned cases are sufficiently stated in the judgments. Apparently the price had not been paid in either case but it is by no means clear that payment of the price would have affected the result. On the other hand, if possession had been delivered, the pre-emptor would probably have succeeded. No doubt some of the observations made in Ladun's Case (1867) 8 W.R. 255 suggest that the Judges might have been disposed to consider registration essential to a complete transfer of ownership. But for the purposes of the decision it was unnecessary to go so far and however that may be, these two cases show at any rate the importance of delivery of possession under the Mahomedan law and the uncertainty attending a claim of pre-emption made before possession is delivered: cf. Buksha Ali v. Tofer Ali (1873) 20 W.R. 216. So too sales which are in their inception invalid under the Mahomedan law are made valid and effectual by possession being given: Najm-un-nissa v. Ajaib Ali Khan (1900) I.L.R. 22 All. 343, 348, 350. And the right of pre-emption arises then and not before.
10. There is no difficulty in applying the Mahommedan law where possession is delivered, but if it is to be applied where possession is not delivered inconvenience may be caused by the rule, or supposed rule, of that law that a sale is constituted by offer and acceptance unconditionally expressed. The Mahomedan law of sale is not now administered in India except incidentally in connection with the subject of pre-emption, and it is doubtful to what extent and with what qualifications a principle so broad can ever have been accepted in practice. The question of the quantum of evidence reasonably necessary to prove a transaction as important as a sale of land cannot be altogether neglected. Inquiry might disclose the existence of general or particular rules of evidence, which would be important in this connection.
11. In Ojheoonissa's Case (1864) W.R. 219, 220, it was said: 'A sale is a complete sale in the eye of the Mahomedan law where the seller says orally, 'I have sold,' and the purchaser says 'I have bought.' In the present case, where a bill of sale has actually been written out and signed by the seller, he no doubt has done his part towards the completion of the sale; he has in fact proclaimed in a more solemn and formal manner than by word of mouth that he has sold. But if the bill of sale is still in the seller's hands, and has never left them, and nothing has been done by the purchaser, such as the payment of the purchase money, or entry into possession, which would be tantamount to his acquiescence in the sale one essential element for the constitution of a complete sale is wanting, for the purchaser has not said, either directly or indirectly, 'I have bought.'
12. The concluding sentence of this passage really means that the purchaser's assent to the sale had not been proved. Any attempt to apply the Mahomedan law strictly in all cases might involve great, if not insuperable, difficulties. What is really required is some simple rule or rules, easily understood and easily applied. In Jadulal's Case (1908) I.L.R. 35 Calc. 575 Brett J. suggested (at p. 599) that a solution of the problem was to be found 'in determining in each case what was the intention of the parties.' A working rule might perhaps be founded on that with the addition that the intention of the parties to the sale must be manifested in some unequivocal way to the outside world. One effectual and acceptable mode of manifesting that intention may be delivery of possession; another may be registration.
13. In the present case, however, we need go no further than the learned Judges actually went in Jadulal's Case (1908) I.L.R. 35 Calc. 575, distinguishing the case of Begam v. Muhammad Yakub (1894) I.L.R. 16 All. 344. 9 B.L.R. 253 on the facts, and holding that when possession is not given and the price is not paid till registration, the right of pre-emption arises upon registration and not before. The result is that the contention that there was undue delay on the plaintiff's part in asserting his claim to pre-emption must be rejected.
14. There remains the question of waiver. It is said in the first place that the vendor offered the property to the plaintiff before he entered into negotiations with the vendee Budai, and that the plaintiff deprived himself of his right of pre-emption by refusing the offer. The circumstances, however, in which the offer was made and the details of the offer are not disclosed and, in my opinion, there is no substance in this contention. It further appears that after the execution of the instrument of the 14th December, 1907, the plaintiffs themselves entered into negotiations with the vendor to purchase the property for Rs. 400. An instrument of sale was duly prepared but was not registered because the plaintiffs did not pay the price. I cannot suppose that the failure of the plaintiffs to purchase the property for Rs. 400 amounted to a waiver of their right of pre-emption in respect of the sale to the vendee for Rs. 300. The cases of Torul Komhar v. Mussamut Achhee (1872) 18 W.R. 401 and Kooldeep v. Ram Deen Singh (1875) 24 W.R. 198 were referred to in this connection but the facts being insufficiently reported, it is impossible to say precisely what was decided in those cases. The facts of the case before us do not bring it within such rulings as those in Sheo Tahul v. Ram Kooer (1864) W.R. 311 and Brojo Kishore v. Kirtee Chunder (1871) 15 W.R. 247. On the facts found, the present case rather resembles that of Jehangir v. Lala Bhikari (1869) 6 B.L.R. 42 note. It does not appear that at the time of the original offer the plaintiffs had any knowledge of any agreement or even of any proposal to sell the property to a third person and it does not appear that they ever had an opportunity to purchase the property for Rs. 300, or that they ever sanctioned its sale to the vendee for that price: cf. Kanhai Lal v. Kalka Prasad (1905) I.L.R. 27 All. 670.
15. In the result, I agree that the appeal should be dismissed with costs.