Tyrrell and Mahmood, JJ.:— After stating the facts of the case and the view of the Sub-ordinate Judge on the question whether Kaniz Bano was “stranger,” continued:)—The Sub-ordinate Judge has cited no authority in support of this view, and we have no hesitation in holding that it is an innovation which is not warranted by any principle of the Muhammadan law, whether of the Sunui or of the Shiah school. It is true that among Shiahs, as among Sunnis, the wife is entitled to inherit a share in the property of her husband along with his other heirs. But the right of inheritance under the Muhammadan law confers no vested interest so long as the owner of the property is alive. Till the devolution of inheritance takes place by the death of the proprietor his heirs have no legal interest or share in the property, and can in no sense be regarded as co-sharers or co-parceners in the property. The rights of a Muhammadan proprietor are absolute, and so far as his proprietorship is concerned, his heirs have no more rights than absolute strangers wholly unconnected by consanguinity or marriage. The word “stranger” as used in the Muhammadan law of pre-emption has no reference to any relationship arising from consanguinity or marriage. The word is a correlative term to “pre-emptor.” A “shafi” or pre-emptor is a person who possesses the right of pre-emption,—all persons who do not possess such right are “strangers” under the Muhammadan law of pre-emption. In a case like the present the criterion is whether the vendee could have enforced the right of pre-emption if the rate had taken place in favour of a stranger. It is not contended before us that Kaniz Bano holds any such position, by virtue of her marriage with Muzaffar Ali, as would have entitled her to question a sale made by him in favour of a stranger, on the ground that she had the right of pre-emption. According to the Sharaya-ul-Islam, a book of as high an authority among the Shiahs as the Hedaya is among the Sunnis, “the shafi is every owner of a share in a joint and undivided property who is able to pay the price” of the share sold. It has already been shown that Kaniz Bano, as an heir to her husband, has no vested interest in his property, and that she can in no sense be regarded as a co-sharer of her husband. It therefore follows that she had no right of pre-emption in respect of the property sold to her, and must be regarded as a stranger a sale in whose favour involves infringement of the right of pre-emption under the Muhammadan law.
The Sub-ordinate Judge's opinion upon the second point in this case is expressed in the following terms:—“There cannot be a claim for pre-emption when a house is given for dower. In the opinion of the Court the fact that the property be fixed as dower and given to the wife, or that a certain sum he fixed as her dower, and afterwards, with the mutual consent of the husband and the wife, a property be given in lieu of the dower, makes no difference. The result, in the opinion of the Court, is that, when any property is given to the wife in lieu of her dower, there can be no claim for pre-emption.” This view of the law is only partially correct, and its inaccuracy lies in ignoring the great distinction which exists be tween assigning a property as dower and selling it in payment of the dower-debt. The rule of the Shiah law upon this point is thus expressed in the Sharaya-ul-Islam:—“If the share has been assigned as a dower, or given in charity, or bestowed by way of gift, or in compromise, it is not subject to the claim of pre-emption.”
The Mafatih, another book of authority on the Shiah law, explains the rule in similar terms:—“The transfer must be by sale. So, if the transfer be made as dower, or as a gift, or in compromise, then, according to the prevalent doctrine, there is no right of preemption.” The rule, that sale is an essential condition precedent to the operation of the right of pre-emption, is a well-established principle of Muhammadan law, and in this respect no serious difference exists between the doctrines of the Sunni and the Shiah schools. But the lower Courts have erroneously applied the rule to the transfer in question in the present case. Under the Muhammadan law, sale is defined to be “the exchange of property for property by consent of the parties,” each property being regarded as the price of the other. “Price,” as a term of Muhammadan law, includes not only money, but also any other kind of property capable of being valued at a definite sum of money. But when a transfer of property takes place for a consideration, not capable of being estimated at a definite money value, such transfer is not regarded as sale at all, and does not give rise to the right of pre-emption. Since the payment of the price by the pre-emptor is an essential condition precedent to his acquiring the property by virtue of his pre-emptive right, it follows, ex necessitate rei, that the right of pre-emption can operate and be effectively enforced only in those cases in which the consideration for the transfer is either already filed at a definite money-value, or is capable of being so ascertained. Now, the Muhammadan law imposes no limit upon the amount of dower which may be settled on a wife in consideration of marriage. Therefore when a man, on marrying a woman, does not fix the amount of dower at a money-value, but assigns property to her as her dower, the right of pre-emption cannot have any operation—the transfer not being a sale, and the consideration thereof being unascertained and unascertainable at a definite money-value. But no such impediment to the operation of the right of pre-emption exists in cases in which the dower was originally fixed at an ascertained amount, and property is subsequently sold in lieu of a part or the whole of such amount of dower. Dower under the Muhammadan law is regarded as a debt due by the husband to the wife.
It is an equally well-recognized rule of that law that transfer of property by the debtor to the creditor in payment of the debt constitutes sale, and the rule is wide enough to include transfer of property by the husband to the wife in payment of her husband dower. In the present case the deed of sale clearly states the amount of dower and the part thereof in payment of which the sale took place. The lower Courts were therefore wrong in holding that the transfer did not give rise to the right of pre-emption. This view of the law is supported by the ruling of the late Sadr Diwani Adalat of these Provinces in the case of Pearee Begum v. Sheikh Husmat Ali, dated 14th May, 1864, published at page 475 of the Reports for the year. The judgment in that case proceeded principally upon the authority of the Hedaya, and it is therefore to be inferred that the parties to that suit were Sunnis. The reason of the rule, however, is common to both the Sunni and the Shiah schools of the Muhammadan law. The learned pleader for the respondents, in attemping to draw a distinction between the Sunni and the Siah doctrines on the subject, has pointed out a passage in the Man-la-yahzur-hul Faqih—a Book of Hadis, or traditions of recognized authority among the Shiahs—which contains a tradition related by Hasan Ibn Mahbub on the authority of Abu Jaafar. The following is a literal translation of the original Arabic text of the tradition:—
“I asked him in regard to a man who married a woman in lieu of (Ar: ala) an apartment of a house whilst having co-sharers in that house. He said that it was lawful for him and for her, and none of the co-sharers had a right of pre-emption against her.”
Whilst fully recognizing the authority of the tradition in the Shiah law, we are of opinion that it does not support the contention of the learned pleader for the respondents. The original Arabic expression (ala baitin) which occurs in the tradition, if translated absolutely literally and regardless of idiom, means “on an apartment,” but the word ala (on), as it occurs in the tradition, necessarily implies by its context that the assignment of the apartment of the house as dower must have been made at the time of the marriage when dower was originally settled. Therefore the tradition only supports and does not go beyond the rule laid down in the Sharaya-ul-Islam, and the Mafaith already cited. The learned pleader for the respondents, who is a Muhammadan lawyer, acquainted with the original Arabic texts, has been unable to point out any authority which would support his contention that a distinction exists between the Sunni and the Shiah doctrines upon the point under consideration.
For these reasons we are of opinion that neither thee circumstance that the vendee is the wife of the vendor, nor the fact that the sale took place in Lieu of a portion of the vendee's dower can operate as an impediment to the enforcement of the right of pre-emption in this case. The Court of first instance does not appear to have excluded any evidence in the case; but neither of the lower Courts has disposed of the remaining pleas urged by the defendants on the merits. We therefore set aside the decree of the lower appellate Court and remand the case to that Court under s. 562, Civil Procedure Code, for a proper adjudication of the case.