Rule No. 326.

Sanderson, C.J:— In this case the action was for pre-emption. The suit was dismissed by the Court of First Instance on the 16th of January 1914. But on appeal to the District Judge, that decision was reversed, and the District Judge decreed the suit, holding as a matter of fact that the ceremonies had been duly performed, that the Defendant purchaser was not a co-sharer and that the property was joint property at the time of the institution of the suit. From that, the Defendant appealed to the High Court, and that appeal was dismissed by the two learned Judges who constituted the Bench on that occasion. Then a Rule was obtained by the Defendant calling upon the Plaintiff to show cause why that judgment should not be reviewed upon three grounds, the main ground being that the conditions which were necessary to give a right to the Plaintiff to pre-emption did not exist at the date of the decree; and, that is the point which has been mainly argued, and if I may say so very well argued, by the learned Vakil for the Plaintiff on this occasion. In order to appreciate the point it is necessary to state three or four facts. One Bansidhar sold his interest in the property on the 12th of July 1912 to the first Defendant whose name was Nuri Mian, and at that time there were partition proceedings pending. On the 8th of October 1912, the Plaintiff instituted the present suit to assert his right of pre-emption. The partition proceedings were completed on the 2nd of December 1913, by reason of the issue of the notice under sec. 92 of Estates Partition Act. The first decree in the suit, as I have already mentioned, was on the 11th of January 1914, after the date when the partition proceedings were completed. In that decree, the Defendants succeeded, and it was not until the 7th of April 1914, when the District Judge's decision was given, that the Plaintiff got his decree for pre-emption. I do not think it matters which of the dates is taken, whether the 16th of January 1914, or the 7th of April 1914, because both of them are subsequent to the 2nd of December 1913, when the partition proceedings were completed.

Now, the point taken by the learned Vakil on behalf of the Defendants is that in such a case as this, namely, in a suit for pre-emption, the right of the Plaintiff to get pre-emption must exist not only at the time of the sale, but also at the time of the institution of the suit, and finally up to and at the date of the decree. The principle is thus stated in Sir R.K Wilson's Digest of Anglo-Mahommedan Law at p. 400:—“The co-sharer ship, participation in appendages, or ownership of contiguous property, as the case may be,”—this being a case of co-sharership—“must not only exist at the time of the sale which gives rise to the claim of preemption, but must continue to exist down to the time when the suit is instituted, and (it seems) even down to the decree.” Of course, that is not an authority, and I do not refer to it as an authority, but I only refer to it for the purpose of stating what is considered by the Text-Writers as the principle. The question remains whether that principle is right.

Now, both on the ground of principle and also by reason of the authorities to which Mr. Roy Chowdhury has very rightly drawn our attention, although some of them are in my opinion directly against him, I think this Rule must be made absolute. The principle, I think, cannot be better stated than it is, in the case of Tafazzul Husain v. Than Singh(1). That was a case in which partition proceedings had taken place, and at the time of the decree the property was no longer a joint property. The learned Judges said there, “We think that the decisions of the Courts below were correct. The Plaintiff's right was based upon the fact that he was partner with the vendor. To quote Hamilton's Translation of the Hedaya shafa relates to a thing held in joint property and which has not been divided off. The right of shafa is founded on a precept of the Prophet who had said, “the right of shafa holds in a partner who has not divided off and taken separately his share.” I pause there to say that I think that is the principle which applies to this case; the Plaintiff's right was based upon the fact that he was a partner with the vendor; at the time of the sale he was a partner with the vendor; at the time of the institution of the suit he was a partner with the vendor; but at the time the decree was made, in 1914, the joint property had ceased to exist, for the property had been divided into different shares which had become the separate property of the individuals who were entitled to the shares under the partition proceedings: and, it seems to me it would be impossible to make a decree upon the basis upon which the Plaintiff's claim was put forward in this action. Then the learned Judges went on to say, “Having regard to what has happened, the Plaintiff's property has been divided off. He is no longer a partner with the vendor. It is argued that inasmuch as the Plaintiff was a partner at the time of the institution of the suit, it therefore does not matter that a partition has since taken place, particularly if the Plaintiff was not the person who sought partition. Evidently the Plaintiff did feel that if he had prosecuted the partition, it would be fatal to his suit, and this perhaps explains why he withdrew from the application for partition which he himself made in the first instance. It is expressly laid down in the Hedaya, Chap. IV, Book 38, that it is a condition that the property of the shafa remain firm until the decree of the Qazi be passed; and for this reason if the shafi previous to the decree of the Qazi sell the house from which he derives his right of shafa, the reasons or grounds of his right being thereby extinguished, the right itself is invalidated. Applying the same principle to the present case, Plaintiff's right of shafa was founded upon the fact that he was a partner, that is to say, a co-sharer in the mahal. He has ceased to be such co-sharer. Therefore the reasons or grounds of his right had been extinguished before the decree of the Court, and therefore the right itself is also extinguished.” I think that those words apply directly to this case, and I propose to follow the decision in that case and also to say that in my judgment that decision is based upon sound reason and principle, and therefore I think this Rule must be made absolute.

[His Lordship then proceeded to dispose of the appeal in these terms.]

This is now to be taken as the hearing of the appeal, and I would like to say this about that matter to show that I have not overlooked the point taken by the learned Vakil for the Plaintiff. It was clearly within our jurisdiction to hear the Rule, and the hearing of the appeal is a natural consequence, under the Rule, as was mentioned by my learned brother Mr. Justice Mookerjee and of the fact that we made the Rule absolute. In my opinion, we have jurisdiction to hear it, but if there is any doubt about it, I give direction under the second proviso of cl. 39 of the Letters Patent of the Patna High Court that this appeal should be heard in this Court.

With regard to the costs we have considered the matter carefully, and we think that the proper order to make is that the appeal will be allowed and the judgment of the Court of first instance by which the suit was dismissed will be restored. The Plaintiff will pay the Defendant's costs incurred in the Court of first instance and in the first Appellate Court, but there will be no costs with regard to the proceedings in the High Court either with regard to the appeal or with regard to the Rule with the exception that we think that the Plaintiff should pay the Court-fee which was paid on the memorandum of appeal, which we understand is Rs. 150.

The money deposited by the Plaintiff will be returned to him.

Mookerjee, J.:— I agree that this Rule issued on the application for review, which raises an important question of law of first impression, so far as this Court is concerned, must be made absolute.

The Plaintiff seeks to enforce his right of pre-emption under the Mahomedan law in respect of shares in three villages sold on the 12th July 1912, by his co-sharer, the second Defendant, to the first Defendant. He instituted this suit on the 8th October 1912 on the allegation that he had performed all the ceremonies requisite under the Mahomedan law. The Subordinate Judge dismissed the suit on the 16th January 1914. Upon appeal the District Judge gave the Plaintiff a decree on the 7th April 1914. An appeal from the decree of the District Judge was dis-dismissed by this Court (Sharfuddin and Roe, JJ.,) on the 19th January 1916; and this is the judgment we are now invited to review.

The ground on which the application for review is made was admittedly not taken at any stage of the proceedings and it has been argued on behalf of the opposite party that the petitioner should not be allowed to base his application on a ground never taken before. In my opinion, there is no force in this contention. In the first place, as was pointed out by the Judicial Committee in the case of Connecticut Fire Insurance Co. v. Kavanagh “when a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position that the Courts below.” Here the ground assigned in support of the application for review raises a pure question of law, and its determination does not depend upon the investigation of new facts. In the second place, the alleged error, if it be an error, is apparent on the face of the record. The Petitioner contends that the suit should not have been decreed, inasmuch as the right of pre-emption had been lost before the date of the decision of the Subordinate Judge in the Court of first instance. This argument is based on admitted facts. The case was decided by the Subordinate Judge on the 16th January 1914. The District Judge made his decree on the 7th April 1914; that decree may by a fiction be deemed to have been made as early as the 16th January 1914, inasmuch as the District Judge only made that decree which, in his opinion, should have been made by the trial Court. The property was the subject of a proceeding for partition under the Estates Partition Act, 1897, instituted before the Collector, on the 15th May 1909. The partition proceedings were completed on the 2nd September 1913; and consequently on that date, the subject-matter of the litigation ceased to be joint property. The petitioner contends in essence that as the Plaintiff ceased to be a co-sharer in the joint property, on the 2nd September 1913, his right of preemption was extinguished on that date and consequently no decree for preemption could be made thereafter on the 16th January 1914. If this argument is well founded on principle, the error assigned is apparent on the face of the record. I hold accordingly that the application for review must be entertained and considered on its merits.

The substance of the argument for the Petitioner is, that any person who seeks the assistance of a Court with a view to enforce a right of pre-emption is bound to establish that the right existed at the date of the sale, at the date of the institution of the suit and also at the date of the decree of the trial Court. In support of this contention, reliance has been placed upon the decisions in Ram Gopal v. Piari Lal(3) and Tafazzul Husain v. Than Singh. On behalf of the Opposite Party the correctness of these decisions has been called in question, and we have been invited to apply the rule that the decree in a suit should conform to the rights of the parties as they stood at the date of its institution. Now, it may be conceded that ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application, and in a long series of decisions, which will be found reviewed in the case of Rai Charan Mandal v. Biswa Nath Mandal(4), the doctrine has been recognised that there are cases where it is incumbent upon a Court of Justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. In my opinion, the case before us falls within this exception to the general rule, and the decree herein should be made in accordance with the circumstances as they stood at the date of the decree of the trial Court, because otherwise the decree if made in conformity with the prayers in the plaint would be inappropriate and would not do complete justice between the parties. This may be well illustrated by a reference to the prayer in the plaint itself. The Plaintiff seeks a declaration of his title to specified shares in the three villages mentioned in the Schedule, and prays that he may be placed by the Court in possession of such shares. The decree of the District Judge is in strict conformity with these prayers in the plaint. But it has not been seriously disputed that the decree so awarded to the Plaintiff is incapable of execution, by reason of events which have happened since the institution of the suit. The joint property has, during the pendency of the litigation in the trial Court, become transformed into several separate estates, and it is impossible in execution of the decree awarded to the Plaintiff to place him in possession of a share in the joint property as claimed by him in the plaint. It was, indeed, faintly suggested on his behalf that the decree might be modified so as to entitle him to recover possession of the allotment made in favour of the first Defendant. The obvious answer is that such relief, if awarded would be inconsistent with the prayer in the plaint, and with the fundamental notion of pre-emption which lies at the root of that prayer. This, then, is obviously a case where a decree cannot be made in favour of the Plaintiff in strict accord with the terms of the prayer in the plaint. The question, consequently, arises, what decree should be made in favour of the Plaintiff; is he entitled to the specific relief claimed by him or to any substituted relief. In my opinion, the answer must be in the negative.

The true foundation of the right of preemption is explained in two passages in Book XXXV in of the Hedaya. The first of these passages is in these terms: “Shaffa” in the language of the law signifies the becoming proprietor of lands sold for the price at which the purchaser has bought them, although he be not consenting thereunto. This is termed “shaffa” because the root from which shaffa is derived signifies conjunction and the lands sold are here conjoined to the land of the shafi or person claiming the right of pre-emption.” This indicates that the right of pre-emption is a right of substitution. The Plaintiff complains that his co-sharer has transferred his share in the joint property to a stranger, and claims to be substituted in the place of the purchaser of the share of the joint property. If before this can be effected, the property ceases to be joint property, it is obvious that the foundation of the right of pre-emption disappears. This view is fortified by the second passage which is in these terms: “It is an express condition of shafa, that, a man be firmly possessed of the property from which he derives his right of shafa at the time when the subject of it is sold, a condition which does not hold, on the part of his heirs.” (The author here deals with a case where the person claiming the right of pre-emption has died before a decree is made in his favour by the Kazee). “It is moreover a condition that the property of the shafi remains firm until the decree of the Kazee be passed; and, as this does not hold on the part of the deceased shafi, the shafa is therefore not established with respect to any one of his descendants, because of the failure of its conditions.” It has not been seriously disputed by the Plaintiff that the right of pre-emption, in order that it may be enforced by a Court, must not only arise on the sale, but be also existent at the date of the institution of the suit; for, it is unquestionable upon the authorities that if a person who claims a right of pre-emption, ceases to be interested in the joint property before the institution of the suit, he cannot obtain assistance from the Court. Consequently, the view cannot be maintained that the right of pre-emption which arises from the moment the sale is effected by the co-sharer, is enforceable as it stands at the time of its origin; it is liable to be extinguished by events subsequent. The only point of difference between the Plaintiff and the Defendant is, whether the point of time with reference to which the existence of the right is to be determined is the date of the institution of the suit or the date of the decree by the trial Court. In my opinion, for the reasons already assigned, it is plain that the right must exist and retain its enforceable character when the decree is made by the Primary Court. This view was adopted in Ram Gopal v. Piari Lal and Tafazzal Hussain v. Than Singh; these decisions are mentioned without dissent by well-known text-writers such as Ameer Ali, Tyabji and Wilson. It is also worthy of note that the Chief Court of the Punjab has accepted the same view in Sanwall Das v. Gur Prasad(5), though a contrary view had been adopted in an earlier case. Faiz Baksh v. Ramjidas(6). In the case just mentioned, which was decided by a Full Bench of eight Judges, the nature of the right of pre-emption was fully analysed by Chief Justice Clark and Mr. Justice Chatterjee. Mr. Justice Chatterjee observed as follows: “A pre-emptor is bound to show that he was clothed with the right at the date of sale and also at the date of suit and up to the time of the final decree or should have his claim dismissed. If the pre-emptor loses his right within the period mentioned above, whether by his own act or from causes beyond his control, his suit fails. The pre-emptor cannot get a decree unless he maintains the right on which he sues to the end.” Chief Justice Clark added that “conceding that the plaintiff pre-emptor must retain the prior right up to time of institution of suit, and even up to decree, a Plaintiff must have a subsisting cause of action up to the time of the decree. The possession of the property in which the right of pre-emption inheres is a part of his cause of action, and if he loses that property either voluntarily or involuntarily before decree, his suit must fail.” This is obviously consistent with sound sense; for if the contrary opinion were accepted, the result would follow that relief by way of pre-emption may be awarded to a person who according to the altered circumstances as they exist at the date of the decree, can show no reason whatever why he should be placed in that position of advantage.

Accordingly I agree that this Rule must be made absolute, and the decree of this Court discharged. I also concur in the order which the Chief Justice proposes to make in the appeal and in respect of the costs of the Rule and the appeal.

N.G

Appeal allowed.