SHEIKH KUDRATULLA Vs. MAHINI MOHAN SHAHA
LAWS(CAL)-1869-9-21
HIGH COURT OF CALCUTTA
Decided on September 13,1869

SHEIKH KUDRATULLA; SAYAMA KUMAR ROY AND ORS ; FARMAN KHAN Appellant
VERSUS
MAHINI MOHAN SHAHA; JAN MAHOMED AND ORS ; BHARAT CHANDRA SHAHA CHOWDHRY Respondents

JUDGEMENT

- (1.) 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.
(2.) 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.
(3.) 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.;


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