N.R. Chatterjee, Ag. C.J.
1. The question referred to the Special Bench is whether under the Mahomedan Law one co-parcener has any right of pre-emption where another co-parcener happens to be the purchaser.
2. The question was decided by a Full Bench of this Court in the negative in the case of Lalla Nowbut Lall v. Lalla Jewan Lall  4 Cal. 831. Since then the Allahabad High Court and a Full Bench of the Bombay High Court have taken the opposite view, and having regard to the original authorities on the point which were not placed before the Full Bench in Lalla Nowbut Lall's case  4 Cal. 831, a Division Bench of this Court was of opinion that the Full Bench decision should be reconsidered, and hence this reference to the Special Bench.
3. In the case of Lalla Nowbut Lall v. Lalla Jewan Lall  4 Cal. 831. Garth, C.J., delivering the judgment of the Full Bench said:
There appears to be no reason, either upon principle or authority, why the right of Shaffa should exist as between co-parceners; and the rule as laid down in Hamilton's Hedaya, Vol. 3, Bk. 38. Chap. 1 appears to have been misunderstood in this respect. That rule merely prescribes that any one partner (or co-parcener) of a property has a right of shaffa as against a stranger, who purchases a share from his co-partner, and does not mean, that the right exists as between co-partners who may purchase shares from one another. The object of the rule, as explained in that chapter, and in Chap. 3, is to prevent the inconvenience which may result to families and communities from the introduction of a disagreeable stranger as a co-parcener or near neighbour. But it is obvious that no such annoyance can result from a sale by one co-parcener to another. The only result of such a sale would be to give the purchaser a larger share in the joint property then he had perhaps larger than the other co-parceners have.4. But the Hedaya nowhere says that that the right of pre-emption can be exercised only against a stranger and not against a coparcener who also can claim as a pre-emptor. On the other hand there are indications in it to show that one coparcener can claim pre-emption against another. In Vol. 3, Book 38, Chap. 1 (See Hamilton's Hedaya, Grady's 2nd edition, page 549) it is laid down that:
when there is a plurality of persons entitled to the privilege of shaffa the right of ali is equal.
The argument of our doctors is, that the parties being all equal with respect to the principle on which their right of shaffa is grounded (namely a conjunction with the lands sold) they are all consequently equal in the right itself.
5. In follows from these passages that all co-parceners have got equal rights to shaffa. To hold that one co-parcener has no right of pre-emption against another would be to deny him the right of equality and would be a violation of the Hedaya rule that the rights of all are equal. It seems that it is only in conformity with this rule of equality that the Hedaya says (page 549):
If some of the partners happen to be absent the whole of the shaffa is to be decreed equally amongst those who are, present, for it is matter of uncertainty whether those who are absent would be inclined to demand their right; and the rights of those who are present must not be prejudiced on a mere uncertainty. If, however, the Kazee should have decreed the whole of the shaffa to one who is present, and an absentee afterwards appear and claim his right, the Kazee must decree him his half; and so likewise if a third appear, he must decree him one-third of the shares respectively held by the other two; in order that thus an equality may be established amongst them.6. It appears, therefore, that the Hedaya supports the right rather than negatives it. ON the other hand, the other authorities are distinctly in favour of such right. They are all collected in the case of Amir Hassan v. Rahim Bakhsh  19 All. 466. The learned Judges referred to passages, and quoted the original texts, from Takmila, Bahr-ur-Raikh, Tatar Khaniyah, Dur-rul-Mukhtar, Fatawa Alamgiri. Inayah or Aini and Radd-ul-Mukhtar, which are works of very high authority and the last of which according to Ameer Ali 'is certainly esteemed as the best authority on Hanafi Law,' and observed as follows:
These texts, the authority of which has not been questioned by Mr. Abdul Majid on behalf of the respondents, establish, as we have said two propositions; first that even when the buyer is himself a pre-emptor, that is a person who would have the right of pre-emption against an outsider, other parsons having a similar right of pre-emption are entitled to claim pre-emption against the buyer; and, secondly, that is such a case the rights of the claimants to pre-emption should be determined in the same way in which they would have bean determined, had the buyer acquired the property by enforcing his right of pre-emption against a stranger, in the absence of the other pre-emptors and the absentee pre-emptors had appeared subsequently and claimed pre-emption. In this view, as all parsons having equal right of pre-emption are only entitled under the Muhammadan Law to divide the property equally per capita, and as the purchasers in this case are two in number the plaintiff appellant is entitled to only a third share of the property sold.7. The case was followed in Abdullah v. Amanatullah  21 All 292 and Nader Husain v. Sadiq Husain : AIR1925All361 .
8. A Full Bench of the Bombay High Court in Vithaldas v. Jametram  44 Bom. 887, following the case of Amir Hasan v. Rahim Bakhsh  19 All. 466 held that under the Hanafi School of Mahummadan Law, neighbours have equal rights to pre-empt, and there is nothing which is contrary to the principles of justice, equity and good conscience in allowing two neighbours who have equal, rights of pre-emption to exercise them.
9. In Baillie's Digest of Mahummadan Law Book 7, Chap. 6, page 494, it is started:
Pre-emption according to 'us', is by heads (per capita). When a mansion is owned by three persons, one of whom has a half, another a third and another a sixth and the owner of the half having sold his share, it is claimed by the other two under their right of pre-emption, it is to be decreed between them in halves. Or if the owner of the sixth should sell his share, it is to be divided between the other two in halves. And if one of them should cause his right to drop, the whole belongs, per capita, to those that remain. Or if one is absent, decree is to be given, per capita, to those who are present. But after decree of the whole to one who is present a second should appear, half is to be decreed to him, and if a third should appear, decree is to be given to him for a third of what is in the hands of each of the other two. If the one who is present should surrender after decree has been given in his favour for the whole, the parson who arrives is entitled to no more than a half.10. In Ameer Ali's Muhammadan Law, 3rd Edition, Vol. 1, page 597 it was stated:
when one co-sharer conveys his share to another cosharer, no other co-sharer, if any, can have a right of pre-emption, the rights of all being equal, and the reason on which the right a founded, therefore, being absent. In other words no right of pre-emption arises in favour of a coparcener when the purchaser himself is a co-sharer of the vendor and the claimant.11. No authority was cited in support of the proposition.
12. In the fourth Edition of the book at page 729 the learned author referring to the case of Lalla Nowbut Lall 4 Cal. 831 states
A Full Bench of the Calcutta High Court has held that when a co-sharer conveys his share to another co-sharer, no other co-sharer if any, can have a tight of pre-emption, the right of all being equal.13. and the reason, on which the right is founded being, therefore, absent, the latter portion of the passage in the 3rd Edition quoted above being omitted, and referring to the view taken in the Allahabad case of Amir Hasan  19 All. 466 observed
This view is undoubtedly in conformity with the enunciations of the Mahomedan jurists. The principle is based on the following ground. As all the pre-emptors have equal rights against a stranger, their rights are the same inter se, and it would be unfair to give preference to one share-over the others. And any one pre-emptor or may pre-empt in respect of his specifics share; Abdullah v. Amanatullah  21 All 292. In Wilson's Anglo Muhammadan Law, 2ad Edition, p. 401, Section 358, it is stated 'if the claim is made by two or more persons belonging to the same category, they are entitled to equal shares of the pre-empted property on tendering their respective quotas of the purchase money.14. On behalf of the respondent, reliance is placed upon the opposite view which was taken in the Full Bench case of Nowbut Lall  4 Cal. 831 and some cases which preceded it. In Babu Moheshee Lall v. Mr. G. Christian  6 W.R. 250 the dispute was between two non-Mahomedans, but the Mahomedan Law of pre-emption had been adopted by the Hindus in the locality. The learned Judges (Bayley and Pundit, JJ.,) observed
If Mr. Christian was a coparcener no right of pre-emption as against a co-parcener could exist.15. No authority was cited, and the case was remanded for trying the issue, (among others) whether custom makes pre-emption binding on a Christian in Bhagalpur.
16. In Teeka Dharee Singh v. Mohur Singh,  7 W.R. 260 the same learned Judges (Bayley and Pundit, JJ.) held that the Mahomedan Law of pre-emption was never intended to apply to a case in which the purchaser is not a stranger, but one who is already a shareholder or a neighbour. They observed:
Both the lower Courts ware presided over by two Mahomedan Moulvis, and the special appellant's pleader, also a Moulvi cannot quota any text of law in support of his claim.17. SO no text of Mahomedan Law was quoted in either case.
18. In the Full Bench case of Nowbut Lall  4 Cal. 831, as already stated, neither the passages from Hedaya supporting the right (cited above), nor any other text of Mahomedan Law was referred to or discussed in the judgment. Garth, C.J., in delivering the judgment of the Full Bench apparently based the decision on the ground that the object of the rule of shaffa is to prevent the inconvenience which may result to families and communities from the introduction of a disagreeable stranger as a co-parcener or a near neighbour. But the doctrine of shaffa, as it is at present accepted, does not appear to be based entirely on that object. According to the Hedaya 'the grand principle of shaffa is the conjunction of property' Vol. III, Book 38, Chap. III, page 558, and it is on a conjunction with the lands sold that the right of shaffa is grounded. Vol. III, Book 38, Chap. 1, page 549.
19. The original idea of the rule of shaffa might have been to prevent vexation and inconvenience resulting from a disagreeable neighbour. But apparently the equality of the right of all shafees came to be fully recognized. It would be neither fair nor equitable to refuse their rights now only on the ground that the enjoyment of those rights would not be necessary for the original object with which the rule of shaffa might have been started.
20. We were also referred, to Tyabjee's Mahomedan Law, 2nd Edition, Section 527 and Abdur Rahim's Tagore Lectures, page 273. Tyabjee does not give any decided opinion on the point. In Abdur Rahim's Tagore Lectures it is stated that the reason
21. why this right is allowed is that the introduction of a stranger is likely to give rise to dissensions and inconveniences, and the principle on which it is based is that each co-sharer, having a right in every particle of the property, one co-sharer sailing his share would thereby affect the enjoyment of his share by the other co-owner and this he cannot do without his consent.
22. The reason stated is no doubt one of the reasons, but the learned lecturer was not dealing with the right of the coparceners claiming right of pre-emption inter se, and there is nothing in it against the right.
23. It is contended that the law as laid down by the Full Bench and the cases which preceded it having stood for a period of about 60 years, we should not disturb the decision of the Full Bench, that we are not bound to apply the strict Rule of Mahomedan Law to cases of preemption but should decide such cases according to the principles of justice, equity and good conscience. But in the first place, as already observed, neither the passages from Hedaya referred to above, nor the original texts from the works of eminent Mahomedan jurists [cited in the Allahabad case of Amir Hasan  19 All. 466] were referred to or discussed by the learned Judges in the Full Bench case or in the other cases of this Court.
24. In the next place although the Courts are not bound to decide cases strictly according to the rules of Mahomedan Law in matters of pre-emption, there is nothing in the rule laid down by the Mahomedan jurists which is contrary to the principles of justice, equity and good conscience. On the contrary the rule is based upon equality of rights of co-parceners, and Ameer Ali, as stated allover observes that
it would be unfair to give preference to one sharer over the other, so that according to the learned author and the Mahomedan jurists it is the view taken by the Allahabad Court and not that taken by the Full Bench of this Court which would be in consonance with the principles of justice, equity and good conscience. Lastly it is true that the Full Bench decision has stood for even half a century and upon the principle of stare decisis the Court should not upset well-settled law especially the decision of a Full Bench. But cases of pre-emption are very rare in the province of Bengal (as now constituted), and our decision cannot affect many titles, specially as after the lapse of one year the right of the purchaser cannot be challenged. Had there been conflict of opinion among Mahomedan jurists we would not have been disposed to disturb the rule laid down by the Full Bench of this Court. But it appears that the original texts of Mahomedan Law, are all in support of the view contended for on behalf of the appellant; the view is not contrary to any principle of justice, equity and good conscience, and has been taken by the Allahabad and Bombay High Courts, and accepted as good law by the modern text-writers. In these circumstances we think we would be justified in giving effect to what, according to Ameer Ali, is undoubtedly in conformity with the enunciations of the Mahomedan jurists.25. We accordingly hold that the case of Nowbut Lall v. Jewan Lall  4 Cal. 831 was wrongly decided and answer the question referred to us in the affirmative.
26. As the Reference is made in a second appeal we have to dispose of the appeal itself.
27. The plaintiffs are entitled to a decree for one-half of the property the subject matter of the pre-emption on payment of half the purchase-money.
28. Each party will bear its own costs in all the Courts.
29. I agree.
30. I agree.
31. I agree with the judgment just delivered by the learned Chief Justice. All authorities under the Mahomedan Law are at one on the question and no authority or text had been cited to the contrary view. It is not necessary to multiply authorities to those given in the case of Amir Hasan v. Rahim Bakhsh  19 All. 466.
31. I agree with the learned Chief Justice.
32. I agree.
S.C. Mullick, J.
33. I agree with the learned Chief Justice.