Sir W. Comer Petheram, C.J:— In my opinion, the question referred should be answered in the negative.
Oldfield, Brodhurst and Duthoit, JJ.:— concurred.
Mahmood, J.:— I have arrived at the same conclusion, but I am anxious to explain my reasons for taking this view. I take it as a fundamental principle of the right of pre-emption, that it is based on the inconvenience to co-sharers arising from the introduction of a stranger into the co-parcenary. I have on previous occasions explained that, in cases like the present, where, even though the right is not claimed under the Muhammadan Law, but under a custom recognized in the wajib-ul-arz, the rules of the Muhammadan Law must be applied by analogy, because equity follows the law, and the only system of the law of pre-emption to which we can look for equity to follow is the Muhammadan Law. Under that law, when the ownership of the pre-emptive tenement is transferred or devolves by act of parties, or by operation of law, the transfer or devolution passes pre-emption to the person in whose favour the transfer or devolution takes place; but the rule is essentially subject to the proviso that such person cannot enforce pre-emption in respect of any sale which took place before such transfer or devolution. This rule must also be applied to the present case. The reason why, although the right of pre-emption runs with the land, the plaintiff in this case cannot be allowed to enforce it, is that, to rule otherwise, would in effect be to allow a “stranger” to oust one who was not a “stranger” at the time of the sale. It is found in this [537] case that the sale respecting which pre-emption is claimed occurred on the 5th August 1881. At that time the plaintiff was not a co-sharer, and his title did not come into existence till the 20th August 1881. The reason why pre-emption in respect of the former sale does not go with the subsequent sale is that, while it may be that the plaintiff's vendor had no objection to the sale of 5th August 1881, the plaintiff-purchaser may have objections.
Now, if at the time of the sale of the 5th August, the person who at that time owned the share purchased by the plaintiff had no objection to the sale, that sale gave rise to no cause of action, and nothing which happened afterwards could create, one. In other words, a sale not open to any pre-emptive objection at the time it was made, cannot by a retrospective effect be subjected to objection on account of a subsequent event, namely, the sale of a share in the village to the plaintiff. To hold any other view would be to recognize absurdities which the law of preemption cannot possibly have contemplated. If the purchaser at the later sale (and this is the position of the plaintiff here) were to be allowed to pre-empt in respect of the previous sale, the consequence would be that, whilst the purchaser in the earlier sale could maintain a suit to enforce pre-emption in respect of the later sale, the purchaser at such later sale could maintain a pre-emptive suit in respect of the earlier sale. There would thus be two suits equally maintainable but wholly inconsistent with each other, for each plaintiff would call the other a “stranger,” and the object of each suit would be to preclude the plaintiff in the other suit from the co-parcenary. If both suits were dismissed, the state of things would remain exactly as it was before the suits were instituted: if both suits were decreed, the result would simply be to introduce a kind of exchange—the one plaintiff taking the share purchased by the other plaintiff—a result which of course means that neither could exclude the other from the coparcenary. This would be a reductio ad absurdum of the rule of pre-emption for it would defeat the sole object of the right, namely, the exclusion of strangers. The only possible way to administer the rule of pre-emption would be to decide which of such two inconsistent suits was maintainable. And the, answer is simple. The purchaser in the earlier sale was a co-sharer and not a stranger when the later sale took place, [538] whilst the purchaser at such later sale was a stranger liable to be excluded from the coparcenary by the pre-emptive claim of any co-sharer for the time being. And it follows naturally that the suit of the purchaser in the earlier sale would be maintainable in respect of the later sale, and the later purchaser would have no right of pre-emption in respect of the earlier sale. To allow the later purchaser to maintain a pre-emptive suit in respect of the earlier sale would be to reverse the course which the rule of pre-emption contemplates.
For these reasons I am of opinion that the plaintiff in this case never had any right of pre-emption on the ground of the sale of 5th August 1881, and my answer to the question referred is therefore in the negative.
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