Sir John Edge, C.J:— The plaintiffs in this case purchased certain bighas of land in a village. The defendant, who was a co-sharer in the village, brought a pre-emption suit in respect of that sale in which the plaintiff's were defendants, and, having established his right under the wajib-ul-arz of the village to pre-empt the property, got a decree. In that suit the present defendant did not ask for a declaration that he was entitled to be treated as a purchaser as from the date of the sale to the present plaintiffs, nor did he ask to have it declared that he was entitled to the rents and profits as from the date of the sale to the present plaintiffs, nor did he ask for mesne profits.

In the present suit, which was instituted in a revenue Court, the plaintiffs seek to recover the profits which accrued in respect of the property which was in question in the pre-emption suit for rabi 1290 fasli and kharif 1291 fasli. In the revenue Court the Deputy Collector dismissed the plaintiffs' suit, holding that the effect of the decree in the pre-emption suit was to vest the property in the present defendant as from the date of the purchase by the now plaintiffs, and that the plaintiffs not being recorded co-sharers [236] in the village at the date of the institution of the present suit, could not maintain the suit in the revenue Court.

On appeal the District Judge, holding that until a pre-emption decree is actually enforced by possession being obtained, the original vendee and not the pre-emptor is entitled to the profits of the property sold, and that under s. 93, cl. (h) of the Rent Act (XII of 1881), a person who was a recorded co-sharer when the profits accrued can sue for his share of the profits notwithstanding that at the time of suit he is no longer a recorded co-sharer, set the decree of the Deputy Collector aside and remanded the suit for trial on the merits. From that order of the District Judge this appeal has been brought.

The suit having gone on appeal to the District Judge, it is in my opinion immaterial now to consider whether or not the suit was instituted in the right Court, as the District Judge had under ss. 206, 207 and 208 of the Rent Act (XII of 1881), jurisdiction to dispose of it as therein provided, irrespective of the question as to whether or not it had been instituted in the right Court. It appears to me that the question as to whether or not the plaintiffs are entitled as against the defendant to the profits or any part of them claimed, is to be determined by the decree which the present defendant obtained in the pre-emption suit. If the pre-emption suit had been differently framed and a declaration asked for that the present defendant was entitled to the property as from the date of the sale to the now plaintiffs, and such a declaration had been decreed, it is clear to my mind that the present suit could not be maintained so long as such a decree stood. I express no opinion as to whether such a decree could have been obtained. I must regard the decree in the now-defendant's pre-emption suit as one which merely avoided the sale to the now plaintiffs as from the date when that decree became final by the payment in accordance with the decree by the present defendant of the pre-emption price which was decreed, and as vesting in him the rights of ownership as from that date only.

From that date the now plaintiffs, original vendees, became in law divested of all interest in the property, and consequently in my [237] opinion could not be entitled to any profits which subsequently accrued due, whether at that date or subsequently the successful pre-emptor obtained possession of the property.

To hold that the successful pre-emptor's rights would in such a case be postponed until he had obtained possession of the property, would be to vary or stultify the decree which had been made, and would encourage defeated defendants in a pre-emption suit to resist and obstruct as long as possible the execution of a decree which had been duly obtained.

It is to my mind unnecessary to consider what may or may not have been the rights of a pre-emptor and a displaced vendee respectively according to the Muhammadan Law of pre-emption, as what we would have to see in such a case in execution would be that the decree of our Courts was enforced, and the party obtaining his decree got the fruits of it. Besides, the right to pre-empt in this case depended on the contract or custom embodied in the wajib-ul-arz and not upon the Muhammadan Law of pre-emption.

In my opinion, the case as to the profits which accrued between the date of the sale and the date when the present defendant in accordance with the decree paid the decreed pre-emption price stands thus. The vendor having parted with his interest by the sale could not be entitled to those profits. The decree did not entitle the pre-emption to those profits. It follows that the original vendees must in this case be the persons who are entitled to them.

For reasons which differ as I have indicated from those of the District Judge, I am of opinion that this case was properly remanded and that this appeal should be dismissed.

I would also order that costs here and below should abide the event.

Straight, J.:— I am of the same opinion.

Brodhurst, J.:— I concur.

Tyrrell, J.:— I am of the same opinion.

Mahmood, J.:— I understand the facts of this case to be the following. On the 4th of January 1883, one Radha Ballab exe-[238] cuted a sale whereby he conveyed his share in certain zemindari estate to Sri Ram and Chet Ram, and the sale-deed was registered on the 5th of January 1883.

On the 6th of March 1883, Deokinandan, defendant-appellant, being a co-sharer in the estate of which a portion was sold as abovementioned, sued to enforce his right of pre-emption under the wajib-ul-arz at the village. The clause relating to the right of pre-emption is in the following words in that document:—

Now these are Hindustani words, and as?they are words of my own language I will undertake to translate them into English as literally as possible in the following words:—

“Every sharer has the power to alienate his share, but first to the hands of his brother and nephews who may be sharers, and in case of their refusal to other owners of the thoke, then to the hands of the owners of a second thoke, and if even they do not take it then the transfer may be made in favour of any one lie may like. And if in respect of the diminution or excess of price between the seller and the pre-emptor (shaft) any controversy comes in front, then according to the value of land in the adjaoent villages the decision shall be made.”

The reason why I have translated this clause of the wajib-ul-arz so minutely will appear from what I shall have to consider later on in delivering my judgment. Meanwhile it seems enough to point out that the clause begins by saying that every co-sharer of the village has power to transfer his share, and, after this statement, which only affirms one of the necessary incidents of ownership, it subjects the general right of transfer to conditions requiring that the intending seller should in the first instance offer to sell his [239] share to his co-sharers in the order mentioned in the clause, which also provides that in case of dispute as to the price, the question was to be settled with reference to the value of the land in adjacent villages. It is even more important for the purposes of what I am going to say further in this judgment, that whatever the nature of the right created, by this clause in the wajib-ul-arz may be, that clause must be interpreted in the terms in which it has been framed, and that in considering those terms two points must not be lost sight of. The first point is that in referring to the right which the clause in the wajib-ul-arz either recognised or created, the term used for the person intended to possess such a right is the word “shafi,” which is a very technicals term of the Muhammadan Law of pre-emption, and signifies the pre-emptor with all such rights and obligations as that law prescribes for him.

The second point to be noticed in that clause of the wajib-ul-arz is that whilst it prescribes a specific rule as to the order in which pre-emption might be claimed and the manner in which the disputes as to the price are to be settled, it is totally silent as to the exact point involved in this case, namely, whether the purchaser or the pre-emptor is entitled to the profits of the vended share for the period intervening between the sale and the acquisition of possession by the pre-emptor under the decree of Court whereby pre-emption was actually enforced. It is unnecessary to refer more minutely to the terms of the pre-emptive clause of the wajib-ul-arz which I have already quoted. It is enough to say that the terms of the clause are such as fall within the purview of a Full Bench ruling of this Court in Karim Baksh Khan v. Phula Bibi(1) where all the learned Judges then constituting this Court, concurred in holding that such clauses in the wajib-ul-arz are covenants which run with the land, and (as I gather from the judgments) are independent of the doctrine of notice as understood in equity in cases such as those contemplated by s. 40 of the Transfer of Property Act (IV of 1882) and the illustration to that section. I have referred to the effect of the Full Bench ruling, only by the way, not only because [240] it enunciates the rule of law unanimously adopted by the whole of this Court, as then constituted, requiring my deference to the view, but also because in the vast majority of cases, such clauses in the wajib-ul-arz would in equity amount to notice, and at any rate the exigencies of this case do not render it necessary to reconsider the question.

I therefore proceed to state the facts of this particular case further.

The pre-emptive suit of Deokinandan, defendant-appellant, which he had instituted on the 6th of March, 1883, resulted in a decree enforcing pre-emption in his favour passed on the 8th of September, 1883, and under that decree the price was deposited in Court on the 15th of November, 1883, and possession was obtained by him formally on the 1st of December, 1883.

What happened next was that in consequence of the success of the pre-emptive suit, the name of the purchasers Sri Ram and Chet Ram, plaintiffs-respondents, under the sale deed of 4th January, 1883, was struck out of the Government revenue records, and the name of Deokinandan the successful pre-emptor was entered (by proceedings known as dakkil kharij or mutation of names) on the 17th of March, 1884.

The defendant, besides being the successful pre-emptor, is also the lambardar of the village, and this fact explains the circumstance that in this litigation he appears not as plaintiff but as defendant. The litigation originated in a suit filed by Sri Ram and Chet Ram in the revenue Court for recovery of their share of the profits for rabi 1290 and kharif 1291 fasli, the period being covered by the interval between the date of the sale to the plaintiffs and the date upon which the defendaut obtained formal possession under his pre-emptive decree.

The suit was resisted upon various grounds, but the only ground with which we are concerned here was the plea that inasmuch as by reason of the defendant's pre-emptive decree he was substituted for the plaintiffs purchasers in the sale of 4th January, 1883, the [241] plaintiff's were not entitled to any profits for the period intervening between the sale and the date on which the defendant was formally put in possession of the pre-empted share in execution of his pre-emptive decree. The Court of first instance accepted this plea in defence, and dismissed the suit without trial of the other issues which arose in the case.

On appeal by the plaintiffs to the lower appellate Court the learned Judge reversing the decree of the first Court remanded the case to that Court, under s. 562 of the Civil Procedure Code, for trial on the merits, holding that the plaintiffs were entitled to claim the profits for the period between the sale to them and the time when the defendant obtained formal possession under his pre-emptive decree.

In holding this view the learned Judge expressly relied upon a ruling of Oldfield, J., and myself in Deodat v. Ramautar, with especial reference to my judgment in that case. In the course of that judgment I said:—

“A pre-emptor, therefore, before his pre-emption is actually enforced, possesses no such right in the subject of pre-emption as would entitle him to any benefits arising out of the property, which he is only entitled to take by substitution, but has not yet actually taken. On the other hand, the original vendee cannot, whilst he is in possession, be regarded as a trespasser, who would have no right to enjoy the usufruct of the property which he has purchased, nor would it be equitable to hold that the pre-emptor, before he has actually paid the price, should be entitled to the profits of the property which he can take only upon duly making such payment.”

After saying this I went on to cite certain rulings, and to those which I then cited I may now add the case of Emam-ood-deen Sowdugur v. Abdool Soobhan(2) as having some bearing upon the question now under consideration, though the report is much too meagre to enable me to decide bow far it may be taken to support the view which I expressed in the passage which I have quoted. [242] In the same judgment, however, after relying on the ruling of this Court in Buldeo Pershad v. Mohun(3) I went on to say:—

“The same rule was laid down by Straight, J., in Ajudhia v. Baldeo Singh which is the latest case upon the subject. I entirely concur in the principle upon which these rulings proceed: and if the exigencies of this case needed it, I would, by reference to the original texts of the Muhammadan Law, have shown that the principle is a necessary consequence of the very nature and incidents of the right of pre-emption itself.”

Those exigencies have, however, arisen in this case, owing to the manner in which the case has been argued with especial reference to Muhammadan law by the learned pleaders for the parties, and I must therefore refer to the original texts of that law. But before doing so, I wish to mention that the learned District Judge is right in pointing out that the rule which I laid down in Deodat v. Ramautar is consistent with that laid down in Ajudhia v. Baldeo Singh, and that my misreading may have been superinduced by the circumstance that in the phrase “when the subsequently awarded sale to the plaintiff took place,” the word ‘awarded,’ is (as my brother Straight assures me) a misprint for the word “avoided.” The question then is, what is the rule of the Muhammadan Law of pre-emption on the point now under consideration? In expressing my opinion on this subject I shall presently have to refer to the original texts of that law, but meanwhile I may cite the ruling of Roberts and Turner, JJ., in Buldeo Pershad v. Mohun to show how those learned Judges propounded that law in a case similar to the one now before us, because that also was a suit by a purchaser for profits against the lambardar of property which had subsequently been pre-empted. They do not seem to have doubted that the principles of the Muhammadan Law of pre-emption would by analogy be applicable to such cases, for they go on to say:—

[243] “On referring to the treatises on Muhammadan Law, we find it clearly laid down that the original purchaser is entitled to hold the land or other subject of pre-emption without rent or hire, while it remains in his hands, and if he has sown land the pre-emptor must wait for the ripening of the crops. In other words he is entitled to the enjoyment of it, and if he may enjoy it, it is clearly immaterial whether the enjoyment be by himself personally or his tenants, and this doctrine seems most in accordance with equity. The purchaser has in most instances paid the purchase money; is he to lose all interest and profits because, at some subsequent time, the contingency occurs that a pre-emptor claims and exercises his right of pre-emption, and is the pre-emptor who has kept his money in his pocket, till it suited his purpose to exercise his right, to obtain profit which will be the greater in proportion to his delay?”

This view is in accord with what I laid down in Deodat v. Ramautar, and I now proceed to show that it is the necessary result of the most authoritative texts of the Muhammadan Law of pre-emption. And in order to do so with clearness, I think it will be convenient to deal with the subject under two separate heads as propositions in themselves.

(1) That the enforcement of pre-emption is deemed to have taken place when, by virtue of his pre-emption, the pre-emptor obtains possession of the pre-emptional tenement, either under a voluntary surrender thereof by the seller or the buyer, or under a decree; and that unless and until such enforcement has taken place the buyer continues to remain the owner of the pre-empted property and it does not till then rest in the pre-emptor.

(2) That the buyer, during his possession as such is entitled to appropriate the profits accruing from the pre-emptional tenement and if pre-emption is enforced against such buyer, the pre-emptor is not entitled to claim such profits for any period antecedent to the enforcement of his pre-emption. In support of the first of these propositions I cite the following original authorities of the Muhammadan [244] Law of pre-emption, taking the Hedaya as the first and highest in that system of jurisprudence. “The shafi does not become proprietor of the house until the purchasers surrender it to him, or until the Magistrate pass a decree, because the purchaser's property was complete, and cannot be transferred to the shafi but by his own consent or by a decree of a Magistrate; (in the same manner as in the case of a retraction of a grant, where the property of the grantee being completely established by the grant, it cannot be transferred to the grantor, but by the surrender of the grantee, or by a decree of a Magistrate) the use of this law appears in a case where the shafi after having preferred his claim before witnesses previous to the decree of the Magistrate or the surrender of the purchaser dies or sells the house from whence he derived his right; or where the house adjoining to that to which the right of shufa relates is sold: for in the first of these instances the house is not a part of his hereditaments, because it was not his property, and the right of shufa fails in the second instance, as the fundamental principle of that right is extinguished previous to his becoming the proprietor; and in the third case, he has no right of shufa with respect to the house which is sold, since the house from which he would have derived that right is not his property”—(Hamilton's Hedaya by Grady, page 550).

This is a good paraphrastic translation of the original Arabic text of the Hedaya which I have cited, and I adopt it because it [245] brings out in clear light the point of law which that text lays down. Next in authority is the text of the Fatawa-i-Kazi-Khan(J):—

“A pre-emptor cannot acquire ownership until a decree for pre-emption be passed, or the pre-emptor obtain possession by mutual consent. If, therefore, another house situated beside the house in respect of which pre-emption is claimed be sold, and the kazi pass a decree for pre-emption in favour of the pre-emptor subsequent thereto, and then the house (pre-empted) be surrendered to him, the pre-emptor is not entitled to take that other adjacent house by right of pre-emption, for he was not a neighbour of that house at the time of its sale.”

Then come two texts from the Fatawa-i-Alamgiri(A), “With regard to pre-emption the rule is that it is lawful to demand pre-emption at the time of the actual occurrence of its cause, that this right is, in a manner, strengthened after such demand, and that a pre-emptor acquires a right of ownership by virtue of a decree of the kazi or of possession by mutual consent.”

This is the first text and the next is(B):—

“A pre-emptor does not become owner on preferring a claim for pre-emption until the kazi passes a decree for pre-emption, or [246] until the house is surrendered to the pre-emptor by the purchaser (by mutual consent).’ Hence if (after the institution of the claim and before the passing of a decree) another house adjacent to it (that is the house preempted) be sold, and the kazi pass a decree of pre-emption after its sale, or the purchaser deliver possession of the pre-empted house to the pre-emptor, the latter is not entitled to the other house by pre-emption. So in the Muhitus Sarkhasi.”

I wish to cite two more texts upon the same point, the first being from the Durrul Mukhtar, and the other from the Raddul Mukhtar, commonly known as Shami's commentary on the former work. The Durrul Mukhtar has the following(C):—

“The pre-empted tenement becomes the property of the pre-emptor by taking possession by mutual consent or by decree of the Judge. The decree of a Judge is an alternative addition to taking possession (by mutual consent), because of the establishment of the pre-emptor's ownership by decree alone even before taking possession. So has been affirmed by Mulla Khusrau.

Shami's commentary on the above passage is as follows(D):—

‘He’ (the author of the Durrul Mukhtar) says by taking possession. He says so because the ownership of the purchaser has been perfected and therefore it cannot be transferred from him except by one of the above-mentioned two causes (that is by possession with mutual consent or the decree of the Judge) as is, the rule relating to revocation of gift. Therefore if the purchaser has died or has sold [247] the property whereby he has acquired the right (that is, the pre-emptive tenement) or an adjacent house has been sold before taking possession or the decree, the right (of pre-emption) is invalidated. And if the purchaser has eaten (that is appropriated) the fruit which came into existence after his possession, he is under no obligation thereof. All this in the Aljauhara. He (the author of the Durrul Mukhtar) says, that there is an alternative conjunction between taking possession and the decree of the kazi. It therefore follows that if he had got it (that is, decree of Court) before ‘the taking of possession’, as in Alghurar, he might have saved himself from ambiguity. He says ‘according to what has been affirmed by Mulla Khusrau.’ This means that he has done so by following others besides himself from among the commentators.”

Now reading these texts carefully (and all of them are authoritative) there can be no doubt that under the Muhammadan Law of pre-emption the ownership of pre-empted property does not in the case of a successful pre-emptor, vest in him till he has actually enforced his right, whether by surrender by the purchaser, or under decree of Court, and that in either case his right of ownership does not take date from the time of the sale to the purchaser, but from such surrender or decree. As if this was not acknowledged rule of the Muhammadan Law of pre-emption, I have been referred in the course of the argument to certain observations which I made in delivering my judgment in the Full Bench case of Gobind Dayal v. Inayatullah and especially to the observations at page 809 of the report, where I enunciated the rule that the right of pre-emption is not a right of re-purchase either from the vendor or from the vendee, involving any new contract of sale; but it 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 the rights and obligations arising from the sale under which he has derived his title. And I went on further to emphasize the rule by saying, “It is, in effect, as if in a sale-deed the vendee's name were [248] rubbed out and the pre-emptor's name inserted in its place.” I have quoted these passages because they have been relied upon in support of the hypothesis that a pre-emptor's title of ownership dates from the date of the sale in respect of which he has enforced his pre-emption. It is enough to say that in the case where these observations were made the point now before us was not the subject of consideration, and that all that had to be considered then was whether the right of pre-emption was a right of re-purchase created by the pre-empted sale itself or an inchoate right which existed before the pre-empted sale so as to render that sale a cause of action for a pre-emptive suit. I held then as I hold still that the right of pre-emption in its inchoate form exists in the pre-emptor antecedently to the sale of which he complains, or if it were not so, jurisprudence would decline to recognize that a right which did not exist at the time of the sale is created by the very sale which is complained of as an injuria to the right which that injury itself created. I did hold in that case as I hold still that the right of pre-emption is nothing more nor less than the right of the pre-emptor to be substituted for the purchaser in the sale in respect of which pre-emption is sought to be enforced. But when I spoke of substitution in that case, and as I speak of it now, I never said nor do I now intend to say that such substitution is independent of the rules of law imposed thereupon as conditions precedent to and governing such substitution itself. Among the conditions of such substitution as the pre-emptor can claim is the condition which the texts which I have cited indicate, namely that a pre-emptor's ownership does not vest in him till he actually enforces his right by one of the two methods which those texts contemplate, that is, either by surrender by mutual consent or by decree of Court. In the present case there is no question of surrender by mutual consent, and the dispute is as to what the defendant acquired under his pre-emptive decree of 8th September, 1883 in execution whereof he obtained formal possession on the 1st of December, 1883.

Now I have already pointed out, that according to the authoritative texts of the Muhammadan Law of pre-emption which I have [249] cited, the defendant as successful pre-emptor could not become owner of the pre-empted property till acquisition of possession by consent of the purchasers, plaintiffs, or under decree of Court. There being no question of surrender by mutual consent, we have to refer to the law as to the decrees of the Court in such cases. That law is contained in s. 214 of the Code of Civil Procedure (Act XIV of 1882) under which the defendant-appellant's pre-emptive decree of 8th September, 1883 was passed, and he obtained possession on 1st December, 1883.

Does that section contemplate that by dint of such decree and such possession there under the defendant as successful pre-emptor was entitled not only to the pre-empted property but also to the profits for the period intervening between the sale and the acquisition of possession by the defendant under that decree? There is no contention that the decree contained any such terms as would either be inconsistent with or go in excess of the provisions of this section. I take it therefore that the appellant's pre-emptive decree of 8th September, 1883, was framed in conformity with the requirements of s. 214 of the Civil Procedure Code, and that he obtained possession as successful pre-emptor on the 1st December, 1883, in execution of that decree. I hold therefore that up to that date, namely the 1st December 1883, when, the terms of the decree were fulfilled and enforced, the plaintiffs-respondents Sri Ram and Chet Ram as purchasers under the sale-deed of 4th January, 1883, remained owners of the preempted share, and that such ownership did not vest in the defendant from the date of the sale, notwithstanding his success in the pre-emptive suit, and that his actual substitution as owner of the pre-empted property must date with his possession on the 1st December, 1883.

This leads me to the consideration of the second question as enunciated by me at the outset, and the answer to it is only a corollary to what I have already said. For if the ownership of the pre-empted share did not vest in the defendant-appellant till he obtained possession by fulfilling his pre-emptive decree on the 1st December, 1883, it follows that he had no right to appropriate the [250] profits of the pre-empted share of which till then Sri Ram and Chet Earn, purchasers, plaintiffs-respondents, were owners.

I might have left the matter here, but because much argument has been addressed with reference to the rule of the Muhammadan Law of pre-emption as to the right to the profits of the pre-empted property during the interval between the sale and the enforcement of pre-emption by the pre-emptor either under surrender by the purchaser or decree of Court, I wish to state how that law deals with such a question. In doing so it is necessary to refer to some more of the original texts of that law, but before citing them to any purpose it is necessary to explain that the question now under consideration is dealt with by the authorities of the Muhammadan Law of pre-emption as a matter relating to the deduction from the price which the pre-emptor has to pay to the purchaser before enforcement of his pre-emptive right.

Treating the question in this manner, the author of Hedaya (vide page 558, Hamilton's Hedaya by Grady) contemplates two cases, namely the case in which land has been sold with the crop of fruit existing thereon at the time of the pre-empted sale, and the case where such fruit is produced after the sale whilst the land is in possession of the purchaser. He then goes on to say(E):—

“In either of the two preceding cases, if the purchaser have gathered the fruit, and the shafi afterwards come and claim his privilege, he is not entitled to the fruit so gathered; for it is no longer an appendage of the ground. It is said in the Mahsoot, that if the purchaser have gathered any of the fruit, a proportionate abatement should be made in the price to the shafi. The compiler [251] of the Hedaya remarks, that this is in the former only of the two above mentioned cases; for the fruit being produced at the time and being actually and expressly included in the sale, it is natural to suppose that a part of the price was given in consideration of it; whereas, in the latter case, the fruit was not produced, and could only be included in the sale as a consequent, whence no part of the price could have been set against it.”

I have again adopted Mr. Hamilton's paraphrastic translation of the original Arabic text, because it brings forth the rule of law therein laid down, and that rule is made clearer by the author of the Kifaya, a well-known commentary of the Hedaya.

Referring to the above cited text of the Hedaya, the commentator goes on to say(F):—

“He (the author of the Hedaya) says ‘and the trees have then brought forth fruit whilst in possession of the purchaser.’ He has placed this restriction according to his saying ‘in the possession of the purchaser’ because in a case of the fruit coming forth whilst in possession of the seller before possession and then the purchaser has taken possession, the purchaser has a right to a share out of the price, as would be the case if the fruit existed at the time of the sale. He says ‘in both cases;’ this means either in the case when the trees were bearing fruit at the time when the sale took place and then the purchaser removed them, or the case when there did not exist any fruit on the trees, and the sale took place only in respect of the land and the trees, and the latter brought forth fruit whilst in possession of the purchaser, who then separated them. In either of these cases the pre-emptor is not entitled to take the fruit.”

[252] It is clear from these texts that when land with a crop of fruit existing thereon at the time of the sale is purchased, an abatement of the price proportionate to the value of such crop will be made in favour of the pre-emptor because he is supposed to have purchased the property knowing that the fruit existed thereon, and that a portion of the price which he paid was in lieu of the crop of fruit then existing. But it is equally clear from the texts that when the crop of fruit comes into existence after the sale whilst the land is in possession of the purchaser, no abatement of the price will be made in favour of the pre-emptor, and he has to pay the full price. The ratio of course is that during his possession as such, the purchaser under a subsequently pre-empted sale is owner of the property which he has purchased till pre-emption is actually enforced against him, and that during his possession as such owner he is entitled, as a natural incident of his right of ownership, to the produce of his own property.

That this is the rule of the Muhammadan Law of pre-emption appears further from the following texts of the Fatawa-i-Alamgiri which may be taken as the most authoritative work of Muhammadan Law for administering that system in India.

“If the buyer has already gathered the fruit which grew during his possession, and then the pre-emptor has arrived, then whether the fruit is still standing, or has been appropriated by the purchaser, by sale or by eating it, the pre-emptor must take the land and the trees in lieu of the whole price if he chooses, and he has no right to the fruit. So in the Sirajul Wahhaj(G).”

The next text is even stronger for showing that the produce of land during possession of the purchaser belongs to him and not to the pre-emptor.

[253] “If the land purchased contained a crop too small to fix its value, and if that crop subsequently ripened and was cut away by the buyer, and then the pre-emptor arrived and took the land by pre-emption, no abatement will be made in the price in his favour on account of the said crop. So in the Mulutus Sarkhasi(H).”

It is needless to multiply authorities on this point, for the authorities which I have already cited render the contention wholly untenable that under the Muhammadan Law of pre-emption the ownership of the preempted property vests in the successful pre-emptor from the date of the pre-empted sale without and before the pre-emptor having actually enforced his pre-emption by mutual consent, or by fulfilling the requirements of a decree of Court. Equally untenable under that law would be the proposition that during the interval between the pre-empted sale and the actual enforcement of pre-emption as above-mentioned, the pre-emptor is entitled to the profits of the pre-empted property of which he was not till such enforcement the actual owner.

That such is the rule of the Muhammadan Law of pre-emption in such cases, I have absolutely no doubt; and if I have referred to the original authorities at such length it is only out of deference to the contention which was seriously urged in the course of the hearing that such was not the rule of the Muhammadan Law of pre-emption.

To the argument so addressed much interest has been added by the contention that the parties to the present suit being Hindus, the Hindu Law would be applicable to them, that there exists in this country a Hindu Law of pre-emption which we are bound to apply to this case under the Civil Courts Act (XII of 1887, s. 37) and according to the rule of justice, equity, and good conscience. It was further argued on behalf of the appellant that the rules [254] of the Muhammadan Law of pre-emption are not even by analogy applicable to cases such as this, that, the wajib-ul-arz represents only a covenant or agreement between co-sharers of a village, and as such a suit for pre-emption under the pre-emptive clause of the wajib-ul-arz must be dealt with practically as a suit for specific performance of a contract such as s. 40 of the Transfer of Property Act (IV of 1882) contemplates, the sale in this case being later than the time when that enactment came into force. In dealing with this part of the case as argued before us by the learned Pandit on behalf of the appellant, I will for the purposes of clearness deal with the argument under distinct heads. I will show:—

(1) That there is no law of pre-emption in the Hindu Law.

(2) That entries in the pre-emptive clause of the wajib-ul-arz are good prima facia evidence of the existence of pre-emption in the village to which such wajib-ul-arz relates.

(3) That such custom must in the absence of anything to the contrary be taken to be founded on, and co-extensive with, the Muhammadan law of pre-emption.

(4) That in cases where it is shown that the custom or compact recorded in the wajib-ul-arz is in any respect not co-extensive with the Muhammadan Law of pre-emption or is at variance from such law, the Court may administer a modification of that law according to the circumstances of each case.

(5) That where such custom or compact is silent upon any particular point the Court will follow the analogies of the rules of the Muhammadan Law of pre-emption on that point, so long as those rules are consistent with the principles of justice, equity and good conscience.

Now upon the first of these points the learned Pandit in order to show that the Hindu Law contains definite rules of pre-emption relied upon a text of the Mahanirvana Tantra (Chapter XII, verses 107-112) quoted by Babu Sbyama Charan Sarkar Vidya Bhushan, at page 627 of the second volume of his Digest of the Hindu Law named Vyvastha Chandrika, where the original Sanskrit [255] text of the Tantra is also quoted. The text no doubt provides a right of pre-emption, but it has long been the subject of interest to eminent Sanskrit scholars, whose final decision is that it is of a recent date, that the Mahanirvana Tantra itself is not a work of authority in the Hindu Law, and that inasmuch as it provides a rule which does not exist in the authoritative works of the Hindu Law, such as the Smritis, or even works of less authority, the text is valueless for purposes of laying down any authoritative rule of the Hindu Law such as the Courts would respect and administer. It has indeed been even suspected that the text, occurring as it does malapropos in the Mahanirvana Tantra itself, is an interpolation made some time in the reign of the Muhammadan Emperor Akbar, when strenuous efforts were made to bring the Hindu and the Muhammadan populations under practically the same law for temporal purposes. I have had before now to consider the exact authoritativeness of the Mahanirvana Tantra as an authoritative work of law. This was in the Full Bench case of Gobind Dayal v. Inayatullah and what I said upon the subject is to be found at pp. 785-790 of the report. I have no desire to repeat what I said then, because nothing new has been offered in the argument in this case beyond reference to the case of Omed Roy v. Nackahed Rai which is the solitary case which the learned Pandit has pointed out as supporting his contention that a Hindu Law of pre-emption exists and was in that case administered by the Court. The case was decided so long ago as 1830, and the report (at page 71) contains a valuable note in which reference is made to two earlier rulings, and the note ends by saying that Mr. Colebrooke “states the right claimed to be unsupported by Hindu law, but suggests as probable that the claim may be found supported by local custom.” The report of the case shows that it was decided upon the ground of local custom and general considerations of equity rather than upon any precepts of the Hindu Law, and so far as the case may be understood as an authority supporting the existence of a Hindu Law of pre-emption, I think it is enough to say that it has never been followed in that aspect either by the Sadar Diwani Adalats [256] or by the High Courts. Babu Shyama Charan Sarkar at page 626 of his Digest of Hindu Law, Vyvastha Chandrika, Vol. II, does indeed devote a section to the subject of pre-emption, relying upon the text of the Mahanirvana Tantra, but he does not point out a single passage in the authoritative works of the Hindu Law, the Tantra being a work not upon law but on Mythology. Besides the absence of any reference to pre-emption in the legal authorities of Hindu Law, I am much pressed by the circumstance that if the rule of pre-emption existed in that system many more principles of decision would be provided therein to meet the numerous points which arise in enforcing that right. I wish also to point out that the learned author after quoting from the Mahanirvana Tantra ends up his section on pre-emption by saying that “upon the authority of the above, and also according to local usage which appears to have been founded on ideas taken from the Muhammadan, rather than from the Hindu Law, the right of pre-emption has become prevalent among the Hindus of the North-Western Provinces (vide p. 628). In the Full Bench case of Fakir Rawot v. Sheikh Emambaksh Sir Barnes Peacock in delivering the judgment of the whole Court went on to say. “It may be noted as a significant fact that every term employed in connection with this right, including the name of the right itself, shuffa, is borrowed from the Arabic; and that the special appellant's pleader himself a Hindu, could not, when questioned by the Court, refer to any term of Hindu origin connected with the subject.” In the present case, however, the learned Pandit for the appellant relying upon a foot-note of Babu Shyama Charan's Digest, Vol. II, page 549 (precedents) suggested that the Sanskrit word prativesikatwa was the equivalent of the Arabic word shufa, just as Dr. Sir Monier Williams in his English-Sanskrit Dictionary has given prakhyata as the equivalent of shufa or pre-emption. I have no doubt that the Sanskrit language with its large vocabulary and enormous power of making compounds can furnish an equivalent to any idea; but the question is whether either of these terms is a term of the Hindu Law, and whether it is to be met with in any of the legal authoritative works [257] of that system. No such suggestion has been made, and must therefore hold that the mere circumstance of a Sanskrit word being formed to represent pre-emption is no more evidence of the existence of that right as a legal right in the Hindu Law than the Greek word phonograph or microphone and other similar terms are evidence of the existence of those instruments in ancient Greece. For the reasons which I have stated, I hold now as I did in the Full Bench case of Gobind Dayal v. Inayatullah that there is no law of pre-emption recognised by Hindu jurisprudence, and that therefore there is nothing in s. 37 of the Civil Courts Act (XII of 1887), to require us to administer a Hindu Law of pre-emption which never existed and does not now exist, and that the decision of this case must therefore rest upon the rule of justice, equity and good conscience as required by the second paragraph of that section.

I now pass on to the second point, and in doing so, I will first refer to the Full Bench ruling of this Court in Isri Singh v. Ganga where it was laid down that a wajib-ul-arz prepared and attested according to law is prima facie evidence of the existence of any custom of pre-emption which it records, such evidence being open to be rebutted by any one disputing such custom, and that when such wajib-ul-arz records a right of pre-emption by contract between the shareholders, it is evidence of a contract binding on all the parties to it and their representatives, and there will be a presumption that all the shareholders assented to the making of the record, and in consequence were consenting parties to the contract of which it is evidence, and it will be for those shareholders who repudiate such contract to rebut such presumption. This case was followed by my brother Tyrrell and Oldfield, JJ. in Muhammad Hasan v. Munna Lal and I do not think that its authority has ever been doubted in this Court. And I may add that the manner in which the wajib-ul-arz was dealt with in these two cases, so far as they lay down the rule as to custom, is amply supported by the observations made by the Lords of the Privy Council in Rani Lekraj Kuar v. Baboo Mahapal Singh(4) notwithstanding the qualifying remarks which their [258] Lordships made in the later case of Uman Parshad v. Gandarap Singh(5).

Applying the principles laid down by these rulings to the present case, I hold that the entries in the pre-emptive clause of the wajib-ul-arz, undisputed as they are, must be taken to represent the existence of a custom of pre-emption in the village, or at least are good evidence which has not been rebutted of a compact or agreement between the co-sharers as to the manner in which such right of pre-emption was to take effect. I have already quoted the pre-emptive clause of the wajib-ul-arz in extenso, and before going any further I wish to point out that the clause comes under the heading of pre-emption, and that whether it be regarded as enunciating the custom of pre-emption or a compact between the co-sharers, the words employed for pre-emptor and pre-emption are shafi and shufa, which are technical terms of a very definite meaning in the Muhammadan Law of pre-emption. I shall presently have to show that these technical legal terms cannot be disregarded in interpreting the clause of the wajib-ul-arz, but meanwhile I pass on to the third point, namely that the right of pre-emption under the clause of the wajib-ul-arz must be taken to be founded on the rule of the Muhammadan Law of pre-emption which, sometimes in its entire integrity and sometimes in a qualified form, has been adopted by Hindu communities in these Provinces. I referred to this matter in delivering my judgment in the Pall Bench case of Gobind Dayal v. Inayatullah in the observations which I made at page 790 of the published report. I still adhere to those views and do not wish to add anything to them beyond recalling attention to what I said in Zamir Husain v. Daulat Ram at page 113 of the published report, and also to similar observations which I made in Sheoratan Kuar v. Mahipal Kuar, at page 267 of the published report relative to the manner in which pre-emptive clauses in the wajib-ul-arz must be interpreted as representing a custom or compact as founded upon notions of the Muhammadan Law of pre-emption, [259] which notions are foreign to Hindu jurisprudence. It is not however upon my own judgments in previous cases that I wish to rely for the rule which I shall again lay down in this case. By far the most important and the most authoritative ruling upon this point is a Full Bench ruling of the Calcutta High Court passed by a Bench consisting of Peacock, C.J, L.S Jackson, Shumbbunath Pandit, Levinge and Jackson, JJ., in Fakir Rawot v. Shaikh Emambaksh where those learned Judges unanimously concurred in the judgment delivered by Sir Barnes Peacock, Chief Justice, who, after reviewing an enormous number of previously decided cases to be found in the reports, summed up the results of his judgment in terms which are so definite and clear that I think they cannot be too often repeated in order to save future litigation and discussion upon the point. The learned Chief Justice said:— “We therefore think the established law upon this subject is clear enough, that a right or custom of pre-emption is recognised as prevailing among Hindus in Behar and some other provinces in Western India, that in districts where its existence has not been judicially noticed, the custom will be matter to be proved, that such custom, when it exists, must be presumed to be founded on and co-extensive with the Muhammadan Law upon that subject, unless the contrary be shown; but the Court may, as between Hindus, administer a modification of that law as to the circumstances under which the right may be claimed, when it is shown that the custom in that respect does not go the whole length of the Muhammadan Law of pre-emption, but that the assertion of the right by the suit must always be preceded by an observance of the preliminary forms prescribed in the Muhammadan Law, which forms appear to have been invariably observed and insisted on through the whole of the cases from the earliest times of which we have record. In this requirement we see no evil, inasmuch as a right of pre-emption undoubtedly tends to restrict the free sale and purchase of property, and it is desirable therefore, to encompass it with certain rules and limits lest the right should be exercised vexatiously.”

[260] The principles upon which the rule so enunciated rest have never been doubted by the Calcutta High Court so far as I am aware, and I now proceed to show that they have not only not been repudiated by this Court, but that this Court has uniformly acted upon them. I have already pointed out that in Buldeo Pershad v. Mohun which was a case very similar to this, Roberts and Turner, JJ., applied the principles of the Muhammadan Law of pre-emption regarding profits between the sale and the acquisition of possession by the successful pre-emptor, though that case was between Hindus. But in the course of the argument it has been suggested that the Full Bench ruling of this Court in Chowdhree Brij Lal v. Raja Goor Sahai lays down a rule of law which is inconsistent with the Full Bench ruling of the Calcutta High Court in Fakir Rawot v. Sheikh Emambaksh which I have already cited. That the judgment of the Full Bench of this Court does not say so is clear from the report, and it is equally clear that the Full Bench ruling of the Calcutta Court was before the learned Judges of this Court when they delivered their judgment in the case which I have just cited.

The question then is to ascertain what was the exact rule of law laid down by the Full Bench of this Court in the case of Chowdhree Brij Lal v. Raja Goor Sahai, how far, if at all, it modifies the rule of law laid down by the Full Bench of the Calcutta High Court in the case of Fakir Rawot v. Sheikh Emambaksh which I have already cited. This leads me to what I have enunciated as the fourth point of the argument on this part of the case, and since the bead-note of the report in the Full Bench case of this Court is defective and inadequate, it is necessary for me at the risk of prolixity to quote some passages from the Full Bench judgment of this Court, the more so because I am afraid that the reports containing that case are out of print and not easily accessible.

Now the exact question which the learned Judges in that case had before them was “whether compliance with all or any of the [261] conditions prescribed by the Muhammadan Law, is indispensable to give validity to a claim of pre-emption, preferred under the stipulations of the record of right known as the wajib-ul-arz prepared on the occasion of making or revising settlement.”

Having thus formulated the question before them, the learned Judges of the Full Bench formulated their answer in certain propositions which I quote here in extenso. Referring to the question as enunciated by them, they go on to say:—

“We are asked to determine whether in deciding cases which involve the interpretation of pre-emptive stipulations the Courts of these Provinces ought to confine themselves to the terms of the instrument in which the stipulation is embodied or are to import all or any of the peculiar provisions of the Muhammadan Law.” The learned Judges then after describing the various grounds upon which pre-emption might be claimed, observe:—“As regards general usage, it was declared by the late Sadr Court of these Provinces that pre-emptive rights do not obtain as an universal custom among Hindus. To this statement we assent, with this addition that in some parts of India the custom has been found to prevail, accompanied with all the conditions attaching to pre-emptive rights under the Muhammadan Law.”

They then refer to certain executive directions promulgated by the local Government to revenue officers in connection with the preparation of the wajib-ul-arz, and proceed to observe:—

“We have seen that Settlement Officers were instructed to induce the coparceners, whose property they engaged in settling, to come to an agreement on all subjects on which disputes were likely to arise; and probably on no point were disputes more likely to arise than on questions relating to the transfer of tenure. As in the case of the undivided family, no member could alienate his share of the common inheritance without the consent of the other members, so in the village community, which often had its origin in an undivided family, nothing could be more opposed to the feelings of the community than the transfer of any interest in the estate to [262] one who was not a member of the village community. Hence at settlement it was not unfrequently admitted as an established usage, or agreed, that no alienation should be made by any coparcener to a stranger without the consent of the whole body of coparceners. But a stipulation of this nature practically operated to prevent a coparcener from obtaining the full value of his share, because it limits the market, that is the number of persons to whom he could without such permission sell. Consequently a modified provision was more generally adopted, whereby the co-parcener was not restricted from selling for the best price he could obtain in the open market; but it was made incumbent upon him to give the opportunity of purchasing at that price to the other co-parceners, commencing with those who, being co-parceners, were first nearest to him in family, and next co-sharers in the same thoki or patti. Such a stipulation, (a form of which is likewise given at page 195 of the settlement misl) it can easily be seen, was entirely in accordance with the spirit of Hindu law and custom; it obtained still greater importance when the default of a single shareholder in contributing his portion of the revenue rendered the whole of the village or patti liable to sale. It seems reasonable to conclude that it was with a view to compass these ends, that is to say, to prevent the intrusion of a stranger into the estate of the family or community, and to exclude any person, whose want of thought or skill might augment the burdens of the other members of the co-parcenary community, rather than from any desire to borrow an institution from their Muhammadan neighbours, that the communities caused stipulations for pre-emption to be inserted in the wajib-ul-arz.”

The learned Judges then proceed to point out that the pre-emption provided in the wajib-ul-arz, is often in some of its incidents different to the incidents of the right of pre-emption under the Muhammadan Law, and in view of this circumstance, and probably especially with reference as to the surmise that, “pre-emption under the Muhammadan Law is confined to property in towns, such as houses and gardens or small walled enclosures and to such property only, while the wajib-ul-arz deals principally with the holdings” [263] of the agricultural community, they sum up their conclusions in the following words:—

“In view of the foregoing considerations, we hold that the pre-emptive conditions which are found in the wajib-ul-arz paper, are to be regarded generally as resting on a distinct basis from that of the huq shuffa under the Muhammadan Law, and that two of the earliest decisions of the late Sadr Court, in which this dictum was pronounced are worthy of acceptance (No. 105 of 1846, 2nd December, N.W.P 166; No. 727 of 1850, Reports for 1851, p. 214). In support of this ruling, we may also refer to the 194th paragraph of Directions for Collectors of Land Revenue, where the origin of the right, as created generally by stipulation at the time of settlement and as independent of the Muhammadan shuffa, is affirmed.”

The learned Judges having thus in somewhat emphatic terms expressed the view that the pre-emption provided in the wajib-ul-arz must be regarded as founded on or originating from the rules of Hindu Lav, relating to joint undivided families, go on in specific terms to guard themselves from being misunderstood. They observe in continuation of what I have just quoted:—

“We do not mean to lay it down that a pre-emptive condition in a wajib-nl-arz may not be so expressed as to indicate that the Muhammadan custom of pre-emption prevails, and, in such case, it will be undoubtedly the duty of the Court, if called on to decide on the validity of a claim preferred under such a condition, to decide upon its validity, with reference to the special provisions of the Muhammadan Law, but if no clear expression is found that the parties intended that the Muhammadan right of pre-emption should be recorded as prevailing, and if on the contrary the words indicate a course differing from the requirements of the Muhammadan Law to be pursued by the vendor, and the would be purchaser, then the stipulations of the wajib-ul-arz and those stipulations alone are to be regarded, and the Court must pass its decree with reference to the proof afforded that those stipulations have or have not been performed. In our view, if the wajib-ul-arz is to be regarded as a contract, the same laws of interpretation are to be applied [264] as to other contracts; if, on the other hand, it is to be regarded as a record of usage or custom, the custom (if the terms of the instrument be clear) may be assumed to be recorded with all the incidents which are admitted to attach to it, and no new incidents not mentioned in the record ought to be imported into it, unless it be the manifest intention of the parties that they should be so imported.”

From so much of the views expressed by the majority of the Full Bench in the above quoted passages, as attributed the historical origin of the right of pre-emption as recorded in the wajib-ul-arz to notions of the Hindu Law governing alienations of their shares by members of joint undivided families, Mr. Justice Roberts, who was one of the members of the Full Bench, expressed his emphatic dissent. Referring to the long course of decision whereby “the rules of law in this respect had become certain and notorious,” be went on to say, “upon the principle of rule of practice stare decisis, to abide by former precedents, I would adhere to the principle laid down in the decisions above mentioned. But I also think the decisions were right and in accord with the policy of the last settlement in which the right of pre-emption was generally introduced. Although the alienation of landed property by a separate co-partner does not appear to have been subject to any restriction of pre-emption according to the sages of the Hindu law, inasmuch as it is laid down that separated brethren if they give or sell their shares may do that as they please, for they have power over their own wealth (Nanarda 43, Buhler and West, page 357) yet the general and unquestionable acceptance of the right of pre-emption by Hindus at the late settlement shows that the practice was consonant to their ideas and was familiar to them. That the practice and the policy was so known to the Hindus is attributable to their having observed the usage among their Muhammadan neighbours and applied it in many instances among themselves. It is reasonable to conclude, says Mr. Elberlirjg, that, when the Company obtained possession of the country, the Muhammadan Law, modified by local customs was the real law of the land (vide Elberling, 3 [265] and 4, and the authorities cited). However this may be with regard to cases of inheritance and of marriage and caste and religious usages and institutions in which the Courts have, as between Hindus, administered their law, yet the right of pre-emption as congenial to Hindus has been derived from the Muhammadan, so much so as to have been recognized as the customary law of some parts of the country.”

I confess that upon the question of the origin of the pre-emptive right in India I agree in the dissentient judgment of Mr. Justice Roberts, because with profound respect for the majority of the Full Bench in that case, I cannot help feeling that the conclusions at which they arrived on this point are based more upon theoretical surmises and hypotheses than upon the actual ascertainment of the facts of history in connection with the administration of justice in this part of the country. Nor do I intend to prolong my judgment by entering into a historical disquisition on the subject here. All I need point out is, what Mr. Justice Roberts pointed out, that for centuries before the British rule the law of the land was the Mahomedan Law, that law had never to contend with any conflicting rules of the Hindu law of pre-emption, because (as I have already shown) no such law existed, that the Muhammadan rule of shufa draws absolutely no distinction between Muhammadans and non-Muhammadans, as was pointed out in Zamir Husain v. Daulat Ram; that when the British rule succeeded to the sovereignty of this country it found the Muhammadan law as modified by local customs actually administered as the law of the land; that so far as the right of shufa or pre-emption is concerned the British tribunals, such as the Sadr Courts, continued to administer that law, as is shown by the large number of cases to which Sir Barnes Peacock referred in delivering the judgment of the Full Bench in Fakir Rawot v. Sheikh Emambaksh, arriving at conclusions which were accepted in their integrity by Mr. Justice Roberts as relating also to the state of the right of pre-emption in these Provinces. Those conclusions are not only supported[266] by the undoubted facts of the history of law in British India, but also by existing facts of the administration of justice in various parts of the country.

Among those facts is a proposition which cannot be controverted, and which apparently was not pressed upon the attention of the learned Judges forming the majority of the Full Bench from whom Mr. Justice Roberts dissented, that as matter of fact and not one of theoretical surmises or hypotheses, the right of shufa or pre-emption is unknown in those parts of India where Muhammadan jurisprudence had not in days gone by had full sway, and where Muhammadan influence was not felt as vigorously as in this part of the country and other parts of Upper India, in Bengal and in some parts of the Bombay Presidency such as Guzarat. For instance it is unknown in the Madras Presidency, where the High Court in Ibrahim Saib v. Muni Mirudin Saib have gone the length of holding that even in the case of Mahomedans the doctrine of pre-emption is not law in that Presidency. Similarly in such parts of the Bombay Presidency as have not been subject to Muhammadan influence, the right of pre-emption does not prevail, and where it is found to prevail it has been distinctly held to prevail among the Hindus on no basis other than their acceptance of the Muhammadan rule of pre-emption. For this the case of Gordhandas Girdharbhai v. Prankor is a distinct authority. That was a case entirely between Hindus, and the learned Judges after stating that there had been many cases disposed of by the Sadar Diwani Adalat of that Presidency, went on to say.—“There is no doubt that the custom in Guzarat is the Muhammadan right of pre-emption, or hak shufa; and therefore that in deciding such a suit as the present, it is to the particulars of that law we must look for guidance.”

If it were a correct proposition to maintain that the law of pre-emption as contained in the wajib-ul-arz is an offshoot of the Hindu law relating to joint undivided Hindu families. I should have expected that in other parts of the country also, such as Madras and Bombay, where that law has had uninterrupted and full opera [267] tion, a similar doctrine of pre-emption might have been evolved by village communities and joint Hindu families. But there is no contention that any such evolutionary phenomenon has taken place, and its absence is all the more remarkable because so far as the joint Hindu family system is concerned, those parts of the country are governed by the Mitakshara school of Hindu law in common with this part of the country. Equally remarkable is the circumstance that in none of the numerous cases to be found in the printed reports has any attempt been made to engraft on to the right of pre-emption the analogies of the Hindu law relating to legal necessity for alienations and other similar doctrines as understood in that law. It is also a fact which must not pass unobserved that so far as the pre-emptive clauses in this part of the country are concerned, village communities which have entered those clauses are as often mixed communities of Hindus and Muhammadans as they are unmixed Hindu or Muhammadan communities, and yet in the vast majority of cases of pre-emption which come before this Court the terms of the pre-emptive clause are similar, and this fact, upon the hypothesis of the majority of the Full Bench, leads to the conclusion either that a Hindu law of pre-emption which never existed or an, evolutionized form of the Hindu law as to joint undivided families, was adopted by the Muhammadans in such cases, an evolution which has not yet been recognized even by Hindus themselves in respect of sales of joint immoveable property such as houses and other buildings.

I do not wish to pursue the subject any further beyond respectfully repeating that I find it impossible to accept the conclusions of the majority of the Court in the Full Bench case of Chowdhree Brij Lall v. Rajah Goor Sahai so far as those conclusions attribute the origin of pre-emption in village communities to an evolution of the Hindu law relating to the joint Hindu family system. I have however no doubt that system may have and probably did, restricting as it does the free right of sale, operate as a pre-disposing cause facilitating and rendering congenial the adoption by [268] Hindus of notions of a pre-emptive right derived from and founded upon the doctrines of Muhammadan jurisprudence on that subject. Beyond what I have said as to the historical origin of pre-emption I do not dissent from the conclusions arrived at by the learned Judges of the majority in the Full Bench case which I am considering. I agree with them in holding that a right of pre-emption when adopted by village communities as a custom or compact and entered in the wajib-ul-arz may in some of its incidents be different from the rules of the Muhammadan law of pre-emption, that in such cases the Court should carefully interpret the terms of the pre-emptive clause of the wajib-ul-arz and give effect to them, even though they vary or modify the ordinary rule of the Muhammadan law of pre-emption in any respect, such as the indispensability of the immediate and confirmatory demands. This is the whole scope of the Full Bench ruling minus the theory as to the origin of pre-emption, and viewed in this light there is nothing in that ruling inconsistent with the principles laid down by Sir Barnes Peacock in the Full Bench case of Faiker Rawot v. Sheikh Emambaksh to which I have so often referred, for that ruling clearly recognizes that where custom has varied the incidents of the Muhammadan law of pre-emption, the modification is to be respected by the Court, and this indeed was the ratio decidendi of the rule adopted by my brother Brodhurst and myself in Zamir Husain v. Daula Ram. That case gave full effect to the Full Bench ruling of this Court, for there we dispensed with the preliminary demands of pre-emption in deference to the variations which were proved to have been made by the local custom. This leads me to the fifth point in this part of the case, namely, how is the Court to act in cases where the local custom or compact as entered in the wajib-ul-arz is totally silent as to any matter which by reason of the right of pre-emption being claimed becomes a necessary subject for adjudication, as indeed in this case. Upon this point the Full Bench ruling of the majority of this Court in Chowdhree Brij Lal v. Rajah Goor Sahai beyond laying down the broad rule that pre-emptive clauses of the wajib-ul-arz are [269] to be enforced without “alteration or addition” throws no clear light, whilst I have said enough to show that, the Full Bench ruling of the Calcutta High Court in Fakir Rawot v. Sheikh Emambaksh and the Division Bench ruling of the Bombay High Court in Gordhandas Girdharbhai v. Prankor clearly lay down that the analogies of the Muhammadan law of pre-emption must be looked to for guidance.

But the exigencies of deciding questions not provided for by the pre-emptive clause of the wajib-ul-arz as indeed, also of local custom where that custom is silent, do often arise in an infinite variety of cases, and the best way to illustrate them is to refer to some of the reported cases which had to be decided by this Court, and I will before discussing them take them in their chronological order. Perhaps the first case which I should cite on this point is Buldeo Pershad v. Mohan where Roberts and Turner, JJ., did not even doubt or hesitate to apply the rule of the Muhammadan law to a claim for profits during the interval between the pre-empted sale and the actual enforcement of pre-emption by possession of the pre-emptor. That case like the present arose out of pre-emption claimed under the wajib-ul-arz. So was the case of Rajjo v. Lalman(6) where a co-sharer in a village, who had under the wajib-ul-arz a right to the pre-mortgage of a share in such village and who in anticipation of enforcing his right mortgaged such share to a “stranger” (that is, a person who had not a preferential right to the mortgage) was held by my brother Brodhurst and myself to have forfeited his right. The wajib-ul-arz upon that point was silent, and my learned brother and I applied the doctrine of the Muhammadan Law of pre-emption, holding that such doctrine was in accordance with justice, equity and good conscience. Such also was the case of Bhawani Prasad v. Damru where a co-sharer in a village, who had under the wajib-ul-arz a right of pre-emption in respect of the sale of a share, and who had joined a “stranger” (that is a person who had not such right) with himself in suing [270] to enforce such right, was held by my brother Tyrrell and myself to have forfeited his right of pre-emption, and we held this with especial reference to the analogies of the Muhammadan law of pre-emption, holding that such law on the subject was consistent with justice, equity, and good conscience, and should be enforced in the absence of any provision to the contrary in the pre-emptive clause of the wajib-ul-arz whereupon the suit was based.

Then comes the case of Kashi Nath v. Mukhta Prasad in which Mr. Justice Duthoit and I concurred in adopting the analogies of the Mahomedan law of pre-emption even to the extent of regulating the form and scope of a pre-emptive suit under the wajib-ul-arz, and my learned colleague in that case concurred with me in holding that the provisions of s. 214 of the Code of Civil Procedure, must not (in the absence of specific provision therein as to suits by rival pre-emptors, and in view of the vast power which Courts of equity possess in framing their decrees) be read regardless of the analogies furnished by the Muhammadan Law of pre-emption. Again upon the same principle my brother Brodhurst and I in Durga Prasad v. Munsi by again introducing the analogies of the Muhammadan law of pre-emption in a case founded on the pre-emptive clause of the wajib-ul-arz, concurred in holding that every suit for preemption must include the whole of the property, subject to the plaintiff's pre-emption conveyed by one bargain of sale to one stranger; and a suit by a, plaintiff pre-emptor, which does not include within its scope the whole of such pre-emptional property, is unmaintainable as being inconsistent with the nature and essence of the pre-emptive right. And my learned brother and I carried the rule further in a similar case of wajib-ul-arz pre-emption, in Hulasi v. Sheo Prasad where we held that the prior institution of a suit by rival pre-emptors in no way entitles a pre-emptor to depart from the general rule of pre-emption, by suing for a portion only of the property sold. Again the analogies of the rules of the Muhammadan law of pre-emption were applied to a case of wajib-ul-arz pre-emption by my brethren [271] Straight and Brodhurst in Harjas v. Kanhya where, approving the doctrine laid down in Bhawani Parshad v. Damru which I have already referred to, my learned brethren concurred in holding that if a co-sharer associates a stranger with him in the purchase of a share, another co-sharer is entitled to pre-empt the whole of the property sold, but it is not obligatory upon him to impeach the sale, so far as the co-sharer vendee is concerned.

These cases are sufficient to show that in connection with various difficulties arising out of the enforcement of the right of pre-emption even when claimed upon the pre-emptive clause of the wajib-ul-arz and in the absence of any specific provision in such clause upon any particular point, my brethren Straight, Brodhurst, Tyrrell and myself have followed the analogies of the Muhammadan law of pre-emption, and have laid down rules of law which by dint of those analogies have appeared to us consistent with justice, equity and good conscience. I do not wish to multiply instances of reported or unreported cases beyond those which show that the principle of adopting the analogies of the Muhammadan law of pre-emption has also received the approval of the present Chief Justice of this Court.

In respect of this matter, the first case I refer to is Ram Prasad v. Abdul Karim where I had the honour of being associated with the learned Chief Justice on the Bench. That was a case in which the wajib-ul-arz of the village in its pre-emptive clause consisted of the following laconic terms. “The custom of pre-emption prevails according to the usage of the country.”

The pre-emptive suit in that case was based upon this clause of the wajib-ul-arz., and it was a suit between a Hindu pre-emptor and a Muhammadan purchaser defendant. To add to the difficulties of the case, there was no evidence to show the exact nature or scope of the custom of pre-emption prevailing in the district, nor was it proved that the plaintiff had satisfied the requirements of the Muhammadan law of pre-emption as to immediate and confir-[272] matory demands, or that there was any custom which absolved him from compliance with those requirements, or that he was at any time before suit willing to pay the actual contract price. In a case of this character the Full Bench ruling of the majority of the Court in Chowdhree Brij Lal v. Rajah Goor Sahai could furnish no help, and the learned Chief Justice dealt with it adequately (and entirely with my concurrence,) at page 516 of the printed report. I remember that in the course of the hearing of that case, the theory of the law of pre-emption originating in an evolution of the Hindu law doctrine relating to alie-nations by members of a joint undivided Hindu family could not be driven far enough to cover the case then before us, and whilst fully concurring with the learned Chief Justice I pointed out that the use of the word shufa, a technical Arabic expression of the Muhammadan law, in the pre-emptive clause of the wajib-ul-arz, necessarily implied that it referred to custom as regulated by the Muhammadan Law of pre-emption. The learned Chief Justice and myself concurred in holding that in the absence of evidence of any special custom different from or not co-extensive with the Muhammadan law of pre-emption, that law must be applied to the case, and that the suit was to be governed thereby. It is needless to add that the rule thus laid down by Sir John Edge, the present Chief Justice of this Court, is in full accord with the principle of the ruling of Sir Barnes Peacock, C.J, in the Full Bench case of Fakir Rawot v. Sheikh Imambaksh to which I have already so often referred. I have referred to this case in particular at such length, because it explains and affirms the important doctrine to which it relates, and upon which the learned Chief Justice has acted in the more recent case. One of them is the case of Arjun Singh v. Sarfaraz Singh which happened to be an appeal under s. 10 of the Letters Patent from my own judgment sitting as a single Judge for deciding what have been termed “petty cases.” The case was one of pre-emption based upon the pre-emptive clause of the wajib-ul-arz and it related to rival suits by rival pre-emptors, and in that case the learned Chief Justice [273] and my brother Brodhurst concurred in holding, following the analogies of the Muhammadan law of pre-emption, which my judgment necessarily involved, that the pre-emptor's claim was inadmissible, since to allow it would have the effect of defeating the rule of that law that a pre-emptor must buy the whole and not part only of the property which he is entitled to pre-empt. Now, it is important to remark that the analogical importation of the rule of the Muhammadan law of pre-emption was necessitated in that case because the pre-emptive clause of the wajib-ul-arz on which pre-emption was claimed, was silent upon that subject. The only other case upon this part of the argument to which I wish to refer is the case of Muhammad Wilayat Ali Khan v. Abdul Rab which was decided by the learned Chief Justice and my brother Tyrrell, and besides being the latest case, I wish to dweli upon it as the most important authority for applying the rule that the analogies of the Muhammadan law of pre-emption must necessarily he respected in pre-emption suits not only out of choice but ex necessitate rei, as the only way of escaping the anomalies which the legal history of the administration of justice and jurisprudential notions would join in repudiating. In that case under one and the same deed a share in a village and a piece of land in the city of Moradabad were sold; and the plaintiff was entitled to pre-emption in respect of both the parcels so conveyed. In respect of the share in the village his right of pre-emption rested on the pre-emptive clause of the wajib-ul-arz, and in respect of the piece of land in the city his right of pre-emption arose out of the rule of Muhammadan law.

The suit was framed so as to seek enforcement of pre-emption in respect of both the properties conveyed by the sale, and there can be no doubt that such a suit was maintainable. It was however found that in respect of the piece of land in the city, the essential preliminaries of the immediate and confirmatory demands required by the Muhammadan law of pre-emption had not been duly performed, and that therefore the suit to that extent would necessarily fail but in respect of the share in the village his right of pre-emption was not affected under the terms of the wajib-ul-arz.

[274] In this state of things the learned Chief Justice applied the principle of the rule that a pre-emptor when he is entitled to pre-emption in respect of the entire subject of the sale, cannot break up the bargain of sale, and following the ratio his Lordship laid down the rule that where a pre-emptor has disqualified himself under the Muhammadan law from claiming a portion of the property sold, he is prevented from maintaining his suit for another portion claimed under the provisions of the wajib-ul-arz though he is willing to pay the full purchase money and to leave in the vendee's bands the portion as to which he was disqualified under the Muhammadan law.

Now this ruling and the ratio upon which it proceeds recognises no less than four important principles of the Muhammadan law of pre-emption, and applies those principles to pre-emption claimed under the wajib-ul-arz, the terms of that document being silent upon the points to which those principles were applied. The first is that a pre-emptor cannot break up a bargain of sale unless the sale includes property in respect of which he has no right of pre-emption, as was the case before my brethren Straight and Brodhurst in Harjas v. Kanhya. The second principle is that the scope of a pre-emptive suit must comprehend the entire property to which the plaintiff's pre-emption extends, included in the bargain of sale. The third is that where a part of the pre-emptive claim fails the whole must fail, because a decree such as the Muhammadan law of pre-emption recognises cannot be framed. The fourth is that the rule against a breaking up of a bargain of sale is so fundamental that a defect in that respect is not cured even by the pre-eruptor's willingness to pay the entire price and leaving a portion of the property in the hands of the vendee.

Now, if I am right in thinking that this is the effect of the ruling, I must necessarily be right also in holding that case is a strong and most emphatic authority, consistent as it is with earlier rulings, for saying that this Court has uniformly applied the analogies of the rule of the Muhammadan law of pre-emption even to cases where pre-emption was claimed under the terms of the wajib-[215] ul-arz. And now I wish to make a few observations to show that the adoption of such a course is a matter ex necessitate rei.

In the case of Zamir Husain v. Datuat Ram I made certain observations, which I am afraid were obiter dicta in that case, but which cannot be obiter in this judgment, and I will therefore incorporate them here. Referring to the judgment of Sir Barnes Peacock in Fakir Rawot v. Sheik Emambakhsh I went on to say—‘I entirely concur in these conclusions, which appear to me to be in perfect accord with the rule of justice, equity, and good conscience upon which Courts of justice in India are bound to act in such cases. It is clear that it does not lie within the province of equity to create rules of substantive law, and the maxim æquilas sequitur legem necessarily implies the existence of rules of law which equity has to follow. With the exception of certain provisions of the local Acts applicable to certain provinces of India, like the Pan jab and Oudh, the Legislature, whilst recognizing the existence of the right of pre-emption in India, has hardly provided any rules in regard to that right; and even where the statute book notices the right, the rules laid down therein relate more to matters belonging to the remedy, ad litis ordinationem, than to subjects appertaining to the merits, ad litis deeisionem. The Muhammadan law is the only system prevalent in India which provides substantive rules relating to the right of pre-emption in a systematic form. At least in Upper India the origin of the right of pre-emption is not traceable to any source other than Muhammadan jurisprudence which the Musalmans brought with them to this country. It may therefore be safely laid lown that in all cases in which the right of pre-emption is claimed, the Courts in administering equity will, by analogy, follow the rules of the Muhammadan law of pre-emption, even in cases where the right is not claimed under that law, but under local usage or custom. The rules of customary pre-emption no doubt depend upon the custom itself, but where such custom is silent upon any particular point, the rules of the Muhammadan [276] law of pre-emption upon that point must, by analogy, be taken to be the rule of decision.”

I still adhere to these views and adhere to them so firmly that if I could find it possible to accept the hypothesis that the right of pre-emption in India owes its origin and practical prevalence to the rule of Hindu law as to joint undivided Hindu families, I would, notwithstanding all I have said here and before now from the Bench, unhesitatingly resort to the Hindu law of pre-emption for obtaining analogies such as the administration of the rule of justice, equity and good conscience which cases such as the present necessarily require. But as I have already said, no such Hindu law of pre-emption exists, and it would be in vain to resort to any of the authoritative texts of that law for guidance as to how such cases should be decided. Now, returning to the facts of this particular case, the pre-emptive clause of the wajib-ul-arz whether regarded as stating a custom or formulating the terms of a compact, must be interpreted according to the well recognized rules of interpretation, and among them I take it that one of the most important rules is that when technical terms are employed they are to be understood in such technical sense. I have already quoted the pre-emptive clause of the wajib-ul-arz, and do not find in it any technical term of Hindu law; but on the contrary the right and possessor of that right are described in technical terms of the Muhammadan law of pre-emption. I hold therefore that even as a pure matter of interpretation the custom or contract which the clause indicates, necessarily implies that upon points in respect of which it makes no specific provision to the contrary, the analogies of the Muhammadan law of pre-emption were intended by the parties to be imported, and that therefore in this case the rule of that law should govern our decision.

I might have ended my judgment here; but since in the course of the argument much doubt and difficulty was raised over the contention that the pre-emptive clause of the wajib-ul-arz was to be regarded as a contract for sale creating an obligation annexed to ownership of land such as those contemplated by the second para-[277] graph of s. 40 of the Transfer of Property Act (IV of 1882) read with the illustration to that section, I do not wish to end my judgment without dealing with this part of the argument. It was argued that the pre-emptive clause of the wajib-ul-arz being a contract for sale, the defendant's pre-emptive suit which resulted in the decree of 8th September, 1883, must be regarded as a decree for specific performance of a contract for sale, and that since the rule of equity requires that which should have been done may be taken to have been done at the time when it should have been done, therefore the sale of his share by Radha Ballab on 4th January 1883, to Sri Ram and Chet Earn, plaintiffs respondents, instead of the defendant-appellant, must be taken to be the date on which the title of ownership of the pre-empted share vested in the defendant-appellant Deokinandan, entitling him by dint of such ownership to the profits of the vended share for the interval between the date of the sale, namely 4th January 1883, and the actual enforcement of the defendant-appellant's pre-emptive decree by formal possession, namely, 1st December, 1883, the which profits are the subject-matter of the present litigation. It was also suggested as an alternative argument that even if ownership did not vest in the pre-emptor Deokinandan, defendant, at the date of the sale to plaintiff's, lie could claim the profits as the measure of the damages for the breach of the pre-emptive covenant in the wajib-ul-arz and recover such damages from the plaintiffs respondents, and therefore the present suit should have failed.

Now, in order to deal with this hypothesis, it is in the first place necessary to ascertain what a contract for sale is under our law, and in the next place to point out for the sake of further clearness, that upon the hypothesis of this part of the argument, the pre-emptive clause of the wajib-ul-arz is to be taken as a contract for sale by Radha Ballab in favour of the defendant Deokinandan, who may analogically be called the would be purchaser, the sale of 4th January, 1883 by Radha Ballab to the plaintiffs-respondents Sri Ram and Chet Ram must be regarded as a breach of the contract for sale made by Radha Ballab with the defendant Deokinandan, and [278] it is far from being unimportant to bear in mind that the plaintiffs-respondents were no parties to the contract, though they may be taken to have purchased with notice of the custom or covenant contained in the pre-emptive clause of the wajib-ul-arz.

Viewing the case in this manner, the question arises, what is a contract for sale as distinguished from an actual sale? The answer is well furnished by the excellent definitions contained in s. 54 of the Transfer of Property Act (IV of 1882), which definitions formulate what I understand to have always been the law of British India:—“Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised,” a definition which clearly shows that the contract is an executed contract transvesting ownership the moment such contract is completed.

“A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.” A definition which clearly shows that the contract is executory as distinguished from sale, which is an executed contract. And this excellent definition is followed by the significant enunciation of the rule that such a contract “does not of itself create any interest in or charge on such property.”

In a recent case I pointed out that this distinction is well founded in jurisprudence, and what I wish to do now is to show that even in the English Courts of equity, where peculiarly technical distinctions exist between what are known as legal estates as distinguished from equitable estates, a contract for sale does not per se and before the actual conveyance by sale invest the obligee of such contract, namely, the would be purchaser, with ownership of the property in respect of which he has entered into the contract for sale. In the next place I will show that in India the doctrine of legal estates as distinguishable from equitable estates has never been recognized as relating to conveyances among Hindus and Muhammadans in the mufassil.

Now dealing first with the exact doctrine of the Courts of equity in England on this point, I do not think anything is to be gained by multiplying authorities, and I do not think I can do better than [279] quote a passage from the judgment of Sir Thomas Plumer, M.R, in Wall v. Bright which was considered and approved by the House of Lords in Shaw v. Foster. Referring to the English doctrine of equity that the vendor of a contract for sale becomes a trustee for the vendee, the Master of the Rolls went on to say:—

“The vendor is therefore not a mere trustee; he is in progress towards it, and finally becomes such when the money is paid, and when he is bound to convey. In the meantime he is not bound to convey; there are many uncertain events to happen before it will be known whether he will ever have to convey, and he retains for certain purposes his old dominion over the estate. There are these essential distinctions between a mere trustee and one who is made a trustee constructively by having entered into a contract to sell, and it would, therefore, be going too far to say that they are alike in all respects. The principle that the agreement is to be considered as performed, which is a fiction of equity, must not be pursued to all its practical consequences. It is sufficient to say that it governs the equitable estate without affecting the legal.”

This passage was cited by Sir R. Palmer in his argument for the respondent in Shaw v. Foster, and the report shows (p. 330) that the rule thus laid down was regarded by Lord Cairns as the same as that laid down by Lord Justice Turner in Sherwin v. Shakspear, and Lord Chancellor Hatherley in delivering his judgment in the House of Lords, referring to the passage which I have quoted from the judgment of Plumer, M.R, went on to say:—

“What was meant to be said by him in that case, and by me in the present, is this, that you must always take that coupled with this remark: that as regards the contract itself, which by a fiction of equity, as Sir Thomas Plumer calls it (for the words are his, and not mine), is considered to be complete when it ought to be complete you must not so use the words as to do away with the true intent of that fiction of equity, which supposes the money to be paid away with one hand and the estate to be conveyed, away with [280] the other. In other words, you must not use that doctrine as a means of impeding the completion of the purchase.”

The dictum of Plumer, M.R, in Wall v. Bright, and the manner in which that dictum was dealt with by the House of Lords in Shaw v. Foster was the subject, of much instructive consideration and almost criticism by Jessel, M.R, in Lysaght v. Edwards, but it would be lengthening this judgment unnecessarily if I said anything more than saying that the principles upon which the judgment of Jessel, M.R, proceeded were essentially based upon the English doctrine of real property which draws a distinction between what are called legal estates as distinguishable from equitable estates, with reference to the period of the trans-vesting of ownership by a contract for sale as distinguished from an actual conveyance by sale. All I need add is that notwithstanding this distinction, which is unknown to the Indian law (beyond the enforceability of a contract for sale against an actual purchaser with notice of the antecedent contract for sale such as s. 40 of the Transfer of Property Act (IV of 1882) contemplates), Jessel, M.R, referring to the vendor in a contract for sale, went on to say:—

“He is not entitled to treat the estate as his own. If he wilfully damages or injures it, he is liable to the purchaser, and more than that, he is liable if he does not take reasonable care of it. So far he is treated in all respects as a trustee, subject of course to his right to being paid the purchase money and his right to enforce his security against the estate. With those exceptions, and his right to rents till the day for completion, he appears to me to have no other rights.”

Now supposing for a moment that the English law as to equitable estates as distinguished from legal estates was to be applied to pre-emptive clauses of the wajub-ul-arz two things occur to me as a necessary consequence of such a supposition. The first is that the moment such a clause is duly entered in the wajib-ul-arz no co-[281] sharer of a village can fell his trees or do any other act of ownership derogatory to the estate under the hypothesis started in the course of the argument, because by doing so he might be reducing the value of the estate which he has already contracted to sell to him who may or may not claim pre-emption under the pre-emptive clause of the wajib-ul-arz. The next matter which I wish to point out is that even under the English law relating to equitable estates depending much upon the doctrines of specific performance of contracts for sale, Jessel, M.R, took care in the judgment from which I have quoted and in the words which I have emphasized to point out that among the exceptions to which even the fiction of the English Courts of equity as to equitable estates was subject, was the exception that until the conveyance of sale is actually completed the holder of an obligation to a contract for sale is not entitled to the rents, but the vendor who entered into such a contract for sale.

I think it is needless to multiply authorities to maintain the pre-position that even under the English law of specific performance of the contract for sale, and in the absence of specific covenants in the contract itself to the contrary, and before actual payment of the price, the Courts of equity in England will not enforce such a contract in such a manner as to deprive the vendor, namely the obligor of a contract for sale, of the rents and profits of the estate during the interval between the contract for sale, and the actual performance of that contract whether by actual conveyance by sale or by decree of Court which enforces such performance. Whatever the practice or rules of procedure may be in the English Courts of equity, one thing is certain, that the manner in which such decrees should be enforced here is clearly prescribed in s. 260 of the Code of Civil Procedure (Act XIV of 1882) which I find it impossible to read in any sense inconsistent with s. 214 of the same enactment, which deals with decrees passed in suits to enforce the right of pre-emption in particular.

Then comes another point in this part of the case, and in considering it, I have asked myself the question: Does the law of British India recognize any distinction between equitable estates [282] and legal estates as understood in the English law in cases of the contract for sale and the rules of specific performance of such contract, when in breach of such a contract a third party has acquired an interest in the property whether by mortgage or by actual sale? My answer to the question is an emphatic negative, subject of course to the rule of justice, equity and good conscience upon which the second paragraph of s. 40 of the Transfer of Property Act (IV of 1882) is founded. And even in respect of that clause I hold, and I believe consistently with the principles of the Specific Relief Act (I of 1877) that when a contract for sale is made ownership of the property to which such contract relates is not transferred to the obligee of such a contract before the actual completion of the sale and more especially in cases where he has not already paid the price.

This would lead me to the citation of Indian authorities (including some of the rulings of the Lords of the Privy Council in appeals from British India); but before I do so I think it is as well to finish what I have been saying as to the doctrines of equity in Courts in England on the subject of the estate which the obligee of a contract for sale acquires under such a contract. I will quote from a text book of authority, Dart on Vendors and Purchasers, and the 5th edition of that work at page 246 contains the following:—

“It is sometimes stated, in general terms, that by the contract, the purchaser becomes, in equity, the owner of the property; but ‘this rule applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others. If it could, a contract for the purchase of an equitable estate would be equivalent to a conveyance of it. Before the contract is carried into effect, the purchaser cannot, against a stranger to the contract, enforce equities attaching to the property’—per Lord Cottenham, in Tasker v. Small, 3 M. and C. 70; and see Wall v. Bright, 1 Jac. & W. 501—nor, Semble, can he as against the vendor enforce such equities, without at the same time praying or offering specific performance of the contract itself.—Fox v. Purssell, 3 Sma. & G. 242.”

[283] Then as to the crops and profits pending the completion of the actual sale, the same authority lays down the following as the law and equity as administered in England, as to the rights and obligations arising out of the contract for sale:—

“Up to the time fixed for completion, the vendor is, in the absence of special stipulation, entitled to the crops, or other ordinary profits of the land. He would not however, it is conceived, be entitled to take crops in an immature state, or otherwise than in due course of husbandry. After the time fixed for completion, and pending negotiation, he may, it appears, in due course of husbandry, cut coppice or get in crops, but the net profits will belong to the purchaser. Where the contract was for the purchase of an estate, including the growing crops, to be completed and possession given on the 24th June, and the time was extended by consent till the 29th September, and the vendor in the interval sold the crops, the purchaser was held entitled, in equity, only to the crops growing at the time of the actual completion, and was left to his remedy (if any) at law for the recovery of the produce of the crops.”

Now, even if the pre-emptive clause of the wajib-ul-arz, of which I have quoted the ipsissima verba at the outset, were to be regarded as a contract for sale, and even if I could hold that it was governed by the doctrine of the English Courts of equity as to equitable estates, I could not hold that with reference to the terms of the pre-emptive clause itself, time was of the essence of the contract, or that it created any specific rights depending upon the fixation of the date of the transfer, in favour of the defendant respondent Deokinandan, any more than in favour of any other existent or non-existent co-sharer of the village who under the general pre-emptive clause might in future be entitled to the right of pre-emption. And I take it that in such a state of things the Courts of equity in England, in view of the circumstance that neither the actual would-be-purchaser (that is, a possible pre-emption) was mentioned in the covenant contained in the pre-emptive clause of the wajib-ul-arz, nor the so-called contract for [284] sale specified any specific period when such contract was to be completed by actual sale, in view also of the circumstance that the so-called contract for sale might have been enforced not only by Deokinandan, defendant-respondent, but also by other co-sharers of the village, by rival pre-emptive suits, would never hold that even the equitable estate of ownership vested in the defendant Deokinandan (pre-emptor) at the time when the pre-emptive clause of the wajib-ul-arz was framed and duly entered in that document. Nor can I hold upon the same supposition, that those Courts would award profits of the estate to the defendant-respondent Deokinandan (pre-emptor), for the period intervening between the date of the covenant in the pre-emptive clause of the wajib-ul-arz (taking under the hypothesis such clause to be a contract for sale) and the date when he actually enforced the covenant by paying up the price and acquiring possession under his pre-emptive decree. I have dwelt upon this matter at such length because the rule of equity in such cases was seriously doubted in the course of the argument, and also because it would be an unsound proposition to lay down that covenants contained in the pre-emptive clause of a wajib-ul-arz in these Provinces are to be regarded as governed by the peculiarly technical notions of the English Courts of equity as to equitable estates, or that the rules of those Courts as to the specific performance of contracts for sale are to be applied in their integrity to pre-emptive clauses of the wajib-ul-arz. I have said already more than once that the British Indian law recognises no such distinctions as those between equitable estates as distinguished from legal estates in England, for here the Courts take the actual date of a completed sale as the date of the ownership of the property passing from the vendor and transvesting in the vendee, entitling the latter to all the rights of ownership, including of course, the right to receive profits.

Now, before citing the case-law upon the subject, I may call attention to the principle upon which s. 85 of the Contract Act (IX of 1872) is based, because in my opinion that principle is identical with the one on which the definition of the contract for sale [285] of immoveable property in s. 54 of the Transfer of Property Act (IV of 1882) is founded. And in this connection I think the best case to cite is Dhondiba Krishnaji Patel v. Ram Chandra Bhagwat where Westropp, C.J, dealing with the case before him, does not appear even to have doubted that under the Indian law the transvesting of ownership does not take place by the mere fact of a contract for sale, for that learned Judge after referring to s. 85 of the Indian Contract Act (IX of 1872) goes on to say:—

“In the mufassil of this Presidency, where there has been a contract for sale of immoveable property and a suit by the vendee for specific performance of it, the decree for the Specific performance of the contract (coupled with the payment of the purchase-money) pass and have been treated, so long as we can recollect, as sufficiently passing, i.e, transferring the ownership to the vendee, and entitle him to the possession of the property.”

Now, as to this case, I do not think it is necessary for me to say anything as to how far I am prepared to accept that ruling notwithstanding the provisions of ss. 260, 261 and 262 of the Code of Civil Procedure (Act XIV of 1882) which apparently did not govern the case before the learned Chief Justice of Bombay, and I think it is enough to say that the case is a good authority for showing that the execution of a contract for sale is not a transvestive fact by itself in the sense of passing ownership from the obligor to the obligee of such a contract for sale, until such contract has taken effect either by actual conveyance by sale or under a decree of Court to that effect. And I think I may say in passing, that this is consistent with the doctrine of the Muhammadan law of pre-emption as to the in vestiture of the ownership in the pre-emptor of the pre-empted property, and the period at which such investiture of ownership is to be deemed as to have actually taken place. And I think I may further point out that under both the views of the aspects of the case, it is important, as Westropp, C.J, pointed out, that the actual payment of purchase-money was a matter of no insignificance.

[286] But there are cases of higher authority to show that a contract for sale, that is an agreement to transfer by sale, any property to any person or persons, is a merely executory contract, and does not operate as a sale in praesenti. The Lords of the Privy Council had to deal with this question in Rajah Sahib Perhlad Sein v. Maharajah Rajender Kishore Singh and the connected case against Baboo Budhoo Singh (vide p. 305) where, after stating that the Sadar Court had held that “a complete title to the lands passed to the Rajah by virtue of the bill of sale on its execution, and (by a supposed application of the doctrines of English Courts of equity) that the vendor in possession of the lands was to be treated as having only a lien for the unpaid balance of the purchase-money, and was to be held accountable as a mortgagee in possession for the rents and profits,” their Lordships, after doubting whether such doctrines were applicable to a transaction of this nature between Hindus or between a Hindu or a Mussulman, went on to say (vide pp. 306-7), “It is not easy to see what principle of an English Court of equity, supposing such to be properly applicable to the case, would support the conclusions to which the Judges of the Sadar Court have come upon the facts before them. Their business was to decide the rights of the parties under the particular contract, and upon the facts found by the Courts below, according to equity and good conscience. They seem to have ruled that the effect of the execution of a bill of sale by a Hindu vendor is, to use the phraseology of English law to pass an estate irrespectively of actual delivery of possession; giving to the instrument the effect of a conveyance operating by the Statute of Uses. Whether such a conclusion would be warranted in any case is, in their Lordships' opinion, very questionable.”

Now, the principle thus laid down by their Lordships was approved by them again in Ranee Bhobosoondree Dasseah v. Issurchunder Dutt, where repeating their observations in the earlier case they said—

“The bill of sale in such a case can only be evidence of a contract to be performed in future and upon the happening of a contingency. [287] of which the purchaser may claim specific performance if he comes into Court showing that he has himself done all that he was bound to do.”

I regard the two Privy Council rulings which I have cited, as distinct authority for holding, that at least in India, if not also in England, a contract for sale such as the covenant contained in the pre-emptive clause of the wajib-ul-arz in this case may possibly be taken to be, the investiture of ownership with its necessary legal incident of the right to receive profit does not take place till an actual conveyance by sale is made, or the decree of Court has been obtained awarding specific performance of the contract for sale under the law governing such matters. Before going any further I think I may say that the interpretation which I have thus placed upon the Privy Council rulings is consistent with the interpretation placed upon those rulings by Couch, C.J, in Tara Soondurce Chowdhrain v. The Court of Wards where it was held that an agreement to sell did not by itself operate as a present transfer of the property, and that upon the ground of such a transfer no suit of the nature of an action in ejectment could be maintained by the obligee of such a contract for sale, as against a person in possession. Yet, in the course of the argument in this case, it was seriously suggested that because this covenant contained in the pre-emptive clause of the wajib-ul-arz must be taken as a contract for sale, therefore upon the date when such covenant was entered in the wajih-ul-arz the defendant, Deokinandan along with some others, acquired the same rights as those which belong to the obligee of a contract for sale as understood in the English Courts of equity, thus conveying upon that hypothesis, to the defendant-appellant Deokinandan rights similar to those which belong to the obligee of a contract for sale under the peculiarly technical notions of the English Courts of equity as to equitable estates vesting in a transferee before the actual conveyance is completed.

I think I have said enough to show, that such cannot be the case, either under the English rules of Equity Courts or under our [288] law, as to the transvesting of the title of ownership, including of course the question as to the right to profits.

But, barring the matters of legal principles as to which I have expressed my opinion, perhaps the most important point is for us to see what actually occurred in this case with reference to the enforcement of the right of pre-emption under the pre-emptive clause of the wajib-ul-arz. I have already pointed out that clause used technical terms of the Muhammadan law of pre-emption for creating or recognizing the right which that clause intended to provide for. I have also said enough to show that in my opinion that clause must not be read obliviously of the terms of the Muhammadan law of pre-emption which it employs; and I now proceed to show that the defendant Deokinandan himself understood the clause in that sense when he instituted his suit against the plaintiffs-respondents resulting in the decree of 8th September 1883, under which he obtained formal possession as pre-emptor on the 1st December, 1883.

The suit which so terminated was not a suit framed so as to render it a suit for specific performance of a contract for sale as understood either in the English Courts of equity or understood by our own Courts. Nor, therefore, would the rules for specific performance of contracts' for sale, whether as recognized in the Courts of equity in England or as recognized by our law in ss. 260, 261 and 262 of the Civil Procedure Code, apply to such a case except by careful analogy. The suit as framed; and as understood all along by both the parties was an ordinary suit for pre-emption, and it was so dealt with by the Court which decided it by its decree of 8th September 1883. That decree imports nothing from the technical notions of the English equity Courts as to the specific performance of contract for sale, or as to the vesting of equitable estates, but is a decree simply framed, as it should have been, under s. 214 of the Code of Civil Procedure. The decree is to the effect that the plaintiff pre-emptor, (namely the defendant-appellant Deokinandan) was to obtain possession of the pre-emptive property on payment of a certain sum of money into Court and that on his failure, [289] his suit for pre-emption would stand dismissed with costs. The decree, in keeping with the terms of the pre-emptive clause in the wajib-ul-arz, was totally silent as to the profits of the estate conveyed by Radha Ballab to Sri Ram and Chet Ram, plaintiffs-respondents, on the 10th January 1883; for the period intervening between the date of the sale and the actual enforcement of pre-emption by any pre-emptor, including the defendant-appellant Deokinandan, under a decree of Court. The decree said nothing as to such profits being regarded as damages recoverable by the pre-emptor for breach of the covenant contained in the pre-emptive clause of the wajib-ul-arz, nor did it say that in any case such a decree could ever be made in a pre-emptive suit such as the one which terminated in favour, of Deokinandan defendant-appellant by the decree of 8th of September 1883.

Now, I hold that in determining the questions which arise in this case, even if we avoided the real points of importance which arise out of the argument before the Full Bench, we are bound in this case to abide by the terms of the decree of 8th September 1883, in favour of Deokinandan, defendant-appellant. No matter whether the decree such as that which might or might not upon terms of the pre-emptive clause of the wajib-ul-arz have been made, an order that the profits of the pre-empted estate between the date of the sale by Radha Ballab to the plaintiffs-respondents (i.e, 4th January, 1883) and the date when the defendant-appellant obtained possession under his pre-emptive decree of 8th September, 1883, is absent, as it should have been. The decree whether rightly or wrongly dealt with that litigation not as a suit for specific, performance of a contract to sell, but as a pre-emptive suit, and the decree is in my opinion final for purposes of determining the rights of the parties is this litigation, for that decree was a civil Court's decree and dealt with the rights of the parties as to the sale of 4th January 1883, in respect of which the pre-emptive right was claimed by the defendant-appellant Deokinandan.

I hold that decree did not award the profits of the estate sold so as to enable the pre-emptor Deokinandan defendant-appellant [290] to claim them as his own for the period between the sale to the plaintiffs-respondents and the defendant's enforcement of his pre-emptive decree by payment of the price and obtaining possession, which did not take place till the 1st of December 1883. For these reasons, which I am sorry have taken up so much time to explain, I hold that to this case “the principles enunciated by me in Deodat v. Ramautar apply, and that the rule of decision should be the same as that adopted by Roberts and Turner, JJ., in Buldeo Pershad v. Mohun to which I have already referred as a case on all fours with the present case. It follows as a natural corollary that, with much respect, I am unable to accept the rule laid down by my brethren Straight and Tyrrell in the case of Ajudhia v. Baldeo Singh, which has indeed been the cause of this case being referred to the Full Bench.

Since the effect of the learned Chief Justice's order of the 3rd January 1888 is to refer the whole case to the Full Bench, my opinion is, that the order of the learned Judge of the lower appellate Court should be upheld, and that this appeal be dismissed; the costs to abide the result.

Appeal dismissed.