1926 (8) TMI 7 - HC - Indian Laws

Co-parceners affirmed pre-emption rights under Mahomedan Law, overturning previous decision.

The Special Bench held that under Mahomedan Law, co-parceners have the right of pre-emption against each other, overturning the previous Full Bench ... - Issues Involved:1. Whether under Mahomedan Law, one co-parcener has any right of pre-emption where another co-parcener is the purchaser.Detailed Analysis:Issue 1: Right of Pre-emption among Co-parceners under Mahomedan Law1. Historical Context and Initial Judgment:The question referred to the Special Bench was whether under Mahomedan Law, one co-parcener has any right of pre-emption where another co-parcener happens to be the purchaser. This issue was previously decided by a Full Bench of the Calcutta High Court in the negative in the case of *Lalla Nowbut Lall v. Lalla Jewan Lall [1879] 4 Cal. 831*. The Full Bench, led by Garth, C.J., concluded that the right of Shaffa (pre-emption) does not exist between co-parceners.2. Contrary Views and Reconsideration:Since the *Lalla Nowbut Lall* decision, the Allahabad High Court and a Full Bench of the Bombay High Court have taken the opposite view. Given the original authorities on the point, which were not considered in the *Lalla Nowbut Lall* case, a Division Bench of the Calcutta High Court opined that the Full Bench decision should be reconsidered, leading to this reference to the Special Bench.3. Arguments from Hedaya:The Full Bench in *Lalla Nowbut Lall* misunderstood the rule as laid down in Hamilton's Hedaya, Vol. 3, Bk. 38, Chap. 1. The rule prescribes that any partner (or co-parcener) of a property has a right of Shaffa against a stranger who purchases a share from his co-partner, but it does not mean that the right exists between co-partners who purchase shares from one another. The object of the rule is to prevent inconvenience from the introduction of a disagreeable stranger as a co-parcener or near neighbor.4. Supporting Texts and Authorities:Contrary to the Full Bench's interpretation, the Hedaya and other authoritative texts indicate that one co-parcener can claim pre-emption against another. Passages from the Hedaya (Vol. 3, Book 38, Chap. 1) state that when there is a plurality of persons entitled to the privilege of Shaffa, the right of all is equal. This principle of equality is supported by other texts such as Takmila, Bahr-ur-Raikh, Tatar Khaniyah, Dur-rul-Mukhtar, Fatawa Alamgiri, Inayah or Aini, and Radd-ul-Mukhtar. These texts establish that even when the buyer is a pre-emptor, other persons with similar rights of pre-emption can claim against the buyer.5. Judicial Precedents:The case of *Amir Hassan v. Rahim Bakhsh [1897] 19 All. 466* and subsequent cases like *Abdullah v. Amanatullah [1899] 21 All 292* and *Nader Husain v. Sadiq Husain, AIR1925All361* support the right of pre-emption among co-parceners. The Bombay High Court in *Vithaldas v. Jametram [1920] 44 Bom. 887* also followed this view, stating that under the Hanafi School of Mahummadan Law, neighbors have equal rights to pre-empt.6. Modern Text-Writers and Legal Opinions:Modern text-writers like Ameer Ali and Wilson's Anglo Muhammadan Law support the view that co-parceners have equal rights to pre-emption. Ameer Ali's Muhammadan Law, 3rd Edition, Vol. 1, page 597, states that when one co-sharer conveys his share to another co-sharer, no other co-sharer can have a right of pre-emption, as their rights are equal. This view aligns with the enunciations of Mahomedan jurists.7. Reconsideration of the Full Bench Decision:The Special Bench concluded that the original texts of Mahomedan Law and modern interpretations support the right of pre-emption among co-parceners. The Full Bench decision in *Lalla Nowbut Lall* was based on an incomplete understanding of the rule of Shaffa and did not consider the principle of equality among co-parceners.8. Final Judgment:The Special Bench held that the case of *Nowbut Lall v. Jewan Lall [1879] 4 Cal. 831* was wrongly decided and answered the question in the affirmative. Consequently, the plaintiffs were entitled to a decree for one-half of the property subject to pre-emption on payment of half the purchase money. Each party was ordered to bear its own costs in all the Courts.9. Concurring Opinions:All judges on the Special Bench agreed with the judgment delivered by the learned Chief Justice, emphasizing that all authorities under Mahomedan Law support the right of pre-emption among co-parceners and no authority or text had been cited to the contrary view.In conclusion, the judgment affirmed the right of pre-emption among co-parceners under Mahomedan Law, overturning the earlier Full Bench decision in *Lalla Nowbut Lall v. Lalla Jewan Lall*.