- (1.) This was a suit to declare the plaintiff's right of preemption as a shafee khalit in an eight-anna share of Mauza Hajujipore. The Court of first instance gave him a decree, but the Subordinate Judge threw out his claim on three grounds : 1st, because the suit was undervalued; 2ndly, because the property had been divided into two separate estates, and plaintiff was, therefore, not a shafee khalit, or partner, in the thing sold; and, 3rdly, because the ceremony of tulub-ishhad had not been properly performed. In special appeal exceptions are taken to the Subordinate Judge's finding on all these points. The argument, however, has been chiefly confined to the second, and it will be convenient to take that first in order.
(2.) We were a good deal pressed by the special respondent's pleader as to the form in which the plaintiff had brought his suit, and it was argued that his status, according to his own explanation of it, was not that of a shafee khalit, which means a partner not in the thing sold, but in its appendages or rights. If he had any right at all, it was either as shafee sharik (partner in the thing sold), or as shafee-jar (neighbour), in neither of which capacities had he come forward.
(3.) It appears to me, after going through the record, that what the plaintiff did substantially ask was to have his right of pre-emption declared on the ground that he was a partner in the thing sold. No doubt there has been some confusion caused by the way in which the Arabic terms have been employed, and strictly speaking the plaintiff's claim, as I understand it, would be that of a sharik or partner in the thing sold, and not that of a khalit, or partner in its rights only. This mistake in the wording of a claim to pre-emption is not uncommon. Indeed the term shafee khalit is, so far as my experience goes, generally, although wrongly, used to describe one who claims as partner in the thing actually sold. And that the plaintiff's intention was to claim on this ground, is I think clear from the issue that was drawn up by the first Court, which was, whether there had or had not been a partition of the property into two estates, this being the defence set up by the vendee. The difficulty on this point has been increased by the first Court's mistake in using the word khalit instead of sharik, but there can be no doubt, I think, that the decision in favor of the plaintiff was come to by the Moonsiff, on the ground that the defendant had failed to prove that the property had been divided. The words pre-emptor by contiguity" are improperly entered in the translation. There are no such corresponding words in the original, and the whole tenor of the Moonsiff's judgment is against the supposition, that he decided on the ground that the plaintiff was a shafee-jar.;