A.K. Mukherjea, J. - (1.)This reference arises in connection with a Letters Patent Appeal.
(2.)The reference was made by a Bench consisting of P.N. Mookerjee and Amiya Kumar Mookerji JJ. Two questions which induced the learned Judges hearing the Letters Patent appeal to make this reference are as follows: (i) whether the Mohammedan law of pre -emption applies in the case of purchases by non -Mohammedan although the pre -emptor and the vendor may be Mohammedan and (ii) whether pre -emption on the ground of vicinage, as contemplated under the Mohammedan law, would be opposed to the Constitution and violative of its relevant Articles so as to make it ultra vires and whether this answer may be subject to any exception.
(3.)As this is a reference under Rule 2 of chap. VII of the Appellate Side Rules we have to dispose of the entire appeal after determining the two questions that have been formulated by the learned Judges of the Division Bench. For deciding this case it is not necessary for us to refer to the facts of the case except mentioning that a Hindu purchaser purchased certain lands belonging to a Mohammedan co -sharer whereupon the co -sharer of the vendor filed a suit for pre -emption under the Mohammedan law against the Hindu purchaser. The suit was dismissed by the learned Munsif at Howrah. The pre -emptor then made an appeal before the learned Subordinate Judge, Howrah, who dismissed the appeal and confirmed the decree of the learned Munsif. Thereafter, an appeal was preferred to this High Court and Niyogi J. heard the second appeal. His Lordship allowed the appeal and set aside the judgment and decree of the lower appellate Court and further remanded the case to the lower appellate Court for consideration of three questions, namely, (i) the question whether the Plaintiffs had made the demands (talabs) in due compliance with the forms prescribed by Mohammedan law, (ii) whether the Defendant No. 2, that is, the Hindu purchaser made the purchase with notice of such demands made by the Plaintiffs and if so, how far he would be affected by such talabs and (iii) whether the Plaintiffs would be entitled to pre -empt the portion of the property in the hands of the Defendant No. 3 who was subsequent transferee during the pendency of the suit. His Lordship gave leave to appeal under Clause 15 of the Letters Patent. The Letters Patent appeal came up for hearing before P.N. Mookerjee and Amiya Kumar Mookerji JJ. who, as aforesaid, made this reference under 1 Rule 2, chap. VII of the Appellate Side Rules.