ENATULLAH Vs. SHEIKH KOWSHER ALI

JUDGEMENT

(1.) The question referred to the Special Bench is whether under the Mahomedan Law one co- parcener has any right of pre-emption where another co-parcener happens to be the purchaser.

(2.) The question was decided by a Full Bench of this Court in the negative in the case of Lalla Nowbut Lall V/s. Lalla Jewan Lall [1879] 4 Cal. 831. Since then the Allahabad High Court and a Full Bench of the Bombay High Court have taken the opposite view, and having regard to the original authorities on the point which were not placed before the Full Bench in Lalla Nowbut Lall's case [1879] 4 Cal. 831, a Division Bench of this Court was of opinion that the Full Bench decision should be reconsidered, and hence this reference to the Special Bench.

(3.) In the case of Lalla Nowbut Lall V/s. Lalla Jewan Lall [1879] 4 Cal. 831. Garth, C.J., delivering the judgment of the Full Bench said: There appears to be no reason, either upon principle or authority, why the right of Shaffa should exist as between co-parceners; and the rule as laid down in Hamilton's Hedaya, Vol. 3, Bk. 38. Chap. 1 appears to have been misunderstood in this respect. That rule merely prescribes that any one partner (or co-parcener) of a property has a right of shaffa as against a stranger, who purchases a share from his co-partner, and does not mean, that the right exists as between co-partners who may purchase shares from one another. The object of the rule, as explained in that chapter, and in Chap. 3, is to prevent the inconvenience which may result to families and communities from the introduction of a disagreeable stranger as a co- parcener or near neighbour. But it is obvious that no such annoyance can result from a sale by one co-parcener to another. The only result of such a sale would be to give the purchaser a larger share in the joint property then he had perhaps larger than the other co-parceners have.