This was a suit for possession of a share in a mouzah by virtue of a right of pre-emption. In the mouzah in which the share in suit is situate, plaintiff and defendant No. 3, Jewan Lall, each, owned a 4-pie share, and the defendant No. 2, Tirput Lall, owned a share of the same extent up to the 12th of January 1875. This is the share in suit. On that date he sold it by a by name to defendant No. 1, Rowshun Lall, and on the 19th of february following, Rowshan Lall again sold it by a similar deed defendant No. 3. The moonsiff decreed one-half to the plaintiff, and one half to Jewan Lall, and against that decision both parties appealed. It appeared that the plaintiff only heard of Rowshun's deed, from Tirput, on the 7th of March 1875, that is, after the date of the second bynama, and on that date Jewan Lall was in possession as proprietor of this share. The Judge held that no pre-emption could be enforced against Jewan, being a co-sharer, and he dismissed the suit.
The plaintiff specially appealed to the High Court, when the case was referred by Mitter, J., to a Full Bench in the following terms:—
“In this case two objections have been taken to the judgment of the lower Appellate Court: first, that the District Judge has not tried the question whether the defendant Jewan Lall is a co-sharer in the putti of which the share in suit is a component part; and, secondly, that admitting that Jewan Lall is a co-sharer, the plaintiff is entitled to a partial decree. The first objection does not appear to me to be tenable. It is admitted that the plaintiff has adduced no evidence upon that point, while on the other hand the defendant has adduced evidence to establish that he is a co-sharer in the putti in question. Under these circumstances, the Courts below were right in treating the defendant as a co-sharer in the putti of which the disputed shared is a part. I am of opinion, therefore, that I ought not to yield this objection.
“As regards the next objection, it appears to me that the case cited by the Moonsiff is in conflict with that of Mohesher Lall v. Christian, 6 W.R, 250. There being this conflict in the decisions of this Court, I think it right to refer the case to a full Bench. The question referred is, whether under the Mahomedan law one co-parcener has a right of pre-emption against another co-parcener?”
Baboo Durga Pershad, for Appellant, cited Hamilton's Hedays, vol. 3, bk. 38, ch. 1; Bailie's Digest of Mahomedan Law, (p. 494, Ed. of 1865,) ch. 6, para. 2.
[During the argument Mr. Justice Ainslie inquired how the plaintiff gained a right of pre-emption against Jewan Lall? Were the preliminaries necessary for claiming the right completed as to him? Mr. Justice Jackson said it did not appear that the right was completed against Rowshun; nor that the plaintiff made any complaint against Jewan, who came in as a party under section 73 of Act VIII of 1859. The learned pleader for the plaintiff intimated that, supposing the right was completed against Rowshun that would be sufficient as against Jewan who should be taken as his representative. The Chief Justice said that the Court would not recognise such a contention, but would insist that the preliminaries should have been completed Jewan's case also. If the plaintiff had not heard, and had no means of hearing, of the sale to Jewan, he might have made the demand in Court when Jewan intervened.]
Baboo Grija Sunker Mozoomdar, for Respondent, cited Mohesher Lall v. Christian, 6 W.R, 250.
The judgment of the Full Bench (1) is as follows:—
We are of opinion that by the Mahomedan Law one co-parcener has no right of pre-emption as against another co-parcener. There appears to be no reason, either upon principle or authority, why the right of Shuffa should exist as between co-parceners; and the rule as laid down in Hamilton's Hedaya, vol. 3, bk. 38, chap. 1, appears to have been misunderstood in this respect. That rule merely prescribes that any one partner (or co-parcener) of a property has a right of Shuffa as against a stranger who purchases a share from his co-partner; and does not mean that the right exists as between co-partners, who may purchase shares from one another. The object of the rule, as explained in that chapter and in chapter 3, is to prevent the inconvenience which may result to families and communities form the introduction of a disagreeable stranger as a co-parcener or near neighbour. But it is obvious that no such annoyance can result from a sale by one co-parcener to another. The only result of such a sale would be to give the purchaser a larger share in the joint property than he had before, and perhaps larger than the other co-parceners have.
The only authorities in this Court, to which our attention has been called, are entirely in favour of this view. (See Moheshur Lall v. Christian, 6 W.R, 250, and Teeka Dhurn Singh v. Mohur Singh, 7 W.R, 260). The case of Roshun Mahomed v. Mahomed Kubeen, 7 W.R, 150 decided by Justices Kemp and Markby appears, when the facts of it are properly understood, to have no application at all to the questions before us. We find from the record of that case, that the true state of facts was this: One out of three co-parceners had sold his share to a stranger. One of the other co-parceners had exercised the right of Shuffa against the stranger, and obtained the sale of the share to himself; and the only question in the case was, whether the remaining co-parcener had a right to participate in the purchase with the co-parcener who had thus obtained it.
We therefore decide the question referred to us in the negative, and dismiss the special appeal with costs.