Syed Wajid Ali Khan vs Lala Hanuman Prasad and Others

Glover, J.—This was a suit to declare the plaintiff''s right of preemption as a shafee khalit in an eight-anna share of Mauza Hajujipore. The Court of first instance gave him a decree, but the Subordinate Judge threw out his claim on three grounds : 1st, because the suit was undervalued; 2ndly, because the property had been divided into two separate estates, and plaintiff was, therefore, not a shafee khalit, or partner, in the thing sold; and, 3rdly, because the ceremony of tulub-ishhad had not been properly performed. In special appeal exceptions are taken to the Subordinate Judge''s finding on all these points. The argument, however, has been chiefly confined to the second, and it will be convenient to take that first in order.

We were a good deal pressed by the special respondent''s pleader as to the form in which the plaintiff had brought his suit, and it was argued that his status, according to his own explanation of it, was not that of a shafee khalit, which means a partner not in the thing sold, but in its appendages or rights. If he had any right at all, it was either as shafee sharik (partner in the thing sold), or as shafee-jar (neighbour), in neither of which capacities had he come forward.

It appears to me, after going through the record, that what the plaintiff did substantially ask was to have his right of pre-emption declared on the ground that he was a partner in the thing sold. No doubt there has been some confusion caused by the way in which the Arabic terms have been employed, and strictly speaking the plaintiff''s claim, as I understand it, would be that of a sharik or partner in the thing sold, and not that of a khalit, or partner in its rights only. This mistake in the wording of a claim to pre-emption is not uncommon. Indeed the term shafee khalit is, so far as my experience goes, generally, although wrongly, used to describe one who claims as partner in the thing actually sold. And that the plaintiff''s intention was to claim on this ground, is I think clear from the issue that was drawn up by the first Court, which was, whether there had or had not been a partition of the property into two estates, this being the defence set up by the vendee. The difficulty on this point has been increased by the first Court''s mistake in using the word khalit instead of sharik, but there can be no doubt, I think, that the decision in favor of the plaintiff was come to by the Moonsiff, on the ground that the defendant had failed to prove that the property had been divided. The words pre-emptor by contiguity" are improperly entered in the translation. There are no such corresponding words in the original, and the whole tenor of the Moonsiff''s judgment is against the supposition, that he decided on the ground that the plaintiff was a shafee-jar.

The objection in special appeal to the Subordinate Judge''s finding on this issue, is that he has reversed the decision of the lower Court on what was not evidence. What the Subordinate Judge has gone upon is the collectorate record, which proves (and indeed that fact is not denied) that the rent of the property was collected by the parties in separate accounts in shares of eight annas each. Now it is argued that this would only prove a division of rents, and would not establish the fact of a mutual partition between the co-sharers. I do not see how the judgment of the lower appellate Court on this point can be said to be wrong in law, it is not necessary, according to Mahomedan law, that a partition should be made by decree of a Judge. Any mutual separation and partition would do away with the right of preemption, and where two parties give separate kabuliats, in which their shares are described, and sue and get decrees against ryots for their separate shares of rent, I do not think that the inference is either an illegal or unfair one that the property has been mutually partitioned. If the separation in this case had been merely one of rents, of course that would have been a very different thing; but each shareholder is described as holding an eight-anna patti, or separate estate, and the plaintiff in his written statement calls his eight annas his milkiat," and the other half the milkiat" of the vendor. I do not see, therefore, how we can, in special appeal, interfere with the finding of the Subordinate Judge on the question of partition,--it is a question of fact.

Under ordinary circumstances the case might stop here, but as the Subordinate Judge has, in my opinion, fallen into an error of law on the other two points involved in this special appeal, it will be as well to point them out to him, even though they will have no effect on the decision of this appeal.

And, first, as to the question of under-valuation, the first Court tried the issue and found in favor of the plaintiff, and if the Subordinate Judge thought the Moonsiff wrong, he ought, at least, to have given the plaintiff the option of supplying the necessary stamps, as the first Court would have done u/s 31 of the Civil Procedure Code. If there was an error in valuation, it was an error of the first Court, and the plaintiff should not have been made to suffer. But in any case the question was not one that should have subjected the first Court''s order to reversal, even if that order were wrong. Section 350, Code of Civil Procedure, lays it down very clearly, that no decision of a lower Court shall be reversed on appeal on any point not affecting the merits of the case or the jurisdiction of the Court.

Then as to the non-performance of the tulub-ishhad the Subordinate Judge thinks that this ceremony can only be performed by the pre-emptor in person, and cannot be done through an agent. We have not been referred to any authority for this dictum, and the law is otherwise enunciated in Mahomedan Law Books. In Baillie''s Mahomedan Law, page 483, I find that the personal performance of the tulub-ishhad, by the pre-emptor, depends on his ability to perform it. and that this ceremony is valid if done by means of a letter or messenger. It may very well be that a pre emptor is incapacitated by distance or illness from himself attending on the seller and declaring his right and intention to purchase. In Macnaghten''s Mahomedan Law, page 182, a similar rule is laid down, viz., that a pre-emptor may depute an agent if he is at a distance and cannot afford personal attendance.

I think that the special appeal should be dismissed with costs.

Kemp, J.

I concur with Mr. Justice Glover that, looking to the substance of the plaint, the pleadings in the suit, and the issue tried, the plaintiff, special appellant, claimed his right of shaffa as a partner in the property (in this case land) sold, and not as a partner in the immunities and appendages of the law, such as the right to water and to roads 3 Hedaya, 562; but I cannot concur with my learned colleague in finding that any mutual separation or partition has been made between the parties whereby the plaintiff''s right of pre-emption is lost to him.

Suits claiming rights of shaffa must be tried strictly according to the Mahomedan law, the right being a creation of that law. Now, the right of shaffa, or pre-emption, relates to a thing held in joint property, and: which has not been divided off Ibid, 363. When there has been a division, and the boundary of each partner is discriminated, the right of shaffa can no longer exist" Ibid, 363. In this case there has been no such division "discriminating the boundary of each partner." The plaintiff and his co-pattidars have, for tehsil (collection) purposes, collected their rents and taken kabuliats from their tenants in proportion to their respective interests in the whole estate, but there has been no division, no separate and distinct record of shares. The plaint states that the milkiat, or property, of the plaintiff is represented by an eight-anna patti, but there is no allegation of a formal separation of shares; and it was on this very question of division or no division that the parties went to trial.

The intention of the Mahomedan law in granting the right of shaffa to a partner is to prevent the inconvenience arising from a division, for if a party were not to get that share which is the subject of the claim of shaffa, a new purchaser might insist upon a division, and thereby occasion to him a great deal of unnecessary vexation 3 Hedaya, 563. It is well known that both in the Behar Province, from which this suit comes, as also in Bengal, joint proprietors collect according to their shares in the whole estate, although no formal division has taken place. Pattas and kabuliats are interchanged between the proprietors and their tenants according to the respective shares of the co-proprietors, but until a formal division has taken place, defining each co-proprietor''s share, the right of shaffa is not extinguished. In this case the defendants, special respondents, have failed to prove any such formal division, and I must hold that, according to the Mahomedan law, which governs this case, the plaintiff''s right of shaffa exists. I would reverse the decision of the Subordinate Judge, and restore that of the Moonsiff. I concur in the view taken by Mr. Justice Glover on the question of under-valuation, as also on the question that the tulub-ishhad may be made by an agent, and that it is not under the Mahomedan law absolutely necessary that this should be done by the pre-emptor in person. Mr. Justice Glover has quoted the authorities in support of the proposition. The special appeal must be decreed with costs payable by the special respondent.

The opinion of Mr. Justice Kemp as that of the senior Judge prevailed, and the defendants appealed from his decision, u/s 15 of the Letters Patent, on the ground that he was wrong in holding that they had not proved partition or division.

The case was heard before Mr. Justice Norman (Officiating Chief Justice) Mr. Justice Bayley, and Mr. Justice Sir C. P. Hobhouse, Bart.

Mr. Allan and Baboo Debendra Narayan Bose, for appellants, contended that as the plaintiff had based his claim on being a shafee khalit, be could not be entitled to a decree in any other capacity, as a shafee-jar or shafee sharik; that the finding of the lower Court that there had been a partition and separation of interest between the plaintiff and his co-sharers in the property, over which it was sought to claim a right of pre-emption, was a finding of fact which could not be interfered with on special appeal. A formal partition by metes and bounds was not absolutely essential to invalidate the plaintiff''s claim to pre-emption. There was such a division of interest proved in this case as quite sufficient to defeat his claim. Although circumstances might justify a pre-emptor in performing the ceremonies of talub-ishhad through an agent, which would ordinarily be invalid under the Mahomedan law, those circumstances did not exist in the present case.

Mr. R.E. Twiddle and Mr. C. Gregory, for respondent.

Norman, J.

This is a suit for possession of a share of four annas out of sixteen annas in Mauza Hajujipore, on a right of pre-emption as khalit. The plaint having been framed in that form, the Moonsiff of Sewan, Syed Kazim Hossein, in settling the issues, finding probably that the plaintiff had not set forward any facts whatever to show that he was a khalit, or partner, in the right of the property claimed, raised an issue whether or not the mauza under claim had been divided by private partition, or whether the plaintiff was entitled to claim a right of pre emption, or not, as sharik, or partner, with the vendor. Notwithstanding the form of that issue, it, was incumbent on the plaintiff to prove his case. The only evidence that the plaintiff gave that he was a sharik, or partner, was the evidence of three witnesses, who stated that the mauza was ijmali (undivided). Without giving any particulars, or any history of the ijmali possession, they simply stated that the mauza was ijmali. The evidence on the part of the defendants that the vendor was not a partner, or sharik, with the plaintiff, was that the mauza was held in shares. Express evidence to that effect was gives by the oral testimony of the defendants'' witnesses. They used the word taksim, showing that there had been a partition; and in support of the statement of these witnesses that there had been partition, the defendant put in a kabuliat of 1259 (1852) granted by one Jaggo Upadhya to the plaintiff, as malik proprietor of eight annas of Patti Khas. The kabuliat recited that Jaggo Upadhya was to pay the jumma of 3 bigas 12 katas of wheat and paddy land, comprised in the said Mauza Patti Khas, at an annual rent of 21 rupees 13 annas, for 1260 and 1261 (1853 and 1855). The schedule contained a description of the land, and the rate per biga, and the particulars of its position, He also put in a proceeding in the Collectorate, dated September 1854, in which the plaintiff sued Jaggo Upadhya, the tenant, under that kabuliat, and obtained a decree for the rent of the land comprised in the kabuliat against him. The defendant also put in a jummabandi, or list of lands let out to ryots, by his own predecessor in title, dated the 3rd July 1862. In this jummabandi the name of eight ryots are mentioned, who appear to have held separately various small parcels of land aggregating six bigas. This documentary evidence is entirely consistent with the statement of the defend ante'' witnesses that the land had been partitioned and was held in separate parcels by the plaintiff and the vendor; and as it to remove all doubt on the subject, the plaintiff in bringing this suit, although, if his present contention is well founded, he knew that he had the strongest claim to pre-emption in the claim which can be put forward by a sharik, did not venture in his plaint, to assert, or to pledge his oath to the fact that ha was a sharik, or partner, with the vendor. Under these circumstances, it appears to me, that the evidence justified the finding of the Subordinate Judge of Sarun, reversing that of the first Court, that it was quite clear that the whole sixteen annas of Mauza Hajujipore are divided under a mutual partition into two separate pattis of eight annas each; that the collections from the tenants of the two pattis of eight annas are made separately; and that the plaintiff has no connection and concern with the patti within which the property claimed by right of pre-emption lies." I have no doubt that be was right at least to the extent that the plaintiff Jailed to establish by proof that he was a sharik, or partner, with the vendor. That being so, assuming, as I do for the purpose of this decision, that the first Court was right in allowing the plaintiff to change the frame of his suit, the plaintiff failed to prove the case which the first Court allowed him to raise.

I agree, therefore, with Mr. Justice Glover that we cannot interfere with the finding of the Subordinate Judge. But I do not confine myself to saying that we cannot, in special appeal, interfere with the decision of the Subordinate Judge on a question of fact, if there was any evidence to support it, because I think that, on the evidence, the Subordinate Judge came to a correct conclusion.

The result is that, in my opinion, the decision appealed against must be reversed, and the suit of the plaintiff dismissed with costs in all the Courts,

The decision in appeal No. 11 governs that in No. 10. The appeal is decreed, the decision of the Division Bench reversed, and the plaintiff''s suit dismissed with costs in all the Courts.

Bayley, J.

I concur in the order dismissing the plaintiff''s suit, but I think that the first Court was wrong with reference to the plaintiff in framing the second issue that it did.

The terms shafee khalit" were the exact terms used by the plaintiff in his plaint, as representing the character in which he claimed in this suit. The distinction between the three classes of preemptions has been very clearly pointed out at page 47, Macnaghten''s Principles of Mahomedan Law, which says that a shafee sharik comes first as having the first claim, a shafee khalit comes next, and a neighbour last; and in Baillie''s Digest, page 476, the superiority, or the first right, has been given to the shafee sharik, because he is a partner in the substance of the thing; the second place has been given to the shafee khalit, because he is a partner merely in some of the appendages, such as way and water, &c.; and the last and the lowest right has been given to a neighbour. We do not find a single word mentioned in the plaint by the plaintiff, by which it would appear that he claims the first of the above rights, nor is there anything on the record elicited from any questions put to the parties as to material facts under sections 125 and 126, to show that the plaintiff had any desire to put his case upon the title of a shafee sharik, on the ground of being a co-parcener in the estate. On the contrary, the plaintiff himself alleged in the lower Court, that be observed both the preliminaries at one and the same time, and that his witnesses would depose to the fact of the preliminaries, evidence of which is required as much in the case of a shafee khalit as of a shafee sharik. It was not stated there that witnesses would prove the property to be joint. But as the parties accepted the issues thus wrongly laid down by the first Court, I think they must be held bound by them. In this view I quite concur with Mr. Justice Norman in holding that we cannot interfere with the finding of fact arrived at by the lower appellate Court; and I agree, therefore, with Mr. Justice Glover in dismissing the Special Appeal and the plaintiff''s suit,

Hobhouse, J.

I entirely concur in the judgment of Mr. Justice Norman.