Edge, C.J and Blair, J.:— One Maqsud Hasan sold his house in Shamsabad to Muhammad Husain. One Muhammad Hasan, thereupon, claiming under the Muhammadan law of pre-emption applicable to Sunnis of the Hanifi sect, brought his suit for pre-emption. That suit was dismissed on the 7th of October, 1896, on the ground that Muhammad Hasan, the then pre-emptor, had failed to prove that he had made the necessary demands. On the 13th of October, 1896. Muhammad Hasan the pre-emptor died. On the 10th of November, 1896, two of his heirs appealed and on the 8th of December, 1896, the remaining heir was joined as a party to the appeal. The Court below found that the necessary demands had been made, and passed an order under s. 562 of the Code of Civil Procedure remanding the case for trial on its merits. From that order this appeal has been brought.
The short point which we have to decide is—did the right of pre-emption determine upon the death of Muhammad Hasan? All the authorities of which we are aware show that it did; that the right of pre-emption is gone when the pre-emptor is a Sunni of the Hanifi sect, and has not obtained his decree during his life-time, and that the right to sue does not survive to his heirs. [90] The authorities will be found at page 505 of Baillie's Muhammadan Law. Hanifeea (2nd edition); Hamilton's Hedaya by Grady, (2nd edition, p. 560); Tagore Law Lectures 1873 (Shama Gharan Sarcar), p. 534; Tagore Law Lectures, 1884. (Ameer Ali), 2nd edition, Vol. I, p. 603.
In this case Muhammad Hasan had not obtained possession. We allow the appeal, and, setting aside the order of remand, we restore the decree of the first Court, but upon different grounds. There will be no costs of the appeal to the Court below or of the appeal to this Court.
Appeal decreed.