1. This appeal arises out of a suit for pre-emption brought by the appellants Wajid Ali and Ali Ahmad in respect of a sale made in favour of the first respondent on the 8th of July, 1905. On that date Ali Ahmad, plaintiff, was admittedly not a co-sharer in the village. His grandfather, Bakht Ali, was alive at the time and owned a share, which after his death devolved on. Ali Ahmad by right of inheritance before the institution of the suit. It is by virtue of the ownership of this share that. Ali Ahmad claims pre-emption. Those being the facts, two questions arise for consideration: first, whether Ali Ahmad has a right of pre-emption, he being a person who was not a co-sharer in the village at the date of the sale but became a co-sharer; by right of inheritance before the institution of the suit; and secondly whether Wajid Ali by associating Ali Ahmad with himself in bringing the suit, forfeited his own right of pre-emption, if he had any?
2. As there is a conflict of rulings on the first point, the case was referred to a Full Bench. In Muhammad Yusuf Ali Khan v. Dal Kaur (1897) I.L.R. 20 All. 148 it was held that in a case not governed by the Muhammadan Law a person who was not a co-sharer in the village at the date of the sale but had subsequently acquired a share could claim pre-emption. Following this ruling it was held in Kaunsilla Kunwar v. Gopal Prasad (1906) I.L.R. 28 All. 424 that the successor by right of inheritance of a person who had the right of pre-emption at the date of the sale, was not debarred from suing to enforce that right by the fact that his predecessor had not done so. The contrary view was held by Burkitt, J. in the unreported case of Kedar Nath v. Chunni Lal S.A. No. 1128 of 1901 decided on 10th January 1907, which was also a case in which the plaintiff pre-emptor did not own a share in the village at the date of the sale but subsequently acquired a share by right of inheritance. The claim of the plaintiff was dismissed. In Sheo Narain v. Hira (1686) I.L.R. 1 All. 536 a Full Bench of five Judges held that “where there is a right of pre-emption under the wajib-ul-arz which a share-holder could claim and enforce in respect of a sale of property, a person purchasing the share-holder’s interest in the village subsequently to the sale cannot claim and enforce pre-emption as his vendor might have done.” Mr. Abdul Majid, the learned Counsel for the appellants, has conceded that there is no distinction in principle between the case of a pre-emptor who has purchased a share subsequently to the 6ale sought to be pre-empted and that of one who has acquired a share by right of inheritance. I think it is impossible to draw any distinction between the two cases. In the case of a pre-emptor who has acquired the pre-emptive tenement by purchase the Full Bench ruling is binding on the Court, as it has not been reversed by higher authority or dissented from by a later Full Bench. Besides, having regard to the inconveniences and anomalies referred to in the judgment of Mahmood, J., in that case, it cannot be held that a pre-emptor of that description can maintain a claim for pre-emption. Similar inconvenience and anomalies would also arise in oases in which the pre-emptor did not own a share at the date of the sale but subsequently became a co-sharer in the village by right of inheritance. At the time when he acquired a share the vendee had already become a co-sharer in the village and therefore the pre-emptor had no priority over the. vendee and was not entitled to oust him. The rule of pre-emption is a rule of substitution the pre-empt or being substituted for the purchaser. The person to be substituted must necessarily be a person to whom at the time of the sale the property should have been offered for purchase and who was entitled to take the place of the purchaser. In the present case the custom recorded in the wajib-ul-arz is to the effect that if a co-sharer sells his share the different classes of persons mentioned 4n that document would in their order have a preferential right to purchase, and the property should be sold to them. This requirement could not be fulfilled unless at the date of the sale persons answering to the description of those mentioned were in existence. It follows that a person who had no right of pre-emption at the date of the sale, but acquired a right subsequently to the sale, is not entitled to claim pre-emption in respect of it. It is urged, that the right of pre-emption is a right running with the land and therefore whoever acquires the land acquires the right of preemption. As to this argument, it may be observed in the first place, that in every case of pre-emption under a custom entered in the wajib-ul-arz the right does not arise from the ownership of land, for example, where a brother or other relative who is not a co-sharer has the right to pre-empt. In the next place, it seems to me that when we talk of pre-emption running with the land what is meant is, that the land sold is subject to the right of preemption of a person who has such right at the date of the transfer in respect of which the right is claimed. It does not follow that the right devolves by inheritance. As has been already stated, a Full Bench of this Court has held that the right does not pass to a purchaser from the person who possessed it. In my opinion the principle which applies in the case of a purchaser equally applies in-the case of devolution of interest by inheritance. We must there fore hold that a person who had no right of pre-emption at the date of the transfer in question cannot acquire that right by reason of his subsequently inheriting the property of the person who had the right, hut did not seek to enforce it. As the appellant, AH Ahmad, had no right of pre-emption when the property in suit was sold, he is not entitled to claim pre-emption in respect of that sale and his suit has in my opinion been rightly dismissed.
3. The second question, as to the forfeiture of the right of the other plaintiff if he had any, is not free from difficulty. It has been consistently held in this Court that a person having the right of pre-emption who associates with himself a stranger to the village thereby forfeits his own right of pre-emption. The reason for the rule is that by joining a stranger he seeks to do that which it is the object of his suit to prevent, and thus attempts to violate the pre-emptive right, see Bhupal Singh v. Mohan Singh (1897) I.L.R. 19 All. 324. Under the principles of justice, equity and good conscience which we have to administer in cases of preemption, this rule would certainly apply in cases in which the person joined in the suit is a stranger to the co-parcenary body and has no co-parcenary interest or has only a defeasible interest. The question, however, is whether it should be applied in a case in which the person associated is a member of the co-parcenary body and has a complete and indefeasible interest as co-sharer, but does not possess the right of preemption. In my judgment the rule should not be applied in such a case. I do not think that any hard and fast rule should be laid down, and it seems to me that each case should be judged with reference to its own peculiar circumstances. The word ‘stranger’ has, no doubt, been held to be a correlative to the word ‘pre-emptor’ and to denote a person who has no right of pre-emption. But there is no legislative enactment or any other direct provision of law which lays down that the association of a ‘stranger’ with a pre-emptor entails a forfeiture of the right of the latter. The forfeiture has been held to be incurred either on the ground of estoppel, as in the case cited above, or on the ground of equitable acquiescence, as held in Bhawani Prasad v. Damru (1882) I.L.R. 5 All. 197. The object of preemption is to exclude from the co-parcenary body a person who does not belong to that body and is entirely outside it and is in that sense a stranger. In almost all the cases in which it was held that a person possessing the right, of preemption forfeits it by joining a ‘ stranger the person joined was a stranger to the co-parcenary body and a total outsider, The particular question before us does not appear to have been decided’ in any of the cases to which our attention has been invited. Having regard to the object of pre-emption the joining of a person, who at the time of the institution of the suit is as much a co-sharer as any one else, cannot, as it seems to me, be regarded as an attempt to defeat that object and to violate the rule of pre-emption. I fail to see on what equitable principle it can be held that a plaintiff who possesses the right of pre-emption forfeits it in a case like this. In Chotu v. Husain Bakhsh Weekly Notes 1893 p. 25, it was held that the mere joining by a person having a right of pre-emption, of persons who have an equal right of preemption but have not qualified themselves according to the Muhammad an law to enforce it, and who are not strangers, will not disentitle the person entitled to maintain a suit for pre-emption if he had sued alone from maintaining a suit brought by him so far as he himself is concerned. In that case pre-emption was claimed by several persons, one of whom, Chotu, only had performed the preliminary demands required by Muhammadan law. The other plaintiffs were persons who, if they had complied with the requirements of that law, would have been entitled to maintain a suit for pre-emption. Those plaintiffs therefore had no right of pre-emption. The learned Judges, Edge, C.J., and Aikman, J., held that Chotu had not forfeited his right of pre-emption by joining with him the other plaintiffs in bringing the suit. That was, no doubt, a case under the Muhammadan law, but the principle laid down is equally applicable to all suits for pre-emption, whether brought under that law or not. This ruling, therefore, supports the view that a person having a right of pre-emption does not forfeit it by associating with himself a person who is a member of the co-parcenary body but does not possess the right of pre-emption. If the plaintiff Wajid Ali has the right of pre-emption he has not, in my opinion, lost that right by joining with him the other plaintiff Ali Ahmad and the court below was wrong in dismissing his claim without trying the other questions raised in this appeal in that court. I would remand the case for the trial of those questions, but would dismiss the appeal and claim of Ali Ahmad, plaintiff.
4. This appeal arises out of a suit for pre-emption. The plaintiffs base their claim on a custom prevailing in the village. The evidence of such custom is an extract from the wajib-ul-arz, which is to the effect that if any co-sharer wished to transfer his share the first right of purchase should be with a co-sharer descended from the same ancestor, next with a co-sharer in the patti and next with a co-sharer in the thok. It is to be assumed for the purpose of this appeal that the plaintiff Wajid Ali was a co sharer at the time of the sale and at the institution of the suit. The plaintiff Ali Ahmad was not a co-sharer at the time of the sale, but his grandfather was a co-sharer. Ali. Ahmad succeeded his grandfather and was a co-sharer when the suit was instituted. The defendant vendee is a stranger. It was contended on behalf of the defendant, that, Ali Ahmad had no right to pre-empt, and that Wajid Ali (assuming he had a right to pre-empt) lost his right to a decree by associating himself in the suit with Ali Ahmad. This argument found favour with the court below and the suit was dismissed. Hence the present appeal.
5. The respondents rely on the ruling of this Court in the case of Sheo Narain v. Hira (1885) I.L.R. 7 All. 353. It was held in that case that a person purchasing from a co-sharer who had a right of pre-emption could not maintain a suit to enforce the right of pre-emption which his vendor had at the date of the sale. The ruling is a very unsatisfactory one. It was a decision of five Judges, but no reasons are given for the decision by any of the Judges save Mahmood, J. The Chief Justice (Sir W. Comer Petheram) simply says: “In my opinion the question referred should be answered in the negative.” Oldfield, Brodhurust and Tuthoit, JJ., concurred, and then Mahmood J., proceeds to give his judgment and his reasons. The other members of the Court do not say that they concur in the reasons given by Mahmood, J., and we are left in the dark as to whether or, not the rest of the Court concurred in the reasons given by Mahmood J.
6. The reasons given by Mahmood, J. for his decision are, first, that under the Muhammadan law a vendee from a person, who had a right of pre-emption cannot maintain a suit for pre-emption, and secondly, that in pre-emption cases the rules of Muhammadan law must be applied by analogy even where the right is claimed under customary law and not under the Muhammadan law.
7. With all respect to the learned Judge, I cannot agree in his second proposition. I will grant for the purpose of argument that the customs of pre-emption found in these Provinces owe their origin to the Muhammadan law of pre-emption. I do not; think that it follows, as a general proposition, that the analogy of the Muhammadan law should be applied in pre-emption cases arising out of custom. The Muhammadan law and the customary law found in these Provinces are widely different. The instances of pre-emption under the Muhammadan law found in the books are mostly in respect of houses, small plots of land and the appurtenances of houses. The customary law in these Provinces for the most part relates, not to houses or their appurtenances, but to zamindari rights in villages. Muhammadan law (speaking generally) applies to one class of property, the customary law to a very different class of property. The Muhammadan law, while it recognises pre-emption, has introduced all kinds of technical devices to defeat it and render it nugatory. The customary law on the other hand has extended the doctrine. The customs vary considerably in different villages, and so far as zamindari property is concerned bear very little resemblance to the Muhammadan law of pre-emption. I may give one example of the devices introduced by Muhammadan law. A shaft who receives a letter which either in the beginning or in the middle apprises him of the circumstances of his shafa if he read it on to the end, his right of shafa is thereby invalidated (Hamilton: Hedaya, Vol. III, Section XXXVIII Ch. 11). Where will such a condition be found in a custom prevailing in a village in these Provinces? Sometimes, no doubt, a rule of the Muhammadan law may be applied in a pre-emption case arising out of custom, but this is because the rule, is reasonable, just and equitable, apart altogether from its being a rule of Muhammadan law, e g., in a case where there are two pre-emptors with equal rights, the property is divided. In the present case, if we were to adopt the reasons of Mahmood, J., as to the application of Muhammadan law, why should the pre-emptor not be required to prove the making of the demands &c. required by Muhammadan law? The custom as proved does not say that demands are unnecessary. The Full Bench ruling referred to was a cae of a vendee of a person having a right of pre-emption. There may be reasons for holding that such a vendee cannot maintain a suit apart from the analogy of the Muhammadan law. Such a vendee owes his position to the fact that his vendor has violated the custom by himself selling to a stranger, In the case of a person acquiring title by inheritance this objection would not exist. Allowing a stranger vendee to maintain a suit in respect of a sale made before the vendee acquired title, might also lead to a long series of pre-emptive rights and much consequent inconvenience. In the present case the custom, as proved, gives the right to pre-empt as an incident to co-ownership, and I think we ought to follow the ruling in Muhammad Yusuf Ali Khan v. Dal Kuar (1897) I.L.R. 20 All. 148. The circumstances of that case and the present are identical in principle. In each case the pre-emptor derived title by inheritance, and I think that the ruling in 7 All. 535, may be distinguished.
8. As to the second ground, namely, that Wajid Ali has disentitled himself to a decree by reason of having associated himself in the suit with Ali Ahmad, of course, if it be held that Ali Ahmad has a right to pre-empt, the question does not arise. Assuming that it is held that he has not, I still think that Wajid Aii ought not to lose his right. Wajid Ali was not violating the custom of pre-emption by associating himself with Ali Ahmad. The object of this custom was to exclude a person who was not a co-sharer. Ali Ahmad was a co-sharer when the suit was brought and therefore there was no violation of the custom by the plaintiff Wajid Ali. The only reason for denying Wajid Ali a decree under the circumstances of the present case would be the required application of the rules of the Muhammadan law of pre-emption by analogy.
9. I have already given my reasons for thinking that the general proposition that the rules of the Muhammadan law are to be applied to the customary law of pre-emption is not sound.
10. This appeal arises out of a suit to enforce a right of a pre-emption in respect of a share in a zamindari, brought by the two appellants under a custom alleged to exist in the village, as recorded in the wajib-vl-arz. This document states that when a co-sharer wishes to part with his share then the right of purchase lies in his co-sharers in the following order:
(1) Co-sharers who are blood relations.
(2) Co-sharers of the same patti.
(3) Co-sharers of the same thok and of the village.
11. In the above order of precedence at the date of sale the plaintiff Ali Ahmad was not a co-sharer, but the other plaintiff Wajid Ali was.
12. Ali Ahmad’s grandfather, however, was a co-sharer on that date. He died shortly after it, without having shown whether he intended or not to exercise his right of pre-emption. Ali Ahmad succeeded to his estate. The suit was brought within the period of limitation.
13. The two questions for decision on appeal are:
(1) Whether Ali Ahmad, though he was not a co-sharer on the date of sale, has a right to pre-empt?
(2) If not, then has Wajid Ali lost his right to pre-empt by reason of his having joined Ali Ahmad with himself in the suit as a plaintiff?
14. It is assumed for the purposes of this appeal that Ali Ahmad’s grandfather and Wajid Ali both had a right to preempt. The difficulty in deciding the first point arises from the fact that the decision of this Court reported in I.L.R. 20 All. 148 and 28 All. 424, which are in favour of the appellants; clash with the decision of Burkitt, J. in S.A. No. 1123 of 1904, decided on 10th January, 1907, and also apparently with the principle of the ruling of the Pull Bench in Sheo Narain v. Hira (1885) I.L.R. 7 All. 353.
15. In the case Muhammad Yusuf Ali Khan v. Lal Kuar (1897) I.L.R. 20 All. 148 the pre-emptor was the daughter of a Hindu widow, in whose favour the widow had relinquished her own life-estate, the sale to pre-empt which the suit had been brought having taken place during the widow’s tenure.
16. In Kaunsilla Kumwar v. Gopal Prasad (1906) I.L.R. 28 All. 424 the widow of a Hindu who had succeeded to her husband’s estate subsequently to the sale which was the bone of contention in that suit. In the Full Bench case of Sheo Narain v. Hira (1885) I.L.R. 7 All. 353 the person who Bought to pre-empt was one who, himself a stranger to the co-parcenary body at the date of sale, had subsequently become a member thereof by purchasing a share from a co-sharer.
17. It will thus be seen that the circumstances of the three suits were not alike, though those of the first and the last were similar to this extent that there had been a voluntary transfer inter vivos in each. In Muhammad Yusuf Ali Khan v. Dal Kuar (1897) I.L.R. 20 All. 148 the Full Bench case was considered but distinguished. In Kaunsilla Kunwar v. Gopal Prasad (1906) the decision reported in 20 All. 148, was considered, but no mention of the Full Bench ruling is to be found in the judgment. In the latter we find the following expression of opinion: “The right of preemption is a right which is incident to or arises out of the ownership of land and it seems to us that the persons for the time being entitled to the land to which the right is incident may exercise the right so long as it is not barred by limitation or by conduct or circumstances which would render it inequitable on their part to enforce the right. We think that so long as the right is not barred by limitation or by any matter whj.ch would render it inequitable to enforce it, the owner of the property in respect of which the right to pre-empt exists can maintain a suit for pre-emption, notwithstanding that he Was not the owner at the date on which the cause of action accrued.” On the other hand, in the Full Bench ruling in, Sheo Narain y. Hira (1885) I.L.R. 7 All. 535 Mahmood, J. after stating that the Muhammadan law must be applied, by analogy, in cases where the right of pre-emption is based on custom recorded in wajib-ul-arz, added: “Under that law, when the ownership of the pre-emptive tenement is transferred or devolves by act of parties or by operation of law, the transfer or devolution pastes the right of pre-emption to the person in whose favour the transfer or devolution takes place, but the rule is essentially subject to the proviso that such person cannot enforce pre-emption in respect of any sale which took place before such transfer or devolution. This rule must also apply to the present case.”
18. The reason why, although the right of pre-emption runs with the land, the plaintiff “in this case” cannot be allowed to enforce it, is that to rule otherwise would in effect be to allow a “stranger” to oust one who was not a stranger “at the time of the sale.” Mahmood, J., then goes on to point out that in the case then before him, to allow the plaintiff, the second vendee, to pre-empt would lead to an absurdity and certain inconveniences. If in the case of Kaunsilla Kunwar v. Gopal Prasad, it was intended to lay down the broad rule, that every transfer of a co-sharer’s share, even a sale to a stranger, passes with it a right to pre-empt, in the case of a share which has previously been transferred to another stranger by another co-sharer, then I cannot agree. The object of pre-emption is to prevent the introduction of a stranger into the co-parcenary body. If a co-sharer transfers his share to a stranger, then he is doing the very wrong to prevent which the right exists, and I can see no equity in granting to this second stranger the right to pre-empt, in the case of another stranger who had entered the co-parcenary before ho did. In this case the rule of Muhammadan law is consistent with justice, equity and good conscience. But I do not think that the learned Chief Justice intended to lay down any such broad rule. The case before him was one in which property had passed by operation of law and not by a transfer inter vivos; and the decision is an authority simply for what it decided, viz., that in such a case the heir who inherits has a right to pre-empt the sale which took place before the estate vested in him Equally so, the Full Bench decision in Sheo Narain v. Hira is only an authority for the rule that a person purchasing a share-holder’s interest the village subsequently to another sale cannot claim and enforce pre-emption as his vendor might have done. The other Judges who constituted the Full Bench gave no reasons, but the ruling is binding on us, so far as it goes, as it has not been overruled.
19. Moreover, it is in my opinion correct. If a co-sharer, who has a right to maintain a suit for pre-emption, instead of so doing does himself transfer to a stranger and thus commit the same wrong, he must be deemed to have relinquished or forfeited his right. To hold that he can pass it on to a second stranger would be inequitable. In such a case, I have already said the Muhammadan law on the subject is consonant with equity and justice.
20. On the overhand, to apply the rule of Muhammadan law in the case of a devolution by operation of law, would be also inequitable and unjust. In this respect I would point out that the rule in the case of inheritance is not the same in the three Schools of Muhammadan law (Hanafi, Shafi, Shia). It is only in the Hanafi School that the rule is enforced. The analogy of Muhammadan law moreover can only be applied to cases of custom under a wajib-ul-arz where it is not repugnant to the principles of equity, justice and good conscience. In the Full Bench ruling Mahmood J., applied it to the case of a transfer by sale to a stranger. I do not think that he can be said to have held that it should be applied even in the case of “inheritance of a share by an heir.” In equity and justice, there is clearly no reason that an heir who inherits a share should not pre-empt in the case of a sale which took place before the estate vested in him. None of those inconveniences or absurdities which Mahmood, J., pointed out could arise in such a case. I can see no reason to apply the arbitrary and inequitable rule of the Hanifi School of Muhammadan law. The Full Bench ruling in Sheo Narain v. Hira cannot apply to the present case; whereas the ruling in Kaunsilla Kunwar v. Gopal Prasad, does cover it I would however point out that the right of pre-emption based on custom is not always a right which is incident to or arises out of the ownership of land. In many cases the custom gives the right to a blood relation independently of the question as to whether he is a co-sharer or not. In every case one must look to the special circumstances thereof and decide it with the aid of the principles of justice and equity. In the present case, which is based on custom and not Muhammadan law, there is nothing inequitable in allowing Ali Ahmad to enforce the right which accrued to his grandfather. He has entered the co-parcenary body and has an indefeasible right to his share. He is not a stranger in the sense in which the ordinary co-sharer in a village understands the word. By allowing him to pre-empt, the court is not doing injustice to anybody. No suit for pre-emption can lie against him in respect to the share inherited by him. I therefore hold that he has a right to maintain the present suit. The next point is that if Ali Ahmad has no right to maintain the present suit, has Wajid Ali forfeited his right to do so, by reason of his having joined the former with himself in the suit? The decision of this point depends on the definition of the word “stranger” to be applied. Attention has been called to several rulings in which the word, “stranger” has been defined as one who has not a right to pre-empt. This is the definition of the word according to Muhammadan Law; vide Fida Ali v. Muzaffar Ali (1882) I.L.R. 5 All. 65.
21. In Bhawani Prasad v. Damru (1882) I.L.R. 5 All. 197 the plaintiff who had a preferential right to pre-empt joined with himself two persons who had not such a preferential right, and his suit was rejected on the ground that he had joined with himself “strangers.” The rule therein laid down by Mahmood J., is that a person cannot claim a right which he has himself violated nor can he be allowed to complain of an injury in which he has himself acquiesced. In Bhupal Singh v. Mohan Singh (1897) I.L.R. 19 All. 324 the word “stranger” was defined as a person who has not a right of pre-emption, reference being made to the case of Fida Ali v. Muzafar Ali, noted above. But in this case the stranger was a true “stranger,” he not having a share in the mahal. The present question which is now before us was not before the court in that case.
22. But in Chotu v. Husain Bakhsh Weekly Notes 1893 p. 25 the circumstances were very similar to those which are now under consideration. The claim in that suit was actually based on Muhammadan law. Certain persons had an equal right with the plaintiff to pre-empt but had not qualified themselves according to Muhammadan law, to enforce it. They were not strangers to the co-parcenary body, but had merely failed to comply with the technical rules of Muhammadan law relating to demand. It was held that the plaintiff had not forfeited his right because he had joined them with himself in his suit. The decision seems to me to be contrary to Muhammadan law. But the present case is not one based on Muhammadan law. Ali Ahmad on the date of suit was a member of the co-parcenary body and had an indefeasible right to the share which he held. Wajid Ali is not attempting to introduce an outsider by joining Ali Ahmad with himself. He is not committing the wrong which he himself is seeking to prevent. Again applying the principle of equity, justice and good conscience, I can see no reason why his suit should be defeated merely because Ali Ahmad has no right to pre-empt. In cases where the right to pre-empt is based on custom, by as stranger is understood one who has no share in the mahal concerned. For the purposes of this appeal it is assumed that Ali Ahmad’s grandfather (his predecessor in title) had a right to pre-empt as against the vendee. Ali Ahmad has taken his place in the co-parcenary body. He cannot, I think, be held to be a stranger to that body merely because his grandfather’s right to pre-empt in the present case has not come down to him. The case is one in which the definition of Muhammadan law should not be applied as it is not in the circumstances consistent with the principles of equity, justice and good conscietico. I would therefore hold that Wajid Ali’s suit cannot be defeated merely because he has joined Ali Ahmad with him in this suit. I would therefore admit this appeal and set aside the decree of the lower court.
23. In accordance with the judgment of the majority of the Bench the appeal is allowed, the decree of the court below is set aside and the case is remanded to that court under the provisions of Order 41, Rule 23 of the Code of Civil Procedure, with directions to readmit it under its original number in the register and dispose of it according to law. Costs here and hitherto will follow the event.