Farman Khan vs Bharat Chandra Shaha Chowdhry <BR> Sayama Kumar Roy and Others Vs Jan Mahomed and Others <BR> Sheikh Kudratulla Vs Mahini Mohan Shaha

Mitter, J.—The question to be determined in these cases is, whether in a district, the Hindu inhabitants of which have not adopted the Mahomedan custom of pre-emption, a Mahomedan is entitled, either upon the ground of vicinage or co-parcenary, to enforce a right of pre-emption against a Hindu purchaser from a Mahomedan vendor. I am of opinion that this question ought to be answered in the negative. For the purpose of arriving at a correct solution of this question, it is necessary, first of all, to ascertain the law upon which the solution ought to be based. That the Mahomedan law is not the law of the land is, I believe, a proposition beyond all dispute; and it follows, therefore, that the mere fact that the subject-matter of this suit is immoveable property, is no ground whatever for holding that it is necessarily governed by the provisions of the Mahomedan law as the law of the place in which that property is situated. If, therefore, we are at all bound to apply the Mahomed an law of pre-emption to a case of this description, it must be either because the application of that law has been made obligatory upon us by some positive legislative enactment, or because the principles upon which it is founded are so eminently consistent with those of justice, equity, and good conscience, that the Courts of this country are, by their very constitution, bound to follow them, in the absence of any express legislative declaration to the contrary. Section 9, Regulation VII of 1832, however, appears to me to be conclusive on this point. That section runs as follows : It is hereby declared 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 to the case, and 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, where one party shall be of the Hindu and the other of the Mahomedan persuasion, or where one or more of the parties to the suit shall not be either of the Hindu or Mahomedan 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 such laws they would have been entitled. In all such cases, the decision shall be governed by the principles of justice, equity and good conscience." Now the present suit is admittedly a suit of a civil nature, and it is also a suit the parties to which are of different religious persuasions. Under such circumstances, it is perfectly clear, that the decision of such a suit must be governed by the section above referred to, and that section not only requires that we should follow the rule of justice, equity, and good conscience as our only guide in cases of this description, but it absolutely forbids us to apply the Hindu or the Mahomedan law to those cases, if we find that the result of such application would be to deprive any one of the parties of a property to which he would have been otherwise entitled. This then being the law upon which our decision ought to be based, let us see, first of all, whether the effect of our allowing the Mahomedan law of pre-emption to operate in this case would be to deprive the Hindu purchaser of a property to which he would have been entitled but for the operation of that law; and, in the nest place, whether the provisions of that law are so consistent with the principles of justice, equity, and good conscience that we are bound to administer them, without any reference whatever to the religious persuasions of either of the contending parties. If the first of these two questions is answered in the affirmative, it would be useless to proceed with the second, for it is clear that however just and reasonable the Mahomedan law of pre-emption might be in itself, it would be not only contrary to the rule of justice, equity, and good conscience which we are bound to follow in all such cases, but also to the positive injunctions of the Legislature, if we allow that law to defeat the vested rights of an individual, who is Under no legal or moral obligation to obey it. If, on the other hand, the first question is answered in the negative, we shall have still to proceed with the solution of the second, for unless we find that the Mahomedan law of pre-emption is in strict conformity with the principles of justice, equity, and good conscience, we have no right whatever to enforce it against a Hindu, who is, as I have already observed, under no legal or moral obligation to abide by it. Both these questions, however, are inseparably connected with each other, and the answer to both of them entirely depends upon the nature of the right of pre-emption under the Mahomedan law. 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 it in the first instance, those co-parceners 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 Mahomedan 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 Mahomedan 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; and it would be, therefore, contrary to the express provisions of section 9, Regulation VII of 1832, to deprive him of a property which has already become his, by the application of a law which per se has no obligatory force upon him. Now, so far as I can judge of the Mahomedan law of pre-emption from the materials within my reach, it appears to me to be perfectly clear that a right of pre-emption is nothing more than a mere right of re-purchase, not from the vendor but from the vendee, who is treated, for all intents and purposes, as the full legal owner of the property which is the subject-matter of that right. There is nothing whatever in the Mahomedan law, so far as I am aware of, which imposes upon any one the obligation of making the first offer to his neighbour or co-parcener before he can sell his property to a stranger; nor is there anything to show that the right of pre-emption is based upon any such obligation the nonfulfilment of which would prevent the stranger from acquiring a complete and valid title in the property by virtue of his purchase. On the contrary, I find it clearly laid down by the Mahomedan lawyers themselves, that it is an extremely feeble right which comes into existence for the first time after the full legal title has already passed to the purchaser by the sale, and that it is based upon considerations arising not from any defect of title in the purchaser or in the vendor, but from the inconvenience to which the pre-emptor would be subjected if a stranger were allowed to retain a property which is situated in his neighbourhood, or in which he is interested as a co-parcener.

These remarks appear to me to be fully borne out by the following passages in the Hedaya : And certainly a greater regard is duo to the partner than to the stranger, since the vexation that would ensue to the partner from forcing him to abandon a place which from long residence "may have acquired his affections would, doubtless, be greater than that to which the stranger is subjected; for although he may be thus dispossessed contrary to his inclination of a property over which he has acquired a right by purchase, yet still the grievance is but inconsiderable, since he is not dispossessed without receiving a due consideration."-- Volume III, page 563. The privilege of shaffa is established after '' the sale."--Ibid., p. 568. "The right of shaffa is not established until the '' demand be regularly made in the presence of witnesses, and it is '' requisite that it should be made as soon as possible after the sale is '' known, for the right of shaffa is but a feeble right, as it is the disseizing another of his property, merely in order to prevent apprehended '' inconveniences."--Ibid. When the demand has been regularly made in the presence of witnesses, still the shafee does not become "proprietor of the house until the purchaser surrenders it to him, or until the Magistrate passes a decree; because the purchaser''s property was complete, and cannot be transferred to the shafee but by his own consent, or by a decree of the Magistrate."-- Ibid. But if possession has been delivered to the purchaser, the taking of evidence against the '' vendor is not sufficient, he being no longer an opponent; for having neither the possession nor the property, he is a stranger."--Ibid., page 572. Where the seller, however, is in possession of the premises, the presence of both is necessary, for first the purchaser is the proprietor, and the seller the possessor; and as the decree of the Kazi must be against both, both must be present."--Ibid,, page 576. These passages conclusively prove that the right of pre-emption is nothing more than a mere right of re-purchase from the purchaser, who is recognized for all intents and purposes as the full legal owner of the property; that it is a right which arises not from any antecedent defect of title in the vendor, but comes into existence after the right to the property has completely passed to the purchaser; and lastly that it is a right of an extremely feeble nature, solely and exclusively based upon considerations of apprehended inconveniences" to the pre-emptor, if the purchaser is not compelled to part with it on receiving back the full amount of the purchase-money which he had paid to his vendor.

Such then being the nature of the right under the Mahomedan law itself, and the simple question in all such cases being, as the Mahomedan lawyers have themselves put it, whether the inconvenience to which the purchaser would be subjected by being obliged to surrender a property, over which be has acquired a complete title" by purchase, is greater or less than the inconvenience to which the pre-emptor would be subjected if his claim to re-purchase were not recognized, are we not at once met by that portion of section 9, Regulation VII of 1832, which peremptorily lays down that we should not, in any civil suit, the parties to which are of different religious persuasions, permit the law of the Mahomedan religion to operate to deprive any one of the parties to such a suit of a property to which he would have been entitled but for the operation of that law? And is it not perfectly clear that if we allow the Mahomedan law of pre-emption to operate in this case, the inevitable result of such operation would be to deprive the Hindu purchaser of a property of which he has already become the full legal owner even according to the Mahomedan law itself? I do not mean for one moment to say, that we are absolutely prevented from applying the provisions of the Hindu or the Mahomedan law to any civil suit, the parties to which are of different religious persuasions. On the contrary, those provisions have been frequently applied to such cases; but they have been properly applied to those cases only in which it was distinctly borne in mind what the Legislature has so clearly stated in the first sentence of section 9, Regulation VII of 1832, namely, that the rules relating to the application of those provisions were designed for the protection of the rights of such persons, (i.e., of the bona fide professors of those religions) and not for the deprivation of the rights of others.

It has been said that if a Mahomedan sells a property to a Hindu, alleging that property to be his under the Mahomedan law of inheritance, and if the real heir to that property brings a suit against the purchaser upon the allegation that his vendor had no right to it, the Mahomedan law of inheritance is the only law upon which the decision of such a suit) ought to be based, although the parties to it are of different religious persuasions. But this case is altogether distinct from the one now before us. It is perfectly true, that, in the former case, we are bound to look to the Mahomedan law of inheritance as our only guide, bat we are to do so not because the Mahomedan law has by itself any obligatory force upon the Hindu purchaser, but because the ends of justice dictate that it is the only law by which the rights of the parties can be determined. The plaintiff gets the benefit of that law, because we are bound to protect his rights, and the defendant has no right to complain when we apply that law against him, because by doing so we do not deprive him of any property to which he would have been otherwise entitled; but we simply declare that he did not acquire any property by virtue of his purchase, as his vendor had none to sell, a declaration which is beyond all question perfectly consistent with that rule of justice, equity, and good conscience which the Legislature has laid down for our guidance in such oases. Indeed, the right of the purchaser in such a case, if any, is entirely based upon the Mahomedan law; and it is by appealing to the provisions of that law that he can pretend to make out that right, for there is no other law upon which be can fall back. The present case, however, stands on quite a different footing. It is true that the party from whom the respondent made his purchase was bound by the Mahomedan law, which was the law of his religion; but that law did not prevent the respondent from acquiring a complete and valid title by virtue of his purchase. If, therefore, after he has already acquired such a title, we apply the Mahomedan law against him, we deprive him of a property to which he would have been entitled but for the application of that law, and this we are strictly forbidden to do by the express provisions of the section to which reference has been so often made.

In order to point out clearly the nature of the right of pre-emption under the Mahomedan law, we have only to contrast it with the right which the member of a joint undivided Hindu family possesses against the other members of that family under the Mitakshara. By the latter law, every member of a joint undivided Hindu family has a positive right of veto against the other members, if they are about to dispose of their undivided shares in the joint property either by sale, gift or otherwise; and every such disposition is absolutely null and void, if made without his consent. The Mahomedan law, on the other hand, allows the right of pre-emption to come into operation only in the case of a sale, and it nowhere recognizes any right of veto in the pre-emptor. In the former case, there is a positive legal disability on the part of the member of a joint undivided Hindu family, which prevents him from conveying a valid title to the purchaser, without obtaining the consent of his co-parceners; and if the purchaser chooses to purchase without such consent, he does so at his own risk and peril. Suppose that the purchaser happens to be a Mahomedan, and a suit is brought against him by the co-parceners of his Hindu vendor, for the purpose of setting aside the purchase, the ends of justice and equity would certainly require that we should look to the Hindu law for the purpose of determining the respective rights of the parties; and when we apply the provisions of that law to such a case, we do not consult the mere conveniences of the parties, but we simply protect the rights of the Hindu co-parceners without depriving the Mahomedan purchaser of any property to which he would have been otherwise entitled; for he has no property to be deprived of, as there was none which his vendor could sell, and none, therefore, which could pass to him by virtue of his purchase. The Mahomedan law, on the contrary, far from imposing such disability upon the vendor, expressly sanctions various tricks and artifices by which the right of preemption can be absolutely defeated. I shall have occasion hereafter to refer to these tricks and artifices in dealing with the second question which I proposed at the commencement of this discussion; but I wish to refer to them in this place, merely for the purpose of showing that, if the founders of the Mahomedan law had the least intention of establishing the right of pre-emption upon a positive obligation on the part of the vendor not to sell his property to a stranger, without making the first offer to his neighbours and coparceners, they could not have, at the same time, allowed that obligation to be evaded by tricks and artifices, which, to say the least of them, would be on such a hypothesis nothing but fraudulent. This argument becomes almost insurmountable, when we reflect that the Mahomedan law itself is essentially based upon the Mahomedan religion, and it is almost incredible that the professors of that law, who are notorious for the tenacity with which they adhere to the tenets of their creed, should have, after having imposed a legal obligation upon the vendor, and thereby made it almost equal to a religious obligation, allowed him to get rid of that obligation, by fraudulent devices, which, upon such a supposition, they could not but have regarded as positively sacrilegious.

Now as to the second question, namely, whether the provisions of the Mahomedan law of pre-emption are so consistent with justice, equity, and good conscience that we are bound to administer them, irrespective of any consideration arising from the difference in the religious persuasions of the parties to this litigation. I have already observed that the determination of this question would be perfectly unnecessary, if the first question is answered in the affirmative; and as I believe that I have already shown that the first question does not admit of any other answer, I will dismiss the second with very few remarks. A Full Bench of this Court in Fukeer Rawot v. Sheikh Emambuksh Case No. 1116 of 1861; September 38th, 1863, (B.L.R. Sup. 35) has already decided that a Hindu cannot enforce a right of preemption against a Mahomedan purchaser from a Mahomedan vendor, in a district, the Hindu inhabitants of which have not adopted the Mahomedan custom of pre-emption. I am far from saying that this decision has, in any manner, settled the point which has been referred to us in the present case; nor do I mean to say for one moment that the converse of every true proposition is necessarily true. But what I mean to say is, that it is at least a conclusive authority to show that there is nothing in the Mahomedan law of pre-emption to recommend it to us upon the bare abstract ground of justice, equity, and good conscience. "Whether the Hindu inhabitants of the district in which the case in which that decision was passed arose had adopted the Mahomedan custom of pre-emption or not, would have been perfectly immaterial, if the Court had found that the Mahomedan law of pre-emption was strictly consistent with the principles of justice, equity, and good conscience; for in that case the Court would have been bound to follow that law not because it was the law of the Mahomedans, but because it was identical with that rule of justice, equity, and good conscience which it is bound to administer in all cases in the absence of any positive legislative provision to the contrary. But it is needless to dwell any further upon this point. The Mahomedan law itself, as I have already shown, puts the right of pre-emption entirely upon considerations of apprehended inconveniences to the pre-emptor; but the value of such considerations is absolutely nil before a Court of Equity, when it finds that the necessary consequence of acting upon them would be to deprive a person of a complete and valid title which has been already vested in him by the laws of his country. The artifices sanctioned by the Mahomedan law for the purpose of defeating the right of pre-emption conclusively show that the right itself, as recognized by that law, is so extremely feeble and imperfect that no Court of Equity ought to enforce it against a person who is under no legal or moral obligation to obey that law. It may be said that if the feeble and imperfect nature of the right is a sufficient ground for its rejection by a Court of Justice, such a right ought not to be enforced in any case, even though the parties to it are both of them Mahomedans, or both of them Hindus who have adopted the Mahomedan custom of pre-emption. But the answer to this objection is very plain. In the first place, an uninterrupted series of decisions have laid down that this right should be enforced as between Mahomedans, and also as between Hindus who have adopted the Mahomedan custom of pre-emption. The law on these points has been settled by a uniform course of decisions, and it is no longer open to us to question it at such a late period of time. Then again, imperfect as the right may be, those who have voluntarily accepted the law by which that right is recognized have no reason to complain, if it is enforced as between themselves : and what the purchaser loses in one case he may gain in other cases on the strength of a similar right, if the parties to those cases happen to be of the same persuasion with himself, or have adopted the same custom as he has done. In the present case, however, even this ground is wanting. If we decide this case against the Hindu purchaser, and thereby deprive him of a property which has already become his by the laws 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 Mahomedan should choose to purchase a part of his family-house from one of his co-parceners. So long as this country was under the Mahomedan 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 Mahomedan law, which was in fact the law of the land. But now that the Mahomedan 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 Mahomedan 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. No doubt, if the ends of justice and equity require that this should be done, let it be done by all manner of means; but I believe that I have already shown that we are positively forbidden, by the Legislature itself, to introduce the Mahomedan law of preemption in a case of this description.

It has been argued that if two persons jointly purchase a piece of land, and covenant between themselves that neither of them will sell his share in the land to a stranger without giving an opportunity to the other to purchase it in the first instance, and if a stranger purchases such a share with notice of the covenant, he would be certainly bound by it before a Court of Equity. But there is no real analogy between this case and the present. In the first place where is the privity between the vendor and the pre-emptor in the present case. It is true that they are both Mahomedans, and as such bound by the Mahomedan law; but they might have acquired their respective interests without any reference to each other, and neither of them would have any right in that case to charge the other with any breach of faith if the latter were to use his own property without interfering with the rights of the former. Suppose that the vendor in this case had changed his religion before or at the time of the sale,-- could it have been still contended that he was bound by the Mahomedan law of pre-emption, and that the effect of that law was to create a permanent covenant between him and his neighbours and co-parceners, which would, at all times, prevent him from selling his property to any one he liked, without their consent and sanction? But the argument is conclusively refuted by the fact that the Mahomedan law itself imposes no such obligation on the vendor; but, on the contrary, it authorizes him to defeat any claim of pre-emption which his neighbours and co-parceners might choose to advance by tricks and artifices which could not but have been regarded as fraudulent and sacrilegious, if any such obligation had been in actual existence. Suppose that two persons were to enter into a covenant like the one assumed in the argument in question, and suppose also that there was a clause in that covenant to the effect that the obligations created thereby could be evaded by tricks or artifices similar to those recognized by the Mahomedan law of pre-emption,--would not every Court of Equity treat such a covenant as an absolute nullity? And would anybody contend for one moment that a purchaser for valuable consideration would lose his rights by such purchase, merely because it was made with notice of such a covenant? I think that there can be but one answer to both these questions.

In conclusion, I have only to add that so far as decided cases are concerned, they are all in favor of the view which I have taken in this case. The first case cited in the course of the argument, Gholam Nobby Chowdhry v. Gour Kishore Rai 1 Sel. Rep. 350 : 6 I.D. (O.S.) 343, is too obscurely reported to be relied upon as an authority on either side. It appears that the first regular suit, which was brought solely upon the ground of the Mahomedan law, was dismissed by the provincial Court; and we further find that there was a direction in the second suit to enquire whether the Hindus of the place had adopted the Mahomedan custom of pre-emption. Nothing farther appears from the printed report on the point of custom, and it is impossible to say whether the Mahomedan law, which was ultimately applied to the case, was so applied on the ground of custom or otherwise. The cases of Dewan Munwar Ali v. Syed Azhurooddeen Mahomed 5 W.R. 270, Baboo Mohesh Lal v. Christian 6 W.R. 250 and the same case 6 W.R. 446 later on appeal, and Sheraj Ali Chowdhry v. Rumzan Bebee 8 W.R. 204, are directly in favour of my view. The other cases that were cited in the course of the argument have no bearing upon the point now before us, inasmuch as they arose in districts in which the Hindus have adopted the Mahomedan custom of pre-emption.

Kemp, J.

The question proposed to the Full Bench in this case, is, when no local custom exists with regard to pre-emption amongst Hindus, can a Hindu purchaser be deprived of his right of pre-emption by a Mahomedan claiming the right of pre-emption either as a co-sharer or a neighbour? I am of opinion that this question must be answered in the negative. The course of decision on this point hitherto appears to me, on the whole, to favour the view which I take. Justices Trevor, Bayley, the late Shumbhunath Pundit, Phear, Glover, and last myself have adopted this view, and to this list I may now add my learned colleague Mr. Justice Mitter. These decisions, in my opinion, certainly favour the view which I take, namely, that where no local custom exists among Hindus, a Mahomedan pre-emptor has no right of pre-emption as against a Hindu purchaser. Of the three cases which are now before us, two were brought claiming shaffa in right of co-parcenary, and in the other, shaffa was claimed by right of vicinage.

It is a somewhat remarkable fact that a Mahomedan Moulvie was the officer who decided one of these cases. His decision was against the Mahomedan pre-emptor. However, we have nothing to do with the merits of the three cases which have been submitted to us; we have only to answer the abstract question of law which has been referred to us for our opinion.

Mr. Justice Mitter, has, in my opinion, shown most conclusively how feeble a right at the very best the right of pre-emption is, according to the Mahomedan law. It must not be supposed that this right of preemption, which is a creature of the Mahomedan law, was the right of the Mahomedans alone, even when the Government of the country was a Mahomedan Government; and even in other countries now governed by Mahomedan sovereigns, the right of pre-emption is not confined to Mahomedans. It is also allowed to zimmees, or infidels, that is to say, Christians, Hindus, and the like, for Christians and Hindus are considered infidels by Mahomedans.-- Baillie''s Mahomedan Law, 473; 3 Hedaya, 585, Book XXXVIII, Chapter II. The right of pre-emption is given, first, to a partner in the land sold; secondly, to the partner in the immunities or appendages of the land, such as the right to water and to roads; and, thirdly, to a neighbour. The right of pre-emption relates to a thing held in joint property which has not been divided off. It is given under the Mahomedan law to a partner to prevent the inconvenience which would arise from a division, for if the partner were not to get the share which is the subject of shaffa, the new purchaser, who might be a Hindu or a Christian, might insist upon a division, and thus inconvenience the Mahomedan co-partner. But this privilege of shaffa is not established, and is not complete until after the sale, for the right cannot arise or exist until the proprietor is no longer inclined to keep his land or his house, and this can only be manifested by the sale of the land or the house.--3 Hedaya, 568, Book XXXVIII, Chapter II. Mr. Justice Mitter has dwelt upon the devices by which, under the Mahomedan law itself, the vendor can get rid of the obligation. That these devices are sanctioned by the great Mahomedan lawyers, is very clear. Abu Yousaff, the great disciple of Hanifa, who is considered the great oracle of Mahomedan jurisprudence,--Abu Yousaff who was selected for his learning by the great Harun Alrasehid to be the first Kazi-ul-Kuzat, or supreme civil magistrate,--Abu Yousaff, himself held, that such devices are not abominable; and his argument is, that as the devices prevent the right of shaffa from ever being established, the inconvenience that may accrue to the pre-emptor ought not to be considered. I will mention one or two instances of devices countenanced by the Mahomedan law, by which a vendor may defeat the right of the shafee. Take the instance of two Mahomedan neighbours. A Mahomedan wishes to sell his house to a Hindu, He has nothing to do but to reserve the breadth of one yard extending along the house of the shafee to defeat his right. Take another instance. If A, a Mahomedan, sells a house to B, a Hindu, for two lakhs of rupees, and afterwards in lieu of that sum, A takes a jumma or gown, the pre-emptor must take the house for two lakhs, though it may not be worth two hundred rupees, or lose his right of shaffa. Whilst on the subject of devices, it is but right to say that there is one great Mahomedan lawyer who does consider that these devices are abominable. That lawyer is Mahomed, not the prophet, but the lawyer. But it has been ruled, and it will also be found in Harington''s Analysis, that the opinion of Abu Yousaff is entitled to greater weight than the opinion of Mahomed, and that the opinion of Hanifa is entitled to greater weight than the single opinion of Abu Yousaff or Mahomed; but where Abu Yousaff and Mahomed differ from Hanifa, their opinion will prevail.

There is another great Mahomedan lawyer, whose work has been translated by Mr. Perron into the French language, under the orders of the French Government. It is entitled Civil Jurisprudence of the Mahomedans." In page 423, Vol. IV of that work, the following passage occurs, which I translate from the French : The law of pre-emption does not arise, nor can it be exercised, except against the person who has become the new proprietor of that which appertained to one of the associates or co-partners, after that acquisition has been brought about by the exchange of one thing for another, or has been the consequence of the sale."

Again, returning to the Hedaya, we see how weak this right is. If the shafee die before a decree for possession is passed by the Kazee, his right of shaffa becomes absolutely extinct; if be die after the decree, although he has not got possession, because he has not paid the purchase-money {for he cannot get possession until he pays the purchase-money) the right devolves on the heirs.

This appears to me to show that this is not a right that attaches to the land, but is a personal right. It is clear then that this obligation is but a feeble one. Even under the Mahomedan law, it seems that it can be evaded by devices sanctioned by the great Mahomedan lawyer Abu Yousaff. We cannot, therefore, in justice, equity, and good conscience decide that a Hindu purchaser in a district in which the custom of pre-emption does not prevail as amongst Hindus, is bound by the Mahomedan law, which is not his law, to give up what he has purchased to a Mahomedan who derives the right of shaffa either in his capacity of co-sharer or neighbour. I fully concur in the judgment given by Mr. Justice Mitter.

Norman, J.

The point in this case is whether, if property is sold by a Mahomedan co-sharer to a Hindu, another co-sharer, being also a Mahomedan, has not a right of pre-emption without reference to the question whether the case arises in a district where Hindus have adopted the system of pre-emption.

In order to determine that question, it is necessary to consider what is the nature of the right of preemption which, according to Mahomedan law, is possessed by the co-sharers. It is one of a very limited character. It is defined shortly to be a right of possessing property on paying a sum equal to that which has been paid by the purchaser. It arises only on the completion of the purchase, and the cessation of the seller''s ownership in the subject of sale. The pre-emptor has no right to prevent his co-sharer from alienating to any one whom he pleases, if he does so otherwise than by way of sale, or exchange. The right exists, though the pre-emptor has, previously to the sale, refused to give to the seller the sum at which the purchaser has acquired the property, as appears from the opinions of the Mahomedan law officers of the Sudder Dewanny Adawlut, in case No. 9, Maonaghten''s Precedents, page 196.

In the Hedaya, Book XXXVIII, Chapter I, the arguments of the Schools of Shafei and the Hanifites respectively, as to the right of a neighbour to pre-emption, are discussed. Shafei is of opinion that a neighbour has not a right of pre-emption. He says : Shaffa relates to a thing "held in joint property, and which has not been divided off; when, therefore, the property has undergone a division, and the boundary of each portion is particularly discriminated, and a separate road assigned to each, the right of shaffa can no longer exist. Besides, the existence of the right of shaffa is repugnant to analogy, as it involves the taking possession of another''s property contrary to his inclination, whence it must be confined solely to those to whom it is given by the law.. Now it is granted particularly to a partner; bat a neighbour cannot be considered as such, ''for the intention of the law in granting it to a partner is merely to "prevent the inconveniences arising from a division, since if the partner was not to get that share which is the subject of the claim of shaffa, "a new purchaser might insist on a division; and thereby occasion to him a great deal of unnecessary vexation, &c." The Hanifites say : '''' The reason for establishing this "right in a partner is the circumstance of its being continually and inseparably adjoined to that of a stranger (viz., the purchaser), which is injurious to him, because of '' the difference, of a stranger''s disposition and so forth; and certainly greater regard is due to the partner than to the stranger who may have made the purchase, since the vexation that would ensue to the partner from forcing him to abandon a place which from long residence may have acquired his affections, would, doubtless, be greater than that to which the stranger is subjected, for though he may be thus dispossessed, contrary to his inclination, of a property on which be has acquired a right by purchase, yet still the grievance is but inconsiderable, since he is not dispossessed without receiving a due consideration; and as all these reasons equally hold on behalf of a neighbour, he is entitled to the privilege of shafee as well as a partner. The reason, moreover, on which Shafei grounds the right of a partner, and the distinction he makes between a partner and a neighbour, can by no means be admitted, since the inconveniences attending a division of property are allowed by the law, and are not of such a nature that the preventing of them should "justify the injury which must be committed in depriving another of his property contrary to his inclinations. The order in which we have "classed the persons entitled to the privilege of shaffa is founded on the precept of the Prophet, who has said: '' A partner in the thing itself has superior right to one who is only a partner in its appendages; and a partner in the appendage of the property precedes a neighbour.'' Besides, the conjunction occasioned by a partnership in the property itself is of all others the strongest; and next to it is that occasioned by a partner" ship in the appendages (since here the party participates in the immunities of the property which is not the case with a neighbour), and a superiority of right in every instance depends on the strength of the cause or fundamental principle. The vexations, moreover, and inconvenience arising from a division may be admitted as an additional argument, though it be not of such weight as to form a ground for "injury to another."

The right of pre-emption is apparently a right on the part of a partner in the property or its appendages, or of a neighbour, to the privilege of claiming a right of purchase as against a person to whom he objects as a partner or neighbour.

According to the principles stated by Mr. Burge, in his Commentaries on Foreign and Colonial Law, Volume IV, page 577, and the opinions of writers on that subject collected in the same book, Volume II, pages 844 and 845, and Story''s Conflict of Laws, section 427 note, the law of preemption must, I think, be treated as a real law, that is a law affecting and attaching to the thing itself. The liability to the claim of pre-emption is a quality impressed upon, and inherent in, the property which is subject to it; or, in other words, an incident of that property. That seems to me to be proved by the fact that the pre-emptor follows the property into the hands of the purchaser, and claims and enforces his right, notwithstanding that the property has passed from the vendor. It qualifies, and is an incumbrance on the power of disposition possessed by a Mussulman owner of property. If then we turn to section 15, Regulation VII of 1832, I think it cannot be said that a Hindu who has purchased from a Mahomedan vendor, against whom a claim of pre-emption is made by a co-sharer of that vendor, would, if the claim were allowed, be deprived of any property by the law or religion of the Mahomedans. He would be obliged to surrender the property simply because he has purchased a property having a particular quality or incident,--doubtless for a less price than he would have paid it if had not been subject to that incident. He has acquired an imperfect title. He has bought a right which cannot avail him, and ought not to be allowed to prevail against the prior right of the pre-emptor, subject to which he took the property.

In the case of Shah Muqbool Alum v. Ajoodhia Singh S.D.A. N.W. (1849) 137, it would appear that both the defendants, vendor and purchaser, alike were Hindus. I have no doubt about the justice, equity, and good conscience of the pre-emptor''s claims. In determining what passes by a sale, the enquiry must always be as to the extent of the power of disposition possessed by the vendor under the law which governs his acts, whether that be the lex loci rei sitoe, as is the case in the disposition of real property where there is a lex loci applicable; or his personal law, or the law of his domicile, where there is no lex loci applicable. Thus in Vattel''s Law of Nations, Book II, Chapter VIII, section III it is said: A foreign testator cannot dispose of goods, moveable or immoveable, which he possesses in his own country otherwise than in the manner conformable to the laws of the same country." The author goes on to point out how far he is bound by those laws which bear relation to his character as a citizen. He says : "A man who makes his will and dies in a foreign country, cannot deprive his widow of that part of his moveable effects assigned to that widow by the law of his country. A Genevan, obliged by the laws of his country to leave a portion of his personal property to his brothers or cousins, if they are his next heirs, cannot deprive them of it by making his will in a foreign country, while he continues a citizen of Geneva." In no case that I am aware of, where there is a conflict between the laws by which a vendor and purchaser are governed in ascertaining what passes by a sale, is reference made to any other laws than those which govern the vendor or the property. The question of the capacity of the vendee to take, which may sometimes arise, as for instance in the case of aliens or married women, is a totally distinct; question from those which relate to the capacity of the vendor to sell and the interest which passes from him by a sale.

In a case, where there is a right of pre-emption, the purchaser takes the property by a title defeasible on a particular event, subject to the incident that the co-sharers or neighbours may exercise the right of preemption. If that be so, it matters not in my opinion who is the taker, How can a Hindu, because ha is a Hindu, take the property free from the incidents to which it is subject? If he can take free from the liability to the pre-emptor''s claim, I do not see why he should not take it free from rights of way over it, without reference to the duties of the owner as to water or light or any other servitude to which it may have become subject in favour of the neighbour, while in the hands of the former owner.

In Dalrymple v. Dalrymple 2 Hag. Con. Rep. 61, Lord Stowell said, that "it is an indispensable rule of law, as exercised in all civilized countries, that a man who contracts in a country, engages for a competent knowledge of the law of contracts in that country. If he rashly presumes to contract "without such knowledge, he must take the inconveniences resulting from such ignorance upon himself." I think that, on the same principle, in a country like British India, where Hindus and Mahomedans are living side by side, each governed by their own personal law, a person of one persuasion dealing with a person belonging to the other, is bound to take notice of the law which regulates the extent of the power of disposition of property possessed by the person with whom he contracts. I think it clear, that a Hindu who purchases the property of infants from the elder brother in a Mussulman family, would not be allowed to contend that he acted in good faith, and did not know that the elder brother acting as guardian for the infants had not the same authority as the karta in a Hindu family possesses. If a Mussulman purchased property belonging to a member of joint Hindu family governed by the Mitakshara, I think he could not plead that he bought in ignorance of the provisions of that law, so as to give himself a title at the expense of the children or coparceners of the vendor. It would follow. I think, that a Hindu purchasing land from a Mussulman cannot plead ignorance and say he purchased without notice of the existence of rights of pre-emption. Suppose there were an express contract between two co-partners in a piece of land, a tea garden or silk factory, that if either desired to sell he should not do so except with the consent of the other; and that if either of them did sell to any person without first obtaining such consent the other should have the right of re-purchase from the vendee on paying him the price agreed on. It is not denied that if any person with notice of this agreement were to purchase from one of the parties, without first getting the consent of the other co-sharer, he would make himself liable to reconvey on a tender of the price being made to him by such other co-sharer. Why should it make any difference that the mutual obligation of the two parties towards each other is created not by contract, but by a law by which both the partners are bound?

It is a clear principle of equity, that if the property of a seller is held by him subject to any charge, liability or obligation, whether created by covenant or existing by law, in favour of a co-sharer in the same land, any person purchasing the property with notice of the existence of such a charge or obligation would be bound to the same extent as the person from whom he bought. A covenant by the owner of land with the purchaser from him of adjoining land, that the former shall not be built on or used in a particular way, is held to bind the land in the view of a Court of Equity, and where a person has purchased with notice of the covenant, it will be enforced against him. Thus in Whatman v. Gibson 9 Sim. 196 A, the owner of a piece of land divided into lots, for building a row of houses, sold off lots, covenanting with the purchasers, and the purchasers in each case covenanting with him and with each other, reciprocally, that none of the proprietors of any of the lots should carry on thereon the business of an inn-keeper. C, who had purchased a lot from A on these conditions, sold his lot to the defendant, who bought with notice of the covenant. The Court, on the application of the plaintiff, a person who had purchased one of the lots from B, another of the original purchasers, granted an injunction to restrain the defendant from using his house on the lot bought by him as an hotel. The same point was decided in Mann v. Stephens 15 Sim. 377, which was affirmed on appeal by the Lord Chancellor. The case of Whatman v. Gibson 9 Sim. 196 was followed by Vice-Chancellor Wood in Cole v. Sims 23 L.J. Ch. 37 affirmed on appeal by the Lords Justices 23 L.J. Ch. 258, and by Lord Chelmsford, C, in Western v. McDormott 36 L.J. Ch. 76. These cases, when examined, resemble the present in this respect. There, as here, the obligation was reciprocal. If that is the case, it seems to me to make no difference in the eye of a Court of Equity, whether the obligation arises out of contract, as in the cases I have cited, or is created by operation of law, as in the case we are now considering. The case of Tulk v. Moxhay 2 Phillips 774 goes further. There E, the purchaser of a piece of ground, had covenanted not to build on it, to keep it, with an iron railing round it, as a pleasure ground, and that the plaintiff and his tenants might have the privilege of admission to it as a pleasure ground. The defendant who had purchased from E, with notice of the covenant, was restrained by injunction from using the land as building ground. Lord Cottenham says: "I consider this piece of land as purchased subject to an equity created by a party competent to create it, and "the defendant took with distinct knowledge of such equity existing, and such equity ought to be enforced against him." He says, in another place, the Court has always acted on this principle. You who have the property are bound by the principles and laws of a Court of Equity to "submit to the contract you have entered into; and you will not be permitted to hand over that property and give to your vendee a higher title with regard to interest as between yourself and the vendor than you yourself possess." In the case of Tulk v. Moxhay 2 Phillips 774, a species of interest in the land to which the covenant related was given to the covenantees, but such was not the case in Jay v. Richardson 31 L.J. Ch. 398, in which the rule of equity stated in Tulk v. Moxhay 2 Phillips 774 was applied by Lord Romilly. There the covenant enforced was not to let any land for the erection of a hotel within a quarter of a mile of a hotel called the Queen''s Hotel built on land demised by the original covenanter for that purpose.

I now propose to consider the authorities having a direct bearing on the case before us. There is a case of Gholam Nobby Chowdhry v. Gour Kishore Rai 1 Sel. Rep. 350 : 6 I.D. (O.8.) 343, a case from Dacca, in which the vendor and the pre emptor were Mahomedans, and the purchaser a Hindu. The suit of the pre-emptor having been dismissed in the Zilla Court, and such dismissal having been confirmed by the Provincial Court, the Sadder Dewanny Adawlut, one of the Judges being Mr. J. H. Harington, with a view of ascertaining the Mahomedan law applicable to the case, referred the proceedings to their Mussulman law officer, with certain questions, and eventually determined that the appellant was legally entitled, by right of pre-emption, to purchase the lands in dispute. In the case of Sakina Khatun v. Gauri Sankar Sen 5 Sel. Rep. 300 : 7 I.D. (O.S.) 598, a case is noted,--a decision of the Provincial Court of Dacca, in which a claim of pre-emption in right of joint ownership was enforced, the plaintiff and also the vendor being Mussulmans, and the defendant, the vendee, a Hindu. I have endeavoured to show that these cases were decided upon sound principles of equity : I think I may presume that they must have been accepted and acted on as law down to the time of the decision to which I am now about to advert. In the case of Dewan Munwar Ali v. Syed Azhurooddeen Mahomed 5 W.R. 270, a Division Bench of this Court decided that the right of a Mahomedan against the defendant, a Hindu purchaser, '' can only be enforced after proof of the right or custom of pre-emption existing generally in cases in which Mahomedans are not or are only partially concerned in the Zilla of Tippera, as laid down by this Court "in the case of Fukeer Rawot v. Shaikh Emambuksh Case No. 1116 of 1861; dated 28th September 1863 (B.L.R. Sup. 35)." It cannot be considered a judgment of the Court, for the learned Judges do not discuss the question or express any independent opinion of their own,--it is simply a mistake made by the two learned Judges in supposing that the point was decided in the Full Bench case, which, on referring to the decision in the Full Bench case of Fukeer Rawot v. Shaikh Emambuksh Case No. 1116 of 1861; dated 28th September 1863 (B.L.R. Sup. 35), it clearly was not. In Sheraj Ali Chowdhry v. Rumzam Bebee 8 W.R. 201, the learned counsel seems not to have brought to the notice of Kemp and Glover, JJ., the cases of Gholam Nobby Chowdhry v. Gour Kishore Bai 1 Sel. Rep. 350 : 6 I.D. (O. S.) 343 and Sakina Khatun v. Gauri Sankar Sen 5 Sel. Rep. 300 : 7 I. D. (O.S.) 598. The Court say they cannot depart from the principle laid down in a long current of decisions; that unless a prescriptive usage and local custom is clearly established, a Hindu defendant is not bound by the Mahomedan law in a case involving the right of pre-emption, which is a right unknown to Hindu law. But it appears to be a mistake to say that there was any such current of decisions as supposed. Now that the cases have been carefully examined, it appears that the case of Dewan Munwar Ali v. Syed Azhurooddeen Mahomed 5 W.R. 270 is absolutely the first in which it has been held that a Hindu purchaser from a Mussulman co-sharer does not take subject to the right of pre-emption. In the case of Bahoo Mohesh Lall v. J. Christian 8 W.R. 446, the plaintiff and the vendor defendant were Hindus, of a class which had adopted the custom of pre-emption. The defendant was a Christian. I cannot make out exactly how the learned counsel put the case in argument, or what was the objection which the Court overruled. I have reason, however, to believe that Mr. Justice Phear thinks this case distinguishable, and that he does not consider that he has decided the point now before us. I only desire to make one observation upon it. It appears to me impossible to suppose that in passing Act IV of 1837, empowering all subjects of Her Majesty to hold lands in any part of the territories of the East India Company, it could ever have been intended that they, in purchasing such lands, should acquire a stronger title than would have been acquired by native purchasers from a vendor of the same religion as himself. The second section of the Act seems expressly to provide against anything of the sort- I do not understand why the right should be disallowed on account of its so-called weakness. What is called the weakness of the right is rather a reason for allowing it to be claimed as against a person taking with notice of it, than for treating it as one which in justice, equity, and good conscience ought not to be allowed, because it goes to show that the right is one the burden of which is Dot intolerable.

The result is that, both on principle and on the authority of the older cases on this subject, which apparently have stood as the law of the country for the last fifty years, and were apparently not considered, and certainly were not expressly overruled in either of the later cases, I am of opinion that whenever a Mussulman co-sharer or neighbour has a right of pre-emption when property is sold by his neighbour or co-sharer, his right is in no way affected by the fact that the purchaser is a Hindu.

I am of opinion that the question proposed must be answered in the affirmative.

Macpherson, J.

In my opinion, when the person claiming the right of pre-emption is a Mahomedan, and the vendor also is a Mahomedan, the right is not defeated by the mere fact that the purchaser is a Hindu, even although it is not proved that the Mahomedan law as to pre-emption has been adopted as a custom by the Hindu of the district.

The point referred has never, up to the present time, been authoritatively decided by any Court. It is true that there are two recent cases in which it has been held that there is no right of pre-emption under such circumstances. These cases are : Dewan Munwar Ali v. Syed Azhurooddeen Mahomed 5 W.R. 270, decided by Mr. Justice Trevor and Mr. Justice Glover, and Sheraj Ali Chowdhry v. Ramzan Bebee 8 W.R. 204, decided by Mr. Justice Kemp and Mr. Justice Glover. As expressions of the individual opinions of my learned colleagues, these decisions are entitled to the highest respect, but as authorities, their importance is much weakened by the fact that no reason is assigned by the learned Judges for the conclusion at which they arrived, save one which was founded upon the belief that a state of things existed which, in truth, did not exist.

The decision in Dewan Munwar Ali v. Syed Azhurooddeen Mahomed 5 W.R. 270 rested solely on the assumption that it had already been decided by this Court in the case of Fukeer Rawot v. Shaikh Emambuksh Case No. 1116 of 1861, dated 28th September 1863 (B.L.R. Sup. 35) that a Mahomedan has not the right of pre-emption where the vendor is a Mahomedan and the purchaser a Hindu, unless it is proved that the preemption law has become a custom of the district among Hindus. And in Sheraj Ali Chowdhry v. Rumzan Bebee 8 W.R. 204, the Court, after stating that the Principal Sudder Ameen had found that no local custom had been proved whereby Hindus of the district were bound by the Mahomedan law of pre-emption, said: "Unless such custom be proved, this Court cannot depart from the principles laid down in a long current of decisions, that unless a prescriptive usage and local custom is clearly established, a Hindu defendant is not bound by the Mahomedan law "in a case involving the right of pre-emption."

Mr. Money has, I think, shown conclusively that there is no current of decisions on the point at all; and that it was not even touched by the decision in Fukeer Rawot v. Shaikh Emambuksh Case No. 1116 of 1861; dated 28th September 1863 (B.L.R. Sup. 35). That case came before a Full Bench, the question referred being, whether, when a right of pre-emption is claimed and admitted among Hindus, the exercise of "the right is to be regulated by Mahomedan law?" The Court hold that in districts where the existence of a right or custom of pre-emption has not been judicially noticed, the custom will be matter to be proved; and that the custom, when it exists, must be presumed to be co-extensive with the Mahomedan law on the subject, unless the contrary is shown. The question of a Mahomedan''s right of pre-emption as against a Hindu purchasing from a Mahomedan was never alluded to; and the decision of the Full Bench has absolutely no bearing upon it. It is clear that the decision as to the nature of the right in a case in which the right is claimed and admitted by Hindus, has nothing whatever to do with the point at issue, which only arises when a Mahomedan claims the right, the vendor is a Mahomedan, and the purchaser is a Hindu who denies the existence of the right. It may be very true that a Hindu cannot claim the right of pre-emption, unless he proves that by custom he has that right, and it may be none the less true that when a Hindu buys from a Mahomedan, another Mahomedan may have the right of pre-emption as against him. The two questions rest on wholly distinct principles.

With the exception of two oases against a Christian purchaser to which I shall hereafter refer, the other cases, which are supposed to decide that, in such a case as the one before us, the plaintiff must prove the existence of a custom among Hindus, go no further than the Full Bench went in Fukeer Rawot v. Shaikh Emambuksh Case No. 1116 of 1861; dated 28th September 1863 (B.L.R. Sup. 35).

In Inder Narain Chowdhry v. Mahomed Nazuruddin 1 W.R. 234 and 5 W.R. 237, I find from the original paper books, to which I referred during the course of the argument, that the plaintiff who claimed the right of pre-emption was a Mahomedan, while both the vendor and the purchaser were Hindus; and such also was the state of the case in Jameelah Khatun v. Pagul Ram 1 W.R. 251 and in Madhub Chunder Nath Biswas v. Tamee Bewah 5 W.R. 279, in which last case the judgment commences by stating that the parties to the suit were Hindus. To all these cases the principle of the decision in Fukeer Rawot v. Shaikh Emambuksh Case No. 1116 of 1861; dated 28th September 1863 (B.L.R. Sup. 35) applied, and it was properly held that the custom must be proved. In the case of Moonshee Hubbeebul Hossein v. Lalla Dewkee Nundun W.R. (1864) 74, the facts are not stated with sufficient accuracy to show whether it bears on the point or not, because it does not appear whether the vendor was a Hindu or a Mahomedan. I have caused search to be made for the papers in this case also; but I find that the grounds of special appeal alone remain in the record-room, and they give no information. As it stands, the case is valueless as an authority one way or the other.

There remain two cases in which it is said that the question has been expressly decided. While I admit they come very near it, I doubt whether those cases do, in truth, decide the point now before us. In Baboo Mohesh Lall v. Christian 6 W.R. 260, and the same case on a later appeal 8 W.R. 446, Bayley, Shumbhoo Nath Pundit, and Phear, JJ., have held (in a suit in which the person claiming the right of pre-emption was a Hindu, the vendor a Hindu, and the purchaser a Christian) that the right does not exist as against a Christian in the absence of proof that the Christians of the district have, as well as the Hindus, adopted the custom. No doubt this decision very closely approaches the question. But inasmuch as it is only by reason of local custom that the law as to pre-emption ever exists among Hindus as part of their law, the right having no existence by the general Hindu law, it appears to ma that other considerations are introduced into the case, and may have weighed, and probably did weigh, with the Judges, besides those which alone exist where the vendor is a Mahomedan, and the claimant also a Mahomedan.

There is an old case, Gholam Nobby Chowdhry v. Gour Kishore Rai 1 Sel. Rep. 350 : 6 I.D. (O.S.) 343, which is relied on by Mr. Money as being an authority in his favour. It cannot be said to be exactly an authority in his favour; but so far as anything is decided in it, it is by no means adverse to him. The parties were in the same position as those before us,--a Mahomedan claimant of the right, a Mahomedan vendor, and a Hindu purchaser. The question as to whether the purchaser, being a Hindu, could be affected by the Mahomedan law of pre-emption, does not seem to have been expressly raised. But, on the facts, the claimant was declared by the Mahomedan law officers and the Court to have the right of pre-emption, and he got a decree accordingly. The case shows that though there was much argument and discussion, and more than one suit, it never was suggested that the fact of the purchaser being a Hindu was any protection to him.

On the whole, I think the question must be taken to be before us now as one in which practically there have been no authoritative decisions.

Looking at it apart from any express decisions of the Courts, it appears to me that where the vendor is a Mahomedan, the right of pre-emption may exist in a Mahomedan, notwithstanding that the purchaser is a Hindu, and notwithstanding that no adoption of the law, so as to make it a custom of the Hindus of the district, is shown. And I think this is so, whether the right is claimed on the ground of partnership, or on, the ground of vicinage.

Treating the matter as one of pure Mahomedan law, it cannot be questioned that this is the proper view of it; because, according to Mahomedan law, the rules as to pre-emption prevailed not only as regards Mahomedans, but as regards all persons of whatever belief. But it is a different question in our Courts, where, although the right of pre-emption has always been treated as an incident to property held by Mahomedans, the right has been recognized and given effect to, not so much because it was a part of the Mahomedan law, as because it was in accordance with the principles of justice, equity, and good conscience that it should be given effect to.

The right (which exists while the property remains with the Mahomedan proprietor, but which cannot be exercised so long as no sale is made) is the right to purchase the property from the purchaser to whom it has been sold; and the person who takes the property by virtue of his having, exercised the right of pre-emption, takes under or through the first purchaser, and not direct from the original vendor. The property is in fact sold by the original vendor subject to the liability to be taken from the purchaser by any person entitled to the right of pre-emption, and it cannot be sold otherwise.

I fully admit that the right of pre-emption cannot be exercised until the Bale is absolutely complete, so far as the interest of the vendor is concerned. That this is so, and that the pre-emptor takes, not direct from the original vendor, but through the purchaser, appears clearly from the Hedaya, and from Baillie''e digest of Mahomedan law, page 471, and the following pages. The law of the Sheea sect seems to be the same as is shown in a new digest of their law, which has just been published by Mr. Baillie (pages 175, 185).

This being the general nature of the right of pre-emption, and the Courts having adopted the Mahomedan law regarding it, so far as to apply it among Mahomedans, and having thereby declared that Mahomedans hold property subject to it, why should the application of the law be limited to cases in which the purchaser is not a Mahomedan? Although all that the person claiming the right of pre-emption can have is the right to purchase from the first buyer, still he has that right, because the liability to the claim of the pre-emptor is an incident to the ownership of the property in the bands of the Mahomedan vendor; and so far as the vendor is concerned, he cannot get rid of that incident, unless perhaps by one of the so-called frauds which the Mahomedan law itself suggests. It seems to me that a person purchasing from a Mahomedan, who holds the land subject to this liability, in the event of his selling it, must be deemed to take with notice of the liability or legal incident. Is it then not consonant with justice, equity, and good conscience that the right should be recognized and enforced as against a purchaser, merely because be happens not to be a Mahomedan? If be were a Mahomedan, it would be enforced, why should it not be so, merely because he is a Hindu? In either case the land was held by the vendor subject to the right of a third party to insist on being allowed to become the purchaser if he (the vendor) should ever sell to another. As the purchaser must be taken to have notice of the right, how can the right be destroyed merely because the purchaser is a Hindu? The vendor possessed the property not absolutely, but subject to the right of pre-emption; and he cannot pass to a purchaser with notice a better title than he himself had. If it is consonant with justice, equity, and good conscience to enforce the law of preemption among Mahomedans, it is equally consonant with justice, equity, and good conscience to enforce it as against those who buy from Mahomedans whom they knew to hold the property subject to that law.

If every Mahomedan originally, according to Mahomedan law, held his lands subject to the right of pre-emption, and if our Courts have chosen to recognize and enforce that rule when Mahomedans only are concerned, the Courts ought, on principle, equally to recognize it when the other parties being Mahomedans, a Hindu is the purchaser. The purchaser with notice of such a liability has no claim to special consideration or sympathy; and to hold that, because the sale is made to him instead of to a Mahomedan, the liability is at an end, is to provide for Mahomedans a means of, in all cases, evading the law. If the object and reason of the law of pre-emption be considered, it is evident that if the law is to be applied in the case of sale to a Mahomedan, a fortiori ought it to be applied in the case of a sale to a Hindu, because the sale to a Hindu must necessarily be much more likely to be offensive and injurious to a Mahomedan in the enjoyment of his property, than would be a sale to a Mahomedan. There is much that is absurd and vicious in the Mahomedan law as to the modes of evading the exercise of the right of pre-emption. Nevertheless, that the right has much in it to recommend it to the people of this country sufficiently appears from the number of districts, comprising probably more than of half of Bengal, in which the Hindus have adopted the law regarding it as part of their own law.

It does not appear to me to be material that the pre-emptor takes through the first purchaser, and not from the original vendor direct. Because, whatever the precise nature of the right may be, in other respects the Mahomedan owner held the property subject to the right of the person entitled to the right of pre-emption to buy the property and get possession of it as soon as the owner should have sold it to a third party. As the right is enforced when all concerned are Mahomedans, not so much merely because it is Mahomedan law, as because it is consonant with justice, equity, and good conscience, it ought, in my opinion, to be equally enforced when the purchaser is a Hindu. It is no defeating of vested rights, when the purchaser, whether a Hindu or not, is compelled by the pre-emptor to surrender the property, for the purchaser never had any vested right that was not subject to the right of pre-emption. In no other view of the case have our Courts acted rightly in enforcing the right even as among Mahomedans.

The question has been put to us with reference to the case in which the right is based on partnership, and also with reference to the case in which it is based on vicinage. My answer would be the same in both cases, because the principle which applies to the right, if based on partnership, seems to me to be the same as regards the right when based on vicinage. The latter is, no doubt, for the weaker right, and the exercise of it should be strictly guarded. Still it does exist in certain cases by Mahomedan law, and when it does exist, it should be enforced against any purchaser against whom the stronger right based on partnership could be enforced.

Peacock, C.J.

I concur in the view which has been so forcibly and clearly expressed by Mr. Justice Mitter, and I am of opinion that this question must be answered in the negative. I must confess that when I came into Court before the case was argued, and even after I had left the Court, my opinion inclined in favour of answering the question in the affirmative. I then considered that the right which is claimed by the plaintiff depended on a defect of title on the part of his co-partner to sell his share of the property except subject to the right of the plaintiff to purchase it, that is to say, to his right of pre-emption. But I am now satisfied that the right claimed by the plaintiff does not depend on any defect on the part of his co-partner to sell, but upon a particular rule of the Mahomedan law, by which neither the defendant nor the Court is bound. The Mahomedan law is not the law of British India. It is only the law so far as the laws of India have directed it to be observed. We are not bound by all the rules of the Mahomedan law which are in force under Mahomedan Governments, nor by the law as laid down by the Fatwa Alumgiri, the digest of Mahomedan law, prepared under the Emperor Aurungzebe Alumgir. We are bound by Regulation IV of 1793, except so far as that law has been modified by Regulation VII of 1832. Section 15 of the former Regulation enacts, that in suits regarding succession, inheritance, marriage, and caste, and all religions usages and institutions, the Mahomedan laws with respect to Mahomedans, 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."--If one of two brothers of a joint Hindu family governed by the Mitakshara law, were to die, the property would survive to the surviving brother, and the widow of the deceased, although she would be entitled to maintenance, would have no right to the property by inheritance from her deceased husband. If the widow should sell her husband''s share in that property to a Christian, the share of her deceased husband would not pass, according to the Hindu law. She would have no right to sell what, according to the Mitakshara law, she did not take by inheritance. If the surviving brother (in a case where he could sell, if there were no heirs, and the property was self acquired) should sell to a Mahomedan, the property would pass to the Mahomedan; and in a suit between Christian and a Mahomedan relating to this property, although neither of them were a Hindu, we should have to look to the Hindu law, by virtue of this Regulation, to ascertain to whom the property belonged. So we should have to look to the Mahomedan law, if a Mahomedan claiming to be heir to a deceased Mahomedan, should sell the property of the deceased to a Christian, and another person also claiming to be heir of the deceased should sell to a Hindu. But that would be because the Mahomedan law in that case would regulate the right of the vendor to sell, inasmuch as it regulated the right of the vendors with regard to the descent. But the right of pre-emption is not a right depending on the Mahomedan law of succession, inheritance, marriage or caste; and it is not a law depending on any religious usage or institution; and I apprehend that a Hindu purchasing from a Mahomedan co-parcener would not be bound by the Mahomedan law of pre-emption any more than a Hindu would, upon purchasing from a Mahomedan, be bound by the Mahomedan law of pre-emption depending upon vicinage.

When Mr. Barge speaks of the law of pre-emption as vesting a real right, that is to say, a right attaching to the land, I think be could not be speaking of the Mahomedan law of pre-emption. I find from what Mr. Justice Norman now tells me that that was merely an inference which he drew from what Mr. Burge said.

It is clear that the Mahomedan law of pre-emption, as regards vicinage, does not depend upon contract; neither does the Mahomedan law of pre-emption, in respect of co-parcenary, depend upon contract; for it seems that if there are several co-parceners, and one of them sells his share, any one of the other co-parceners may institute proceedings. But he would not institute the suit by virtue of a contract made by the vendor with him. There was no more contract with him than with the other co-parceners. If there were a contract, it would be proved, and if there were an implied contract, it would be made with the whole of them, and not with that one of them who should first institute proceedings. If we were living under a Mahomedan Government, the right of pre-emption, as pointed out by Mr. Justice Kemp, would not depend on the party''s being a Mahomedan, for the Mahomedan law, as administered by a Mahomedan Government, would give the same right to a zimmee, or an infidel, co-parcener as to a Mahomedan. It would give the same right to a Hindu co-parcener against a Hindu co-parcener, and to a Hindu co-parcener against a Mahomedan co-parcener. Islam, on the part of the pre-emptor, is not a condition under the Mahomedan law. So that zimmees are entitled to exercise the right of pre-emption as between themselves or against Moslems."--Baillie''s Mahomedan Law, page 473.

It has been held that, in the absence of a custom extending the law of pre-emption to the Hindus of a particular district, a Hindu has not a right of pre-emption against a Mahomedan. If, then, we do not administer the Mahomed an law to the same extent as a Mahomedan Government would have administered it in favour of a Hindu against a Mahomedan, or a Hindu against a Hindu, in a district where there is no custom, it shows that the Mahomedan law in this respect, as administered by a Mahomedan Government, is not the law which would be administered by the Courts of this country. If we were to administer the Mahomedan law of pre eruption as we find it laid down in the Mahomedan law books in favor of a Mahomedan against a Hindu, because the vendor was a Mahomedan, as well as the person claiming pre-emption, we should not be doing equal justice if we were to refuse to administer the Mahomedan law as a Mahomedan Government would have administered it in favour of a Hindu against a Mahomedan.

I have shown, I think, that the law of pre-emption is no part of the Mahomedan law of inheritance or succession. Mr. Justice Mitter has shown most clearly that the sale by a Mahomedan co-parcener passes property to a Hindu, as well as it would have passed the property to a Mahomedan. The Hindu has acquired a right by the purchase. By what law is that Hindu to be deprived of that right of property? There was no defect of title on the part of the vendor to sell. His interest passed. Then, is the Mahomedan law which allows the right of preemption for the sake of preventing inconvenience, the law which, under the British Government, is binding on a Hindu? It is no part of the Mahomedan law which has been extended to this country, and by which Hindus are bound. Has, then, the Mahomedan co-parcener a right in equity to deprive the Hindu purchaser of that right which be gained by his purchase?

Section 9, Regulation VII of 1832, speaking of the rules in Regulation IV of 1793, makes the following declaratory enactment: 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 to 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 shall be of different persuasions, where one party shall be of the Hindu, and the other of the Mahomedan persuasion, or where one or more of the parties to the suit shall not be either of the Mahomedan or 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 such laws, they would have been entitled."

If a Mahomedan purchase from a person claiming to be the heir of a Hindu, his right of property depends upon the title of his vendor, He would acquire by purchase from his vendor the right which his vendor had, and if the vendor had no right by inheritance under the Hindu law, the purchaser would gain no more right than be would have acquired if he had purchased from any other person. In holding that the Mahomedan did not acquire a right by purchase if his vendor had no right to the property according to the Hindu law of inheritance, the Court would not be depriving the purchaser of a right which he would have gained, but for the operation of such laws, because if the Hindu law had been out of the question altogether he would have gained no right by purchasing from the supposed heir. It is by virtue of the Hindu law of inheritance vesting the property in the Hindu heir that a purchaser, whether a Mahomedan, or of any other religion, acquires a right of property. But that is not the case, as already shown, with reference to the Mahomedan law of pre-emption. A Hindu has, by his purchase from a Mahomedan, acquired a right of property. The question is, is he to be deprived of that right by the Mahomedan law of pre-emption? The Regulation says: "Where the parties are of different religions,. the laws of those religions are not to operate to deprive such party or parties of any property, which but for the operation of such laws they would have been entitled to." Now the Hindu in this case would have been entitled to the property but for the operation of the Mahomedan law of pre-emption, it appears to me, therefore, that to enforce the law of pre-emption against the Hindu would be to deprive him of property in favor of a Mahomedan, which, but for the Mahomedan law, the Mahomedan could not have taken away from him. Is there any justice, equity, or good conscience under which he ought to be deprived of that property which be legally acquired?

The Mahomedan law, as has been already shown by Mr. Justice Kemp and Mr. Justice Mitter, admits of all kinds of devises for the purpose of frustrating its own law. If there is a bona-fide sale between a Mahomedan 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 Mahomedan 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.

Again, if this right depended on a contract between the Mahomedan vendor and the Hindu purchaser, and the Mahomedan vendor had actually bound himself by contract to his partners not to sell except subject to the right of pre-emption, we should not I think allow such a device to evade the contract; but if we are to administer the Mahomedan law, and not the law which we administer in these Courts, we shall be precluded from entering into the question whether this were a device or not to get rid of the contract. It strikes me that we should not, by so doing, be administering equity, justice or good conscience.

In the digest of Mahomedan law by Mr. Baillie, which is taken substantially from the Fatwa Alumgiri, it is laid down in page 505, that when a purchase is intended for a hundred dirhems, it may he made openly for a thousand or more, and then the purchaser may give the seller a piece of cloth, of the value of a hundred, in lieu of the price; whereupon, if the pre-emptor shall come to make his claim, he must take the purchase at the ostensible price, which its magnitude disinclines him to do." AH that they have to do to evade the law of pre-emption as regards a piece of laud worth 100 rupees is to sell it for a lakh of rupees and pay only 100 rupees, and a Court administering the Mahomedan law would not allow pre-emption except at the price of a lakh, and this Court, if it is bound to administer the law, must also allow itself to be deceived by such a device, and hold it to be valid. Mr. Baillie proceeds to say : The seller and purchaser may declare that the sale was invalid or a tuljeea, or with a condition of option to the seller, and their declaration must be accepted, which being the case, there is no room for a claim of pre emption;" so that when property has passed, they have only to declare that it was a mere fiction, and this Court must hold that they have a right to declare it to be a tuljeea, or invalid notwithstanding the evidence shows clearly that it was a sale intended to take effect. I should regret very much if I were bound to administer such law in this Court. If I were to allow a man who had sold his property for 100 rupees to say that he had sold it for a lakh, and if I were bound to be deceived by that device, and not allow the real question of fact to be enquired into, it appears to me that I should be administering a law which it was never intended by the Government of this country that their Courts should administer.

For these reasons I am of opinion that the Hindu purchaser was not bound by the Mahomedan law of pre-emption in favor of a Mahomedan co-partner, although he purchased from one of several Mahomedan co-parceners; and in the other case, I hold that a Hindu purchaser is not bound by the Mahomedan law of pre-emption, on the ground of vicinage, which may also be evaded in the manner pointed out by Mr. Justice Kemp, by reserving an inch of land between the land sold and the land claimed by the vendor. These cases will be sent back to the respective Division Benches which referred them, with this expression of our opinion. There will be no costs of this reference.