Patkar, J.:—

In this case the plaintiff, a Mahomedan, sues to enforce his right of pre-emption against the defendant, a Bene Israel. The vendors are also Mahomedans being the brothers of the plaintiff himself. The question, therefore, in this case is whether the general Mahomedan law of pre-emption can be enforced against a non-Mahomedan Israel, the defendant vendee, in Ahmedabad. Both the lower Courts held that the plaintiff has not proved the right to pre-empt.

The property in suit is an open land about 30 feet by 45 feet adjoining the plaintiff's land. It is urged on behalf of the appellant that the right of the plaintiff to pre-empt is an incident which the custom of preemption attaches to the property in Ahmedabad, and the purchaser, even though a non-Mahomedan, is bound by the Mahomedan law in the matter, and cannot be permitted to evade the conditions and obligations under which the property is held, and reliance is placed on the Full Bench ruling of the Allahabad High Court in Gobind Dayal v. Inayatullah. It is further urged that the custom of pre-emption is established as prevailing in Ahmedabad since 1823 and reliance is placed on the cases of Gordhandas Girdharbhai v. Prankor, Rewa v. Dulabhdas; and Motilal Dayabhai v. Harilal Maganlal, and that the right of pre-emption is enforceable irrespective of the persuasion of the parties concerned according to the ruling of the Privy Council in Jadu Lal Sahu v. Janki Koer. On the other hand it is contended that the law of preemption applies to Mahomedans and by custom to Hindus in Surat and Broach, and even if it be held as applicable to the City of Ahmedabad, it can affect only the Hindus and Mahomedans and would not apply to the defendant, a Bene Israel, unless it was proved that the defendant was bound by the law of pre-emption, by custom, that no custom affecting the defendant Bene Israel has been alleged in the plaint much less proved in the case, and that the law of pre-emption is not an incident relating to the property, and reliance is placed on the Full Bench decision of the Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan Shaha.

In Digambar Singh v. Ahmad Said Khan, their Lordships of the Privy Council having described the genesis of the Mahomedan law of pre-emption have observed (p. 18):—

“A custom of pre-emption was doubtless in all cases the result of agreement amongst the shareholders of the particular village, and may have been adopted in modern times and in villages which were first constituted in modern times. Rights of pre-emption have in some provinces been given by Acts of the Indian Legislature. Rights of pre-emption have also been created by contract between the sharers in a village. But in all cases the object is as far as is possible to prevent strangers to a village from becoming sharers in the village. Rights of pre-emption when they exist are valuable rights, and when they depend upon a custom or upon a contract, the custom or the contract, as the case may be, must, if disputed, be proved.”

According to the strict Mahomedan law, the law of pre-emption is not confined to Mahomedans. It is also allowed to Zummees or infidels, that is, to Christians and Hindus and the like, for Christians and Hindus are considered infidels by Mahomedans. See Baillie, 473; III Hedaya 595. So long as the country was under the Mahomedan Government, the right of preemption was extended to all classes of persons without any distinction of creed, colour or birth. The right of pre-emption is given first to a partner in the land sold, secondly, to the partner in the immunities or appendages of the land such as the right to water and to roads, and, thirdly, to a neighbour. The Mahomedan law is not the law of British India and can be enforced so far as the laws of British India have directed it to be observed. When the Mahomedan law has ceased to be the law of the country, the question arises whether the Mahomedan law of pre-emption should be enforced against a non-Mahomedan Bene Israel without giving him the benefit of that law in other cases in which he would stand in the position of a pre-emptor. That question was answered in the negative by Mitter, J. in Sheikh Kudratulla v. Mahini Mohan Shaha Mahmood, J. in Gobind Dayal v. Inayatullah entirely agrees with a great deal of the reasoning of Mitter, J. in this respect. He, however, differs from Mitter, J. on the ground that the right of pre-emption is an incident of the property and differs from the view of Mitter, J. that the right of pre-emption is nothing more than merely the right of re-purchase not from the vendor but from the vendee who is treated for all intents and purposes as the full owner of the property which is the subject-matter of that right, and holds that it is not a right of re-purchase either from the vendor or from the vendee involving any new contract of sale but is simply a right of substitution entitling the pre-emptor by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all rights and obligations arising from the sale. It was held by the Full Bench of the Allahabad High Court in Gobind Dayal v. Inayatullah, that where the pre-emptor and vendor are Mahomedans and the vendee a non-Mahomedan, the Mahomedan law is to be applied in the matter. A contrary view was held by the Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan Shaha. The view of the Allahabad High Court has been followed by the Patna High Court in Achutananda Pasait v. Biki Bibi. The Madras High Court in Ibrahim Saib v. Muni Mir Udin Saib held that the Mahomedan doctrine of pre-emption was not law in the Madras Presidency. So far as the Bombay Presidency is concerned, it was held by Batchelor, J. in Mahomed Beg Amin v. Narayan Meghaji that the reasoning of the decision of the Madras High Court in Ibrahim Saib v. Muni Mir Udin Saib is applicable generally to the Bombay Presidency with the exception of Gujarat. The rule of pre-emption is recognised by custom among Hindus who are either natives or domiciled in Bihar and certain parts of Gujarat, such as Surat, Broach, Godhra and Ahmedabad, but the danger of extending the customary law to the whole of Gujarat, as laid down in Gordhandas Girdharbhai v. Prankori and Rewa v. Dulabhdas, has been referred to by Beaman, J. in Dahyabhai Motiram v. Chunilal Keshordas, where it was held that where a custom of this kind is alleged as a foundation of the claim and is denied by the defendant, the trial Judge would insist upon a strict proof of it and would not be misled by the general dicta to be found in the two cases referred to. Batchelor, J., in Mahomed Beg Amin v. Narayan Meghaji, refers to the dissenting view of Beaman, J. in Dahyabhai Motiram v. Chunilal Keshordas and expresses his view that the judicial recognition of preemption in Gujarat, particularly amongst Hindus, always appeared to be anomalous and artificial. With regard to Ahmedabad, it was held by Macleod, C.J in Motilal Dayabhai v. Harilal Maganlal,(7) referring to the case of Umbaram Mukundas v. Rughoonath Laldas,(8) that in Ahmedabad the custom of pre-emption exists among the Hindus. The right of pre-emption is a right to acquire by compulsory purchase, in certain cases, immoveable property in preference to all other persons. It is not one of the matters in suits respecting which the Mahomedan law is expressly declared to be the rule of decision when the parties are Mahomedans. But some of the Courts of British India have, on grounds of justice, equity and good conscience, generally administered the law as between Mahomedans in claims for pre-emption. In the Madras Presidency the right of pre-emption is not recognised even between Mahomedans, unless by local custom, as in Malabar. A right or custom of pre-emption is recognised as prevailing among Hindus in Behar and certain parts of Gujarat, such as Surat, Broach, Godhra and Ahmedabad. See Wilson's Anglo-Mahomedan Law, paragraphs 350 and 351.

The defendant in this case is a Bene Israel. It has not been alleged that Bene Israels are bound by this custom. The question, therefore, whether the defendant, a Bene Israel, is bound by the law of pre-emption when the vendor and the pre-emptor are Mahomedans governed by the custom of pre-emption in Ahmedabad, will have to be determined by the view we take as to the correctness of the decision in Gobind Dayal v. Inayatullah. The view of the Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan Shaha is opposed to the view of the Allahabad High Court. The cases dealt with by the Full Bench in the Allahabad High Court and Calcutta High Court proceeded on a consideration of the Regulations then in force. The Regulations in force at the decision of the Calcutta High Court were Bengal Regulation IV of 1793, section 15, and Regulation VII of 1832 section 9. The Allahabad decision turns on the construction to be placed on section 24 of the Bengal Civil Courts Act, VI of 1871, which came into force after the Full Bench ruling of the Calcutta High Court. It is not clear how the Bengal Civil Courts Act was binding on the Allahabad High Court and fell to be considered by the Full Bench ruling in Gobind Dayal v. Inayatullah. In Bombay the governing regulation is regulation iv of 1827, clause 26, which is as follows:—

“The law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant, and in the absence of specific law and usage, justice, equity and good conscience alone.”

The language of the Regulations considered by the Calcutta and Allahabad High Courts is somewhat different. Mahmood, J. in Gobind Dayal v. Inayatullah, went to the length of holding that the law of pre-emption is a religious usage or institution within the meaning of section 24 of the Bengal Civil Courts Act, VI of 1871. Sir Roland Wilson in his Anglo-Mahomedan Law (section 350), after referring to the view of Mahmood, J. observes that this reasoning proves too much, for if it were so, the whole of the Mahomedan Shariat would be enforced including the law of property and contract. The other Judges, Oldfield, J. and Petheram, C.J, have not expressed their concurrence with the view of Mahmood, J. on this point, and held that the Court was not bound to administer Mahomedan law in claims of pre-emption, but came to the conclusion that the right of pre-emption was an incident of the property and it was equitable to apply the rule to cases where the purchaser was a Hindu on the ground of equity, justice and good conscience. With regard to the question whether the right of preemption is an incident of the property, I agree with the view of the Calcutta Full Bench in Sheikh Kudratulla v. Mahini Mohan Shaha that the right of pre-emption is nothing more than a right of re-purchase from the purchaser who is recognized for all intents and purposes as the full legal owner of the property; and 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. However, the right of pre-emption is a weak right inasmuch as, if the Shaffadar dies before the decree for possession, his shaffa becomes absolutely extinct. This indicates that the right is not a right which attaches to the land but is a personal right. The right of pre-emption arises only out of a valid, complete and bona-fide sale. It does not arise out of a gift, sadak (gift made with the object of acquiring religious merit), wafk, inheritance, bequest (Baillie, p. 471), or lease even though in perpetuity (see Dewanutulla v. Kazem Molla) or a mortgage even though it may be by way of conditional sale (see Gurdial Mundar v. Raja Teknarayan Sing). See Mulla's Mahomedan law, paragraph 182. It, therefore, follows that the right of pre-emption can only arise when there is a valid, complete and bona-fide sale and in the case of no other alienation. If the right of preemption is an incident of property, it ought to affect alienations other than that of a valid, complete and bona-fide sale. Further the Mahomedan law itself has sanctioned artifices for the purpose of defeating the right of pre-emption: see Baillie's Digest of Mahomedan law, pp. 512 and 513. A vendor wishing to evade the law has to reserve the breadth of one cubit extending along the house of the Shaffa to defeat his right. One of the artifices to evade the law of pre-emption is to sell for one thousand derhans or more though it is intended to sell for one hundred derhans, and the purchaser may give to the seller a piece of cloth of the value of nine hundred rupees in lieu of the price. The law of pre-emption, therefore, can be evaded by stating a very high ostensible price with the nominal agreement to return most of it in some shape or other. Further, if the seller and purchaser declare that it was a mere fiction or tuljeea, the Court must hold that they have a right to declare it to be invalid notwithstanding the evidence to the contrary showing that it was a sale intended to take effect. Even assuming that these are rules of evidence and procedure which have been abrogated by the law of evidence and procedure in British India, still it is clear that the right of preemption cannot be exercised after the death of the pre-emptor or in case of any alienation other than a complete, valid and bona-fide sale. It follows, therefore, that it is not an incident relating to the property, but is an option which is to be exercised by a Mahomedan owner after the sale of the property of his neighbour when the title of a third person has become complete. In the case of a joint Hindu family the Hindu law is held binding even as against a non-Hindu alienee, if a sharer unauthorizedly alienates property to a non-Hindu. In all kinds of alienations, e.g, sale, mortgage, lease or gift where the vendor purports to exercise his right of alienation in excess of his strict legal right, the non-Hindu alienee is bound by the Hindu law on account of the defect of title in his vendor. I think, therefore, that in the case of the exercise of the right of pre-emption, there is no defect of title in the vendor. The right of pre-emption comes into existence after a valid, complete and bona-fide sale, that is, after the title has passed to the purchaser, and cannot be exercised in the case of any other alienation.

Coming to the Regulation (IV of 1827, clause 26) which governs the mofussil in the Bombay Presidency, the law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case which would include the Indian Acts of legislature. It was held by Batchelor, J., in Mahomed Beg Amin v. Narayan Meghaji that the rules of pre-emption place a clog or fetter on the freedom of sale for which the Transfer of Property Act and the Indian Contract Act provide. Shah, J., however, has hesitated to accept the contention on the ground, first, that pre-emption according to the Mahomedan law has been enforced in other parts of India and even in some parts of Gujarat in the Bombay Presidency and that Chapter III of the Transfer of Property Act which relates to sale of immoveable property does not purport to deal with the right of the vendor to sell, but only provides the mode of effecting sales and contains provisions as to the rights and obligations of the seller and buyer in the absence of a contract to the contrary, but both the learned Judges have come to the conclusion that preemption is opposed to justice, equity and good conscience. Batchelor, J., held that the view of the Madras High Court in Ibrahim Saib v. Muni Mir Udin Saib was applicable generally to the Bombay Presidency with the exception of certain parts of Gujarat. The Mahomedan law of pre-emption, therefore, cannot be accepted in its entirety except on the ground of custom. In the Full Bench case of Gobind Dayal v. Inayatulla all the Judges agreed that in the case of a non-Mahomedan vendee the rule of Mahomedan law of pre-emotion could be applied on the ground of equity, justice and good conscience. That view is not accepted by the Madras High Court in Ibrahim Saib v. Muni Mir Udin Saib, and the Calcutta High Court in Sheikh Kudratulla v. Mahini Mohan Shaha, and by the Bombay High Court in Mahomed Beg Amin v. Narayan Meghaji. The right of pre-emption, in my opinion, not being an incident of the property for the reasons I have stated, and not being applicable on the ground of justice, equity and good conscience according to Regulation IV of 1827, clause 26, and it being not a law of the defendant who is a Bene Israel, under clause 26 of the Regulation of 1827, I think in the absence of custom a non-Mahomedan Bene Israel vendee cannot be bound by the law of pre-emption even though the law of pre-emption may have been established as customary law applicable to Hindus and Mahomedans in Ahmedabad. In Nusrut Reza v. Umbul Khyr Bibee Phear, J., observes (p. 310):—

“The right to pre-emption is very special in its character. It is founded on the supposed necessities of a Mahomedan family, arising out of their minute sub-division and inter-division of ancestral property; and as the result of its exercise is generally adverse to public interest, it certainly will not be recognised by this Court beyond the limits to which those necessities have been judicially decided to extend.”

The remark of Privy Council in Jadu Lal Sahu v. Janki, Koer that the right of pre-emption was enforceable irrespective of the persuasion of the parties concerned is not to be taken in a very wide sense, but must be taken as referring to the persuasion of the parties to the litigation who were Hindus of Behar with reference to whom the custom of pre-emption was recognised. In the case of a Christian vendee it was held by the Calcutta High Court in Baboo Mohesh Lall v. Mr. John Christian and Co. that the right of preemption is not a matter of title to property but is rather a right to the benefit of a contract and when a claim is advanced on such a right, it must be shown that the defendant is bound to concede the claim either by law or by some custom to which the class of which he is a member is subject on grounds of justice, equity and good conscience.

I think it would be manifestly unjust and inequitable that the 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. There is no allegation in the plaint that the law of pre-emption is binding on the class to which the defendant belongs, namely, the Bene Israel community. If such an allegation had been made, it would Have been necessary in this case to send down issues to the lower Court, first, whether there is a custom among the Bene Israels recognising the law of preemption; secondly, whether the defendant is domiciled in or a native of Ahmedabad: see Parsashth Nath Tewari v. Dhanai Ojha; and, thirdly, whether the law of pre-emption applies to an alienation of a small open piece of land in the city: see Jagjivan Haribhai v. Kalidas Mulji and Ram Chand Khanna v. Goswami Ram Puri.

The general Mahomedan law of pre-emption is not applicable by legislation but can only be enforced in the city of Ahmedabad as a customary law so far as the Mahomedans and Hindus are concerned, and it must be confined to the strict limits within which that law has been recognised by judicial decisions and may on evidence be proved to exist. It may also apply when there is a special contract as in the case from North Kblaba in the Bombay Presidency, Sitaram Bhaurao v. Sayad Sirajul.

In the present case there is no allegation in the plaint that there is a custom binding on the Bene Israel defendant, or that the defendant was bound by notice of any contract with the vendor.

On these grounds I think that the view of both the lower Courts that the Mahomedan law of pre-emption is not enforceable against a non-Mahomedan vendee, a Bene Israel, is correct. I would, therefore, confirm the decree of the lower appellate Court and dismiss the appeal with costs.

Murphy, J.:— The facts preceding this litigation are, that plaintiff and his brothers owned some immoveable property in Ahmedabad City, which was partitioned between them by decree in Suit No. 409 of 1909. The land in question—an open plot—fell to the other brothers' share.

On June 2, 1922, plaintiff sold some part of the land which had fallen to his share to the present defendant, and about a month later, he alleges, he heard that defendant had bought the open site in question from his two brothers for Rs. 4,700. On this, according to the plaint, he made the two demands which are obligatory on a neighbour wishing to exercise the right of pre-emption, and on their being refused, he brought this suit to enforce his rights.

The subaltern points in issue have not been decided by the Courts below, as they have both found that it was not necessary to decide them as the plaintiff has no right of pre-emption which he can exercise on the facts, and have dismissed his suit.

The second appeal raises the question whether a Mahomedan owner of property can claim to pre-empt, on the ground of vicinage, an adjacent property sold by its owners, who here happen to be the pre-emptor's separated brothers, to a member of the Bene Israel community. The original Court was of opinion that the general law of pre-emption is part of the personal law of Mahomedans, and that it does not attach to the land. Though this is true in a sense, as pre-emption is a peculiar feature of Mahomedan law, it is not generally true, for in certain areas in India, in the Punjab and the United Provinces, it is the Statute law of the land, for example, in the British District of Ajmer-Merwara, where by the Regulation in force it is deemed to prevail in all village communities and to extend to agricultural land as well as to land in the village site, while in suburban areas it is deemed not to prevail in the absence of a custom or usage to the contrary. It may thus be either a personal, or a local law.

In this Presidency, however, there is no statute law governing the point, and where the rules of preemption are enforced, it is by the force of custom. By Regulation IV of 1827, the law to be applied in this Presidency is, firstly, the statute law, then the usage of the country, and if none such appears, the law of the defendant, and in the absence of specific law and usage, justice, equity and good conscience.

Now it has been held by this Court (Batchelor and Shah, JJ.) in the case of Mahomed Beg Amin v. Narayan Meghaji that in this Presidency, the rule of preemption cannot apply on the last of these grounds, and that it is not part of natural justice, equity and good conscience to enforce it. It is not here the law of the defendant.

The plaintiff can, therefore, only succeed if he can show that it is the usage of the country, that is of Ahmedabad City—and if he can prove a “custom” amounting to a rule of law.

So far no evidence has been led in the case, and both the Courts below have relied on the reported cases, to which object the argument before us has also largely been directed. After citing the cases reported in Mr. Mulla's. Mahomedan law, at p. 151, and the authorities contained in Motilal v. Harilal and Jagjivan v. Kalidas, the learned Subordinate Judge was of opinion that there is not a single case to show that the right of pre-emption was ever judicially recognized on the ground of custom or usage, in respect of houses or house-sites in Ahmedabad, in favour of a Mahomedan pre-emptor and against a non-Mahomedan Israelite vendee from Mahomedan vendors. Finding further, that no custom or usage was pleaded in the plaint, the suit was dismissed.

In first appeal, the learned District Judge remarked that, as noted by the original Court, no authority on which the right of pre-emption was claimed had been stated in the plaint, and that the respondent's contention that there was no right of pre-emption was a sufficient answer.

On the merits, however, the learned District Judge also held that there was no case in point in support of the appellants' alleged right, and he dismissed the appeal.

It is evident that we are in a Presidency in which the general law of pre-emption does not apply, dealing with a particular locality, and that authorities from other parts of India cannot be of high value except by analogy and on very general points. We have been referred to the ruling in Gobind Dayal v. Inayatullah, where the late Mr. Justice Mahmood has discussed the law of pre-emption at some length, and to several authorities from Calcutta and Allahabad, but the point before us, as I have said, is a very narrow and specific one.

The earliest reported case which appears to me to be of importance is the one of Gordhandas Girdharbhai v. Prankor. It was held in that case, in 1869, that the custom of pre-emption prevailed among the Hindus of Broach and Surat; but the judgment is a very short one, and it has been critically examined and its authority has been doubted, by the late Sir Frank Breaman, J., in the case of Hari Balu v. Ganpatrao Lakhurjirao.

The case of Mahomed Beg Amin v. Narayan Meghaji was from the Khandesh District, and it was held that the rule of pre-emption did not there apply; as also in the cases of Sitaram Bhaurao v. Sayad Sirajul and Sitaram Bhaurao v. Jiaul Hasan Sirajul Khan. These two rulings relate to the same case which was from the Kolaba District and in which the right enforced, as between a Mahomedan and a Hindu, was one depending on contract. In Jagjivan Haribhai v. Kalidas Mulji, the right was enforced as between Hindus in respect of a house and some land in Surat: while it was also enforced among Jains in Ahmedabad in the case of Motilal Dayabhai v. Harilal Maganlal, while it failed of being enforced among Hindus in Jambusar, because the proper demands had not been made. Again, in the case of Vithaldas Kahandas v. Jametram, the rule was assumed to prevail among Hindus in the towns of Surat and Broach. In the very early case of Umbaram Mukundas v. Rughoonath Laldas the rule was held to apply to Hindus, on the ground that the Mahomedan law was paramount. The result of all these rulings appears to me to be as follows:— In the earliest case of 1822, it was assumed that the rule of pre-emption was valid in Gujerat on grounds which could not perhaps to-day be held to be sound; and in 1869, on the grounds which have been examined, and found not to be very firm, by the late Sir Frank Beaman, in respect of property in Surat and Broach. In the other cases in which such rights have been enforced, or have been tacitly assumed to have existed, it was among Jains and Hindus in Broach, Surat, Godhra and Ahmedabad and the decisions all appear to me to be, if I may say so with great respect, somewhat reluctant and hesitating.

Assuming, however, without deciding, that the general question, whether the rule of pre-emption may be enforced among Mahomedans in Ahmedabad and among Hindus in that place, must, on the strength of these rulings, be answered in the affirmative, there remains the particular issue in this case, which is, whether such a right can be enforced by a Mahomedan neighbour against an Israelite or, speaking more generally, against a purchaser who is neither a Mahomedan, nor a Hindu?

As I have already said, if such a right can be enforced at all, it must in this Presidency be on the strength of usage or custom, under the Regulation of 1827; and also on the more general ground that, because the law of pre-emption is part of the personal law of Mahomedans, and may have been adopted as their own custom by certain Hindus. But these facts cannot bind members of other communities: cf. Parsashth Nath Tewari v. Dhanai Ojha. It is clear that there is no course of decisions, or even a single authoritative decision, in favour of the prevalence of any such custom as would enable the plaintiff to enforce his right against the present defendant, and, in my opinion, if he can succeed at all, he must prove the custom by evidence. None has been taken in the case and we have to decide whether we should remand the suit for this to be done or not? Against doing so is the plaintiff's conduct in assuming the existence of the right to pre-empt, and failing to plead the custom, as has been noted by the Courts below.

I think that in the circumstances it is not necessary to send down an issue for a finding whether a custom imposing the rule of pre-emption on persons of defendant's persuasion exists in Ahmedabad or not.

I agree that the lower appellate Court's decree should be confirmed and that the appeal should be dismissed with costs.

Decree confirmed.

B.G.R