Right of Pre-emption in Property Law: Insights from Dashrathlal Chhaganlal v. Bai Dhondubai

I.I Chundrigar, with K.T Pathak, for the appellants., I.I Chundrigar, for the appellants. The plaintiff claimed pre-emption in respect of two rooms and land sold to defendant. The sale was effected on September 23, 1931, and it was alleged by the plaintiff that she came to know of the sale on December 2, 1931. The lower Court granted relief in respect of open land but it was refused in respect of rooms. The land in suit is situated in the locality called Bhadra Fort in Ahmedabad. It is a leasehold property belonging to Government. It was leased to vendor. The lease is to expire on July 31, 1950. The Sanad was granted under s. 133 of the Land Revenue Code in the form of Schedule H but the word “occupancy” in the printed form is struck off and words inserted which when translated show that the grantee was to hold as a tenant-at-will. Under the Sanad, right is reserved to eject the tenant on a year's notice and also that if the Government wanted to resume before the period they would pay compensation. We, therefore, submit that though under the Sanad, the lease may be heritable and transferable property, no proprietory interest in the property is created., A.G Desai, with J.C Shah, for the respondent., A.G Desai, for the respondent: I submit Hamidmiya v. Benjamin goes much too far in confining the law of pre-emption to particular classes of Mahomedans. The law of pre-emption no doubt applies primarily to Mahomedans. But it applies by custom in particular localities to non-Mahomedans as well. There is no justification for cutting up non-Mahomedans in those localities into several communal divisions and applying the law to one and not to the other., The lower Courts have proceeded to decide the case on the basis of certain rulings regarding the custom as to the right of pre-emption. We submit that these rulings mainly refer to the houses in respect of which the right was claimed. The main question which the Court will have to decide is whether the custom attaches to land. The question about land had not directly been involved in any of the decisions of our High Court., Reciprocity is the distinguishing factor in the exercise of the right of pre-emption. In the present case such mutuality will be wanting. It is obligatory for the plaintiff to prove that she is an owner of the adjoining property before she can succeed. She has neither alleged nor proved this. It is well-known that all lands in the Bhadra are leasehold. Plaintiff is not, therefore, entitled to pre-empt on this ground., In Gordhandas Girdharbhai v. Prankor the existence of a local custom as the right of pre-emption among the Hindus of Gujarat was recognised. This was doubted in Dayabhai Motiram v. Chunilal Keshordas. The latter was a case from Kaira in which parties were Hindus. The defendants contended that there was no custom of pre-emption in that part of Gujarat. It was held that the right of pre-emption is a personal right which under the Mahomedan law would not descend to heirs. According to this decision the burden lay on the party alleging application of foreign law. In Rewa v. Dulabhdas, it was held that the law of pre-emption applied in Jambusar but the plaintiff's claim was rejected on the ground that the plaintiff had not done all that was necessary to enforce the right of pre-emption. In Mahomed Beg Amin v. Narayan Meghaji, it was held that in the District of Khandesh, the rule of pre-emption does not exist. The case of Gopaldas v. Parpab was from Godhra. In this it was held that the Hindus in Godhra were governed by the rule of pre-emption. In Digamber Singh v. Ahmad Said Khan there was a partition of a village into separate mahals and it was held by the Privy Council that a sharer in one of the new mahals who claimed a right of pre-emption over the land in another mahal must show on evidence that the custom survived the partition. Sitaram Bhawao v. Sayad Sirajul was a case from Kolaba District. In this a Mahomedan co-sharer sold his share in inam villages to a Hindu purchaser. Pre-emption was claimed on the general principles of Mahomedan law and not custom and the claim was allowed. Motilal Dayabhai v. Harilal Maganlal was a case from Ahmedabad in respect of a house. Parties were Hindus. It was held that the custom of pre-emption set up in the plaint was proved by the authority of several decisions. In Jagjivan Haribhai v. Kalidas Mulji, the lower appellate Court remanded the suit for a finding on an issue as to whether the plaintiff proved the existence of an invariable custom of pre-emption among the Hindus of Surat District in respect of agricultural lands. There was no decision by the High Court as the appeals were preferred only against the remand order. Hamedmiya v. Benjamin was a case from Ahmedabad. Property in suit was an open piece of land adjoining plaintiff's lands. Vendee was a Bene Israel. The suit was dismissed as it was held that the right of pre-emption not being an incident of property the vendee who was a Bene Israel could not in the absence of custom be bound by the law of pre-emption, although that law may have been established as customary law applicable to Hindus and Mahomedans in the District in which the property in question was situated. The position as to mutuality was considered, and it was observed that it would be unjust that Mahomedan law of pre-emption should be enforced against a Bene Israel purchaser without giving him the benefit of that law in other cases in which he would like to stand in the position of a pre-emptor., We submit that the following decisions support our contention that the right of pre-emption applies only in case of transfers conveying ownership and not to transfers of leasehold interest in the property though a sale-deed may be effected in respect of such rights: Moorooly Ram v. Huree Ram; Ram Golam Singh v. Nursingh Sahay; Sheikh Mohammad Jamil v. Khub Lal Raut; Musummat Bibi Saleha v. Haji Amiruddin; Phul Mahommad Khan v. Quozi Kutubuddin., In Jadu Lal Sahu v. Janki Kuar the Privy Council holds at p. 106 “that the right of pre-emption is enforceable irrespective of the persuasion of the parties concerned”., Zimmes or Infidels like Christians and Hindus can as well avail of the privilege (Baillie p. 477). Thus Hedaya at p. 558 says: “A Mussulman and a Zimmee, being equally affected by the principle on which shaffa is established, and equally concerned in its operations, are therefore on an equal footing in all cases regarding the principle of shaffa”., The law of pre-emption, wherever it is recognised by force of custom will be “presumed to be founded on and co-extensive with the Mahomedan law upon that subject” (Jadu Lal Sahu v. Janki Kuar. And under the Mahomedan law the right of shaffa or pre-emption is not a mere personal right but is a right attached to land. As observed by Mahmood, J. in Gobind Dayal v. Inayatullah, it is not a right of “re-purchase”, either from the vendor or from the vendee, involving any new contract of sale. According to Hedaya as translated from the original Arabic in Gobind Dayal v. Inayatullah: “Preemption becomes obligatory (i.e enforceable) by a contract of sale, which means after the sale. Not that sale is the cause (of pre-emption), for the cause is conjunction (of the properties)”. Thus the foundation of the right of shuffa is “the conjunction” of the tenements concerned. The right of shaffa thus exists antecedently to sale. And the sale is a condition precedent, not to the existence of the right—because the right (Shafi-i-Jar) is already there by reason of “conjunction” or vicinage but only to its enforceability (Tafibo): see Gobind Dayal v. Inayatullah., The principle laid down in Hamidmiya's case that the right of pre-emption is merely a personal right and is not attached to the land is based on the ruling of the Calcutta Full Bench in Sheikh Kudratulla v. Mahini Mihan Shaha which says that the right of pre-emption is nothing more than a right of re-purchase from the vendee and that it is a right which “comes into existence” after the right to the property has completely passed to the purchaser., There is thus a conflict between two full bench decisions of the Allahabad and the Calcutta High Courts and Hamidmiya v. Benjamin has preferred to follow the latter. But the conclusion of the Calcutta Full Bench is based on a mistranslation of the Arabic word “Tajibo” in the Hedaya. And as pointed out by Mahmood, J. in Gobind Dayal v. Inayatullah the correct interpretation of the word is not “established” as given by Hamilton in his Hedaya—which is a translation not of the original Arabic text, but of a translation of the Persian version of the Arabic text—but “becomes obligatory, necessary or enforceable”. The right of pre-emption on the point of vicinage does not require to be “established” like “a right of re-purchase”. It is attached and continues to be attached to the tenement concerned and can under certain circumstances at once be “enforced” against the adjoining tenement sold., The right is thus not personal but is an incident of property and has nothing to do with the caste or the community to which the parties belong. In fact this right was enforced against the Official Assignee, as a right annexed to the land and not dependent on the religious persuasion of the parties concerned: Sehobaran Singh v. Kulsum-un-Nissa., As regards non-Mahomedans, therefore, all that need be proved is whether the right of pre-emption is recognised by custom in the locality in which the dispute is raised. And if such custom is proved, it is not necessary to prove to which particular community the party belongs., The plaintiff is domiciled in Ahmedabad and her family has lived there for over one hundred and fifty years and the property in dispute is situate within the precincts of the ancient city of Ahmedabad. And so far as the city of Ahmedabad is concerned the right of pre-emption has been judicially recognised in several decisions. See Motilal Dahabhai v. Harilal Maganlal and the other instances referred to in the judgment of the trial Court in that case: see also Nanalal Motilal v. Natvarlal Trikamlal in which this custom was judicially recognised as applying to Hindus in Ahmedabad. And once a custom is judicially recognised, it is not necessary to assert or prove it: Jadu Lal Sahu v. Janki Kuar and Greeschandra Bhetta Charya v. Rabeendranath Das. It is true that the right of shaffa or pre-emption arises only out of a completed sale and not out of a mere lease even though in perpetuity (Mulla, para. 182). But that does not mean the two tenements must be free-hold. The nature of tenure of the two tenements is irrelevant for the purposes of pre-emption. And the argument based on the doctrine of reciprocity is equally irrelevant. Because no one is bound to pre-empt and shufee does not concern itself with the benefits or disadvantages that may or may not accrue to the parties concerned. The Mahomedan law does not make any distinction between free-hold and lease-hold properties nor between houses and lands. And it is therefore better first to examine the texts themselves rather than ascertain what the Judges may have said in this behalf., Because as held in Aga Mahomed Jaffer Bindaneem v. Koolsom Bee Bee Courts are not entitled to put their own interpretation on the Koran when it is interpreted in a particular way, e.g by the Hedaya or to introduce new rules of law when the ancient commentators did not themselves deduce these conclusions: Baker Ali Khan v. Anjuman Ara Begum and Sidik Ali Khan v. Anjuman Ara Begam., And the Hedaya quotes the prophet as saying “Shaffa takes place with regard to all lands or houses” (p. 558) and makes no distinction between free-hold and lease-hold or between houses and building sites. The Mahomedan law does no doubt not recognise alienation by way of a lease as giving rise to pre-emption. But it does not follow from this that property transferred must not be lease-hold or that it must be free-hold. In Chapter III in dealing with the articles against which the right of pre-emption can or cannot be enforced, the Hedaya expressly mentions articles against which the right cannot operate (p. 558). And it is noteworthy that leasehold land is not included in that category., Futawa Alamgiri is another authoritative text on Mahomedan law and Baillie in his Digest of Mahomedan law which is mainly founded on Futawa Alamgiri mentions six requisites for enforcement of the right of shaffa. And he mentions the sixth requisite or condition as follows (Book VII, c. 1, p. 477):, “There must be milk or ownership of the shufee, or pre-emptor, at the time of the purchase, in the mansion on account of which he claims the right of pre-emption. So that he has no right on account of a mansion of which he is merely the tenant for hire, or that he has sold it before the purchase, or has converted into a musjid, or place of worship.”, This condition in the first place confined to ruba or mansion and has no reference to Akar or land on which it stands. It does not say that the pre-emptor must be the owner of both the mansion (Ruba) and also of the land. Next the meaning of the expression “there must be milk of the shufee” does not really mean that the shufee must be the absolute owner of the tenement. Baillie no doubt translates “milk” as “ownership” and though the word “ownership” may be the nearest equivalent of milk in Arabic, the latter expression according to Mahomedan jurists “covers a wider range of ideas than those included in mere proprietary rights”: see Abdul Rahim's Muhammadan Jurisprudence, p. 262. The idea underlying condition No. 6 is that the pre-emptor must have full and free power of disposition over the property and not that he must also be the full owner thereof., In the present case the plaintiff is admittedly the owner of the Ruba of the superstructure and the site on which it stands also belongs to her at any rate till 1950 and she has a free light of transfer thereof. She is not a mere tenant under Government. She is a grantee of occupancy rights on certain terms and conditions. The parties concerned hold sanads in Form B given in Schedule H of the Land Revenue Code with permanent rights of occupancy though no doubt defeasible on certain terms by Government. Such terms may or may not be enforced by Government. But all lands held even on unrestricted survey tenure could be forfeited, e.g for failure to pay assessment to Government. And if the argument on the other side is carried to its logical conclusion pre-emption can never be claimed except in the case of Inam lands where nothing need be paid to Government., Moorooly Ram v. Baboo Huree Ram simply says pre-emption applies to sales and not to leases even though in perpetuity. The case does not touch the point now under consideration. The case of Baboo Ram Golam Singh v. Nursing Sahoy follows Moorooly Ram v. Baboo Huree Ram and says the right of pre-emption applies to sales only and not to leases in perpetuity, because there is no “milkyut or ownership in the pre-emptor” (p. 45). The conclusion in this case is correct but the reasoning is wrong and is based on a wrong conception of the word “Milkyut or milk” in Baillie's Digest at p. 477. “Milk” in condition No. 6 referred to by Baillie at p. 477 really means as already stated, right of disposition (Milku't-tasa-rruf) Abdul Rahim, p. 263., The case of Mussammat Bibi Saleha v. Haji Amiruddin follows Sheikh Mohammad Jamil v. Khub Lal Raut and suffers from the same infirmity. Both these cases introduce the principle of reciprocity which is not at all recognised by Hedaya or Fatwa Alamgiri in relation to pre-emption. So also in Phul Mohammad Khan v. Kazi Kutubuddin the interpretation of the word “Milk” is assumed to be “ownership” and the attention of the Court does not seem to have been drawn to the three divisions of milk as given by Abdur Rahim at p. 262., The following cases were also referred to: Sitaram Bhaurao v. Sayad Sirajul; Motilal Dayabhai v. Harilal Maganlal; Sitaram Bhaurao v. Jiaul Husan Sirajul Khan; Ram Chand Khanna v. Goswami Ram Puri; Mussummat Sheoratni v. Munshi Lal; Charitar Dusadh v. Bhagwati Dandey and Tejpal v. Girdhari Lal.